United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	DR J LYNN IN PERSON
For the First and Second Respondents For the Third Respondent	MR MANUS EGAN (of Counsel) Instructed by: London Borough of Newham Legal Services Dept Newham Town Hall Barking Road East Ham London E6 2RP MR RAYMOND HILL (of Counsel) Instructed by: The Treasury Solicitors Queen Anne's Chambers 28 The Broadway London SW1H 9JS


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us, as the first matter of the day, an application by Dr John Lynn for a review in the matter Dr John Lynn v The Board of Governors of Rokeby School and the London Borough of Newham. Those were the original parties; since then the Secretary of State has been added but he takes no part in this part of the case.
2. Today, Dr Lynn has appeared in person, and the first two Respondents, the Board of Governors and the London Borough, appear by Mr Egan. It is not necessary for the purposes of this application to set out the whole procedural history of the matter, but, briefly, in August 1996, Dr Lynn issued an IT1; he followed it with three further ones. Two, in fact, later were abandoned, but two continued and there was a hearing at Stratford at the Employment Tribunal between 5 and 9 October 1998. That led to a judgment sent to the parties on 11 November 1998, and that judgment represented a defeat, in effect, for Dr Lynn.
3. It was found that he had been fairly dismissed by the Respondents (then merely the Governors and the London Borough) and that the effective date of termination of his employment was 1 September 1997. It was found that his complaint of wrongful deduction of wages was not well-founded. It was held that the Respondents had not unlawfully discriminated against him on the ground of his sex and the Respondents were not in breach of the Equal Pay Act 1970 or the European Equal Pay Directive. It was held that the Respondents were not in breach of contract by having failed to include him automatically in the Teachers' Superannuation Scheme and it was noted that his other IT1s were withdrawn and hence dismissed.
4. On 24 November 1998 - that is only shortly after the Decision had been sent to the parties - Dr Lynn asked for a review of that Decision by the Employment Tribunal. He also, on 23 December 1998, lodged a Notice of Appeal to the Employment Appeal Tribunal.
5. On 5 January 1999, the Chairman of the Employment Tribunal declined to review the Decision of 11 November 1998. On 23 April 1999, there was a hearing at the Employment Appeal Tribunal before Mr Justice Morison, President, Lord Gladwin and Mr Straker, and the Decision of that day's hearing was reserved, and it was on 8 June 1999 that an Order in respect of that hearing was made and judgment given.
6. The effect of the judgment then given was that only one point in Dr Lynn's Notice of Appeal was allowed to go forward to a full hearing - what one might call "the Teachers' Pensions Scheme point", and shortly, we will turn to that appeal. But first, we have before us an application for a review.
7. We thus are in a position in which on 8 June 1999 the Employment Appeal Tribunal gave its judgment in response to the hearing on 23 April 1999, and it limited the appeal to the one issue that we have mentioned. On 16 June 1999, Dr Lynn asked the Employment Appeal Tribunal to review that Decision, and then, on 23 June 1999, at the Employment Appeal Tribunal, Mr Justice Morison, President, Lord Gladwin and Mr Straker, declined to review the Decision that had been reserved and sent to the parties.
8. The procedural history, thereafter, is less than clear. On 20 July 2000, I had before me, sitting alone, an application for an extension of time in which Dr Lynn would be able to seek a review. I am afraid to say that I cannot now tell whether I had failed to notice that a review of the Decision of 8 June had already been declined or whether I then understood that the review sought was intended to be a review of the Decision of 23 June 1999, or whether what was in front of me was understood to be a further review of 8 June. It matters not; at all events, time for applying for a review was extended and the Order that emerged from that hearing before me contemplated that the review was to be a (second) review of the Decision of 8 June.
9. On 31 August of last year, Dr Lynn submitted a full application for a review, directed to the hearing of 8 June, and the parties have agreed that because of the difficulties in asking Mr Justice Morison, who is now sitting in Queen's Bench, to come back here to the Employment Appeal Tribunal, that the matter should now include me instead of him, for convenience, and the other two members have remained as they were earlier, namely Lord Gladwin and Mr Straker.
10. Now, because the Employment Appeal Tribunal hears only points of law, its power to review is much less used than that of the Employment Tribunals. Its power to review is found in Rule 33 of the Employment Appeal Tribunal Rules which reads as follows:

