United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For Mr G P Turner	MR A HICKEY (of Counsel)
For Harada Ltd t/a Chequepoint UK Limited	MR A SNELSON (of Counsel) Messrs Dibb & Clegg Solicitors 27 Chancery Lane London WC2A 1NE


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal by Mr Turner against an Employment Tribunal's order that his case on the merits be not heard until after the Employment Appeal Tribunal has heard and determined an appeal by his former employers, which they wish to make against a previous decision of the Employment Tribunal, that held that they had jurisdiction to deal with Mr Turner's complaint.

What the Employment Tribunal must have had in mind when they made the order against which this is an appeal was that the Employment Appeal Tribunal should proceed to hear and determine the jurisdiction issue before the Employment Tribunal heard the merits of Mr Turner's complaint. That seems to us to be a manifestly wrong exercise of the Employment Tribunal's discretion.

Once the Employment Tribunal had held that it had jurisdiction to hear and determine Mr Turner's complaint, it was their duty to get on with the case as soon as was reasonably practicable. It is rare, if ever, that it will be appropriate for an Employment Tribunal to stay further proceedings pending an appeal to this court. They will not lose sight of the fact that Employment Tribunals were set up and were designed to provide a speedy and effective remedy for those who have complaints arising out of their employment relationships. To make the order which was made in this case seems to us to be a negation of the principal duty of the Employment Tribunal. We are satisfied that no reasonable tribunal, properly directing itself, could have reached the conclusion that was reached in this case. The effect of it has been to delay Mr Turner's complaint of unfair dismissal and breach of contract which he wishes to maintain against his former employers. He is entitled, in our judgment, to have his claim heard and determined as soon as is practicable.

As to the jurisdictional argument which Harada Ltd t/a Chequepoint UK Ltd have and which relates to the common law position and also the position under Brussels Convention; those appeals will be listed for preliminary hearings in due course. It would inappropriate for this court to express any concluded view as to the prospects of success of the employer's appeals in those matters at this time, but it seems to us that no injustice will be done to the employers if the substantive claim on unfair dismissal and breach of contract is now to be heard.

Mr Snelson in a conspicuously able argument submits that first of all the Employment Tribunal was entitled to hive off as a separate preliminary issue the question of jurisdiction; secondly, that the decision in Sutcliffe v Big C's Marine [1998] IRLR 428 which was published after the tribunal had decided the preliminary issue represented a change of emphasis in the way that tribunals should approach questions as to whether there should be preliminary issues; thirdly that we should reconsider Sutcliffe for various reasons; fourthly, that if one applies the relevant provisions, then there was no error of law; and finally, it was submitted that by directing that the tribunal get on with the case, the employers will be prejudiced because they will then have submitted to the jurisdiction of the Employment Tribunal. Reference was made to Article 18 in that connection.

We can deal with those submissions briefly.

It seems to us that the guidance which was given in Sutcliffe should be re-emphasised. We see no reason to change what was said in that decision. It seems to us that, in principle, Employment Tribunals should regard applications which are brought before them as a whole requiring to be determined and put an end to in one session leading to one decision. That remains the proper practice for them to follow, and is entirely consistent with the purpose behind their creation and the need for applicants to be able to have their disputes resolved in good time. We see no reason to revisit Sutcliffe or to give any further guidance. It is not correct for the Employment Appeal Tribunal to seek to tie down Employment Tribunals any further than general, and we hope, helpful guidance which was given in that case. So far as the application of those principles in concerned. It seems to us that inadvertently no doubt the learned Chairman was, by his order which we think was wrong, seeking to subvert the purpose of the judgment which was given in Sutcliffe. It is not permissible for Employment Tribunals, it seems to us, in the exercise of their discretion to refuse a party access to its tribunal, merely because there is a pending appeal.

In relation to the prejudice which the employers say they will suffer if they participate. We should just simply say that that does not seem to us to be a sustainable proposition, having regard to the decision of the Employment Tribunal on the jurisdiction issue.

Accordingly, the appeal will be allowed and we give these directions.

For reasons, which do not need to be spelled out, the employers have some discomfort at the thought of the case being heard and determined at Woburn Place. Without in any way accepting that they have any legitimate sense of discomfort, we consider that justice can properly be done between the parties if the case is to be listed for hearing at Stratford. For that purpose, a directions hearing will be required. Because of the delay to Mr Turner's case so far, it is essential, in our judgment, that the Employment Tribunal should deal with this matter expeditiously. At the hearing for directions consideration can be given to what the nature of the dispute is in substance between the parties and what documentation should be disclosed and provided to the tribunal in advance of the hearing and what witness statements should be prepared and exchanged between the parties prior to the hearing. By careful case management we have no doubt that Mr Turner's complaint can be contained within a relatively short timescale. We would encourage the Employment Tribunal to manage it in a way which will achieve an early hearing date. Those are the directions that we give.

MR JUSTICE MORISON (PRESIDENT): Mr Snelson has asked us for leave to appeal against the decision which we have arrived at. We do not grant leave for the following reasons: firstly, it seems to us that an appeal is quite inappropriate at this time; secondly, it appears to be an attempt to prevent Mr Turner's claim from being brought before the Employment Tribunal timeously; thirdly, the Court of Appeal have already made it plain that, in principle, cases should not be split up into separate issues; fourthly, there has been no criticism in the Court of Appeal of the decision given by the Employment Appeal Tribunal in the Sutcliffe case; fifthly, the employer's position will not be prejudiced by our refusing this application for leave. I wish to make it absolutely plain that if the employers seek leave to appeal from the Court of Appeal, neither that application nor the granting of leave without further order from the Court of Appeal should prevent the Employment Tribunal from getting on with this case.