United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A BIRCH In Person


 


MR COMMISSIONER HOWELL QC

1. We have before us for Preliminary Hearing an appeal by Mr Andrew Birch against the decision of the London South Employment Tribunal, sitting on 30 August 2001 to determine as a preliminary issue whether the Tribunal had jurisdiction to proceed to a full hearing of his complaints of unfair dismissal against his former employers NNR Aircargo Service (UK) Ltd, with whom he had been employed as an import manager from 15 April 1998 to 26 September 2000.
2. The reason that that came before the Tribunal for determination on 30 August 2001 as a separate issue was that, in the understanding of the Respondents and also of ACAS whose auspices discussions between the parties had been conducted, a final and binding settlement of Mr Birch's claim had been reached some months earlier in March or April 2001. That was as a result of exchanges of documents and discussions that had taken place between the Respondents' solicitors Baker & McKenzie and a Mr Joe Sykes, who was then acting as representative on behalf of Mr Birch either personally or as the director of a firm called Employment Cases Direct. That firm was on the record as acting as Mr Birch's representative from the outset of the proceedings then it had lodged the Originating Application on his behalf as is clear from the Originating Application itself at pages 13 – 21 of the Appeal file before us.
3. The Tribunal found as a fact that Mr Sykes had concluded a binding agreement with Baker & McKenzie for the disposal of the proceedings, that he had had both ostensible and actual authority on behalf of Mr Birch to conclude such an agreement and that accordingly the proceedings which had been the subject of a dismissal on notification from the ACAS conciliation officer concerned of the settlement on 29 March 2001, were therefore not able to be entertained by the Tribunal. The result was that the application before the Tribunal on 30 August 2001 by Mr Birch for the whole matter to be reopened was dismissed, for reasons unanimously arrived at by the Tribunal and recorded in the statement of Extended Reasons sent to the parties on 21 September 2001 at pages 4 – 8 inclusive of the Appeal file.
4. Against that decision Mr Birch has sought to appeal on grounds originally set out in the Notice of Appeal lodged on his behalf by a firm of solicitors Philip Glah & Co but pursued subsequently through a different firm of solicitors a notice of change having been lodged with the Appeal Tribunal on 8 January 2002 when a firm called Nigel Adams & Co came on to the record as solicitors for Mr Birch in place of his previous ones.
5. Mr Birch appeared before us today in person notwithstanding that he has both solicitors, and as he told us Mr Sykes who is now qualified as a member of the Bar still acting for him in these proceedings. In the circumstances however we did not think it necessary to enquire further about why there was no attendance before us of the lawyers on the record as acting for him, as would have been normally to be expected as a matter of course where lawyers are acting for an individual.
6. The points which Mr Birch has very clearly and fairly put before us are first whether there was any concluded agreement at all such as to justify the Tribunal reaching the findings they did. Mr Birch's contention is that there was no such agreement, because of the course of events disclosed by the documentary and other evidence before the Tribunal when Mr Sykes was acting for him. Secondly, and in any event Mr Birch seeks to pursue an appeal against the final part of the Tribunal's decision where they ordered that a total sum of £7524 excluding VAT should be paid by him to the Respondents, for the costs incurred by their solicitors from the moment when it became apparent that Mr Birch was disputing the agreement the Respondent understood to have been agreed on his part, and the matter was sought to be restored to the Tribunal for determination.
7. Dealing with the second question first we have been satisfied having looked at the Schedule of Costs submitted to the Tribunal that there is an arguable point here as to whether the Tribunal erred in awarding an excessive amount for the costs that were alleged to have been incurred from 12 July 2001 onwards by the Respondent's solicitors in dealing simply with the question of whether there had been an agreement previously concluded and whether the Tribunal should re open the case for a full merits hearing.