"(1) The Appeal Tribunal may, either of its own motion or on application, review any order made by it and may, on such review, revoke or vary that order on the grounds that -

(a) the order was wrongly made as the result of an error on the part of the Tribunal or its staff;

(b) a party did not receive proper notice of the proceedings leading to the order; or

(c) the interests of justice require such review.

(2) An application under paragraph (1) above shall be made within 14 days of the date of the order."

And then there is sub Rule (3) which I need not bother to read.

Only 33(1)(c):

(c) the interests of justice require such review.

is really in play today.

11. Whether the review before us is of 8 June or 23 June, the difficulty that seems to us to present itself to Dr Lynn's position is that as the Employment Tribunal was, on each day, only concerned with errors of law, if the Employment Appeal Tribunal then erred, its error, too, would be likely to be one of law, and hence one primarily to be responded to by an appeal to the Court of Appeal rather than by a review to the Employment Appeal Tribunal.
12. We would accept that if some very plain and obvious error, for example in the recital of a fact, or a very plain and obvious error of law had been made, that, no doubt, could be rectified under the "interests of justice" heading. But, that apart, such other issues would properly be ones of law for appeal to the Court of Appeal, and yet there has been no appeal to the Court of Appeal as to the Decisions of 8 June or 23 June. Mr Egan has drawn our attention to the case of Blockleys PLC v Miller [1992] ICR 749 before the Employment Appeal Tribunal under Mr Justice Wood. That case contains an extensive review of what is intended by the jurisdiction to review and what are the bounds of the ability to review, and at page 756 one finds this:

"It is clear that in the light of the general principles of law applicable, the power of review whether in an industrial tribunal or in this appeal tribunal, must be exercised within a very narrow margin. The following instances appear from the cases: where the issue of jurisdiction arises, British Midland Airways Ltd v Lewis [1978] ICR 782 and Stannard & Co (1969) Ltd v Wilson [1983] ICR 86; where there has been a fundamental procedural error - lack of due process: Trimble v Supertravel Ltd [1982] ICR 440; fraud - appearing very soon after the decision: Yorkshire Engineering and Welding Co Ltd v Burnham [1974] ICR 77; simple cases of minor errors or omissions - very much as one would use the slip rule:- Hanks v Ace High Productions Ltd [1978] ICR 1155.

There are some three cases which might seem to fall outside these categories, and in which a number of those earlier cases were not considered namely: Nikitas v Solihull Metropolitan Borough Council [1986] ICR 291 and Jenkins v P & O European Ferries (Dover) Ltd [1991] ICR 652. These cases may need reconsideration in due course. The third case, Ladup Ltd v Barnes [1982] ICR 107 is really concerned with the new evidence rule and is special to its own facts.

Accepting as we do, the omissions of Mr Sedley on this point, we construe rule 26(1)(a)….."

- and I pause to mention that that was then the equivalent of our present Rule 33 -

"……..we construe rule 26(1)(a) of the Employment Appeal Tribunal Rules 1980 as covering the situation where some alteration is necessary to the form of the order made as a result of the judgment and rule 26(1)(c) as being of limited scope, intended to repair an error in jurisdiction or a defect in the process of the appeal, or the conduct or procedural unfairness - the absence of "due process" - the technical correctness of the decision. It is not to allow cases to be re-argued and re-heard. We would adopt the reasoning in Spring Grove; Cassella and Stannard; and the other cases referred to in those authorities."

