United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C SAUNBY (Solicitor) Toller Hales & Collcutt Castilian Chambers 2 Castilian Street Northampton NN1 1JX
For the Respondent	THE RESPONDENT NEITHER BEING PRESENT NOR REPRESENTED


 


JUDGE PETER CLARK

Procedural History

1. The Applicant, Mr Rahim, was employed by the Respondent below as a bus driver from October 1999 until his resignation in March 2000. On 11 May 2000 he presented a complaint of unlawful deductions from wages to the Employment Tribunal.
2. He gave some particulars of his complaint on 8 August setting out details of an incident which he said took place on 27 December 1999 when he was harassed by a number of young people. Permission to amend in that form was granted by a Chairman on 11 August without reference to the Respondent and without a hearing.
3. At a directions hearing attended by both parties before a Chairman, Mr C R Ash, sitting alone on 1 September 2000 at Bury St Edmunds, that Chairman directed that the Originating Application be amended to include a claim of automatic unfair dismissal contrary to Section 100 of the Employment Rights Act 1996 (that is dismissal for a Health and Safety reason). Against that order the Respondent appealed by a Notice lodged on 13 September 2000 (EAT 1165/00. The first Appeal), that was the date also on which Mr Ash's directions order, with reasons, was promulgated.
4. A hearing of the complaints was fixed for 2 November. Meanwhile, on 9 October at a Preliminary Hearing held before a division of the Employment Appeal Tribunal presided over by Judge Reid QC the first appeal was permitted to proceed to a full hearing on the grounds that it raised an arguable point of law.
5. Following an earlier letter dated 18 September, requesting a postponement of the substantive Employment Tribunal hearing, the Respondent's solicitors, instructed after the hearing before Mr Ash on 1 September, wrote again to the Employment Tribunal on 10 October, informing it of the outcome of the Preliminary Hearing and again requesting a postponement of the substantive hearing. Those applications were refused by letters from the Employment Tribunal dated 5 and 16 October respectively. Against that second refusal the Respondent lodged a second appeal (EAT/1281/00) on 17 October.
6. On 18 October the Applicant's representative wrote to the Employment Tribunal consenting to the postponement of the hearing fixed for 2 November and on 25 October the Employment Tribunal wrote to the parties informing them that that hearing date had been vacated. The hearing was adjourned pending the determination of the first Appeal.
7. In the event the Applicant decided not to pursue the unfair dismissal claim under Section 100 of the Employment Rights Act; the parties reached terms of settlement over the unlawful deductions claim, and that settlement was incorporated into an order of the Employment Tribunal dated 22 November, which read:

"The Conciliation Officer having taken action under the provisions of the Employment Tribunals Act 1996 and terms of settlement having been reached between the parties, the Tribunal orders that all further proceedings in this application be stayed."

8. Despite that the Respondent's solicitors wish to pursue both appeals. Consequently, they have been listed before us today for a full hearing, that is, with both parties permitted to attend. The Applicant has unsurprisingly expressed no interest in the outcome of the appeals, he does not attend, and is not represented.
9. In these circumstances we asked Mr Saunby at the outset of this hearing why we should entertain these appeals which appear to be academic. We referred him to the Employment Appeal Tribunal decisions in IMI Yorkshire Imperial Ltd v Hollander and Others [1982] ICR 629, Browne-Wilkinson J presiding and Baker & Others v Super Eye Tools Ltd [1986] ICR 189, Peter Gibson J presiding.
10. The effect of those authorities is helpfully summarised, we think, by Peter Gibson J in Baker where he said at page 191(f):

"We regard it as a misuse of the appellate procedure laid down by Parliament for the resolution of genuine disputes on a genuine appeal on an issue of law from a decision of a Tribunal for that appeal to be pursued in circumstances where there was no live dispute between the parties."

11. Mr Saunby submits that although the litigation has been resolved as between these 2 parties and whilst not seeking to pursue the second appeal, he contends that the first appeal raises a point of law of general practical importance namely in what circumstances can or should a Chairman acting of his own motion add causes of action not sought to be included in the claim by the Applicant himself.
12. Whether or not that is a point of general importance we think is debatable. What is absolutely clear to us is that it is not the function of this Employment Appeal Tribunal to hear and determine academic appeals. The reason is simply that where the parties themselves have no interest in the matter as here, there may well not be argument on one side or the other as in this case. But more particularly this Employment Appeal Tribunal has a busy backlog of cases which parties still in dispute are anxious to have resolved.
13. In these circumstances, we would strongly discourage any party pursuing an appeal after the matter has been resolved. We shall not entertain this Appeal. Both Appeals, consequently are dismissed.