13. We respectfully adopt the reasoning of the Employment Appeal Tribunal in that case. Dr Lynn argues that the Human Rights Act in some way supersedes Blockley, but we are bound to say that we fail to understand why it should. It has to be borne in mind that when matters come to the Employment Appeal Tribunal there has already been the basic hearing below, at the Tribunal level, and it is quite clear that a more robust approach can be taken in relation to appeals than is tenable at the very first hearing at first instance.
14. Dr Lynn has some sixteen paragraphs in his application for a review and, indeed, we have been handed further written submissions this morning. But in our view, none of those discloses any matter which "in the interests of justice" requires our attention under the limited ability that we have to review.
15. The accusation which is made that the Employment Appeal Tribunal was making fresh findings of fact flies in the face of the fact that all that is before the Employment Appeal Tribunal under Section 21 of the Employment Tribunals Act is points of law. It cannot make findings of fact and therefore did not. Mr Egan has dealt, in some detail, with specific arguments sought to be raised by Dr Lynn in his first written submissions, but there is, as it seems to us, a more basic approach, namely that if the Employment Tribunal held the wrong date for the dismissal, or failed (deliberately or not) to take into account certain evidence laid before it, or tested the reasonableness of Dr Lynn's dismissal by reference to facts as at the wrong date, or failed fully to understand how to apply the Equal Pay Act claim, or failed to draw any particular inferences despite irresistible evidence being led which supported such inferences, or mistook the wording of the relevant sections, or any such matters as that, well then, those would have been matters for appeal against the Employment Tribunal Decision to the Employment Appeal Tribunal, and, if the Employment Appeal Tribunal then ruled, on dismissing the appeal, that they had failed to identify any error of law in those areas, then Dr Lynn would have been free to complain to the Court of Appeal claiming that the Employment Appeal Tribunal had itself erred in law in not identifying errors of law on the Tribunal's part.
16. Such matters as that are not fit for review, at all events, unless very plain and obvious flaws can be seen almost at first blush, and that certainly is not the case here. Moreover, to the extent that Dr Lynn complains as to the manner of the hearing at the Employment Appeal Tribunal on 23 April 1999, first of all he appears to shrink from some forms of complaint as to the manner of the hearing. We have, though, read the reserved full judgment of 8 June 1999. In that Decision the Employment Appeal Tribunal (the judgment being given by Mr Justice Morison, then the President) candidly indicated that the Employment Appeal Tribunal was there dealing only expressly with Dr Lynn's main points. But that is not to say that the others were not in mind. One has in mind Lord Russell's well known dictum in Retarded Childrens Aid Society v Day that one cannot assume, merely from the fact that a point is not expressly mentioned, that it had not been borne in mind, and, of course, in the judgment of 8 June, the Employment Appeal Tribunal was expressly recognising that there were other points that had been made by Dr Lynn. It was not that they had not even noticed them. Moreover, if the main points failed, with the one exception relating to the Teachers Pension Scheme, it is implicit, as it seems to us, looking at the judgment of 8 June, that the lesser ones failed even more heavily. One cannot therefore say that the Employment Appeal Tribunal erred in law simply on the grounds that it failed expressly to mention this or that ground which Dr Lynn had referred to in his Notice of Appeal.
17. In the circumstances, even if we still have power to review the decision of 8 June, we decline to do so and if Dr Lynn's request encompasses this, we decline also to review the Decision of 23 June 1999. If Dr Lynn had wished to argue that the Employment Appeal Tribunal had erred in law on 8 June or 23 June, he should, in the circumstances, have appealed or sought to have appealed to the Court of Appeal.
18. We decline to review the Decisions we have mentioned and, accordingly, the hearing of the Notice of Appeal will be confined to the single subject which the Employment Appeal Tribunal permitted to go forward, namely, speaking broadly, "the Teacher's Pension Scheme point". That will be the only one that is open to Dr Lynn on his appeal.