8. It appears from the document before us that the Tribunal awarded the full amount of the costs claimed by the Respondent's solicitors without any deduction at all; and that despite the Tribunal's comment in paragraph 20 of their Extended Reasons that the breakdown showed the representatives to have used trainees rather than senior associates or partners wherever possible and had endeavoured to keep costs to the minimum, when one looks at the actual amount claimed on that schedule there is in our judgment an arguable question whether the actual amounts shown on that schedule and the way in which they are claimed to have been incurred bears out the comment the Tribunal made. In particular we notice that a total of 4.15 hours at £350 an hour have been claimed for a senior associate in drafting a letter to the Tribunal relating to the application, resulting a total amount claimed under that head of something over £1800 for work done on 12 and 13 July 2001, and on the latter day two hours work at £350 has been made to come to £1050, unnoticed by the Tribunal. The amount actually shown to have been claimed for the time of trainees and more junior staff is very much less than the amounts of time and work claimed to have been done by a senior associate, and charged at a very substantial rate..
9. We therefore reach the conclusion that there is an arguable point whether the Tribunal erred in awarding an excessive amount of costs for the period from 12 July 2001, and whether their award might in the circumstances have erred in being intended to have some punitive element, in the circumstances referred to in paragraph 19 of their Extended Reasons. Accordingly we will direct that issue should go forward to the Appeal Tribunal for a full hearing inter partes.
10. As regards the other grounds of the Appeal on the major question of whether there was an agreement at all to disposing of the original proceedings, we have not been satisfied that any arguable case has been shown. Mr Birch in particular made it clear in his argument to us this morning that Mr Sykes did have full authority to conduct the proceedings and to conclude an agreement settling them on his behalf and that that authority was never withdrawn by him, Mr Birch. The evidence before the Tribunal in our judgment justified the conclusion they reached as specifically recorded in paragraph 15 of their Extended Reasons there was a concluded agreement through the auspices of ACAS on 28 March or shortly thereafter. In particular we have been satisfied about that from the fact of a notification from ACAS having been sent to the Tribunal on or about 28 March resulting in the order of the Tribunal dated 29 March 2001. This recorded that the conciliation officer having taken action under the provision of section 18 of the Employment Tribunals Act and having notified the Tribunal that terms of settlement had been reached, the Tribunal ordered that all further proceedings in the application be stayed. That parallels the Tribunal's finding in paragraph 15 of the Extended Reasons that there had been an agreement reached, in terms which in our judgment embody sufficient findings of fact for this Tribunal to be satisfied of its correctness, that there was an agreement reached on 28 March when Mr Sykes for the Applicant accepted the Respondent's terms of settlement to settle the Applicant's claim against the Respondent. Those terms were clearly set out in a proposed "COT3" wording, a copy of which is before us. There is no doubt or dispute that Mr Sykes for the Applicant approved the wording and thus the terms of the agreement. That was when the agreement was concluded and from there on the Tribunal had no jurisdiction to hear the claim.
11. In addition if there was any doubt about that we have been shown in the supplemental bundle of documents helpfully provided by Mr Birch a copy of a faxed document setting out the actual term of settlement reached, at page 24, which records that the undersigned have agreed the terms of settlement as relied on by the Respondents and found by the Tribunal. That document is initialled by Mr Sykes for the Applicant on 3 April 2001 and by Baker & McKenzie for the Respondents on 26 April 2001.
12. Mr Birch's point was that because the first paragraph of that document contained the provision that the Respondents would pay the sum of £3500 within seven days of receipt by them of a copy of form COT3 signed and dated by Mr Birch personally, the legal effect of that was that there was no concluded agreement at all until he personally signed a copy of the document. That in the event he never did, because he objected to one of the clauses which had been previously agreed by Mr Sykes on his behalf.
13. In our judgment that contention does not disclose an arguable issue of law for the Appeal Tribunal because it confuses the two questions of when the actual agreement on the terms to be carried out by the parties was reached between their representatives having authority to conclude such an agreement, and the procedures for actually, carrying those terms into effect under the agreement; most significantly by payment of the agreed amount against a satisfactory signature.
14. In any event, as recorded in the Tribunal's Extended Reasons, in due course after Mr Sykes had urged on the Respondents that he did indeed have authority and that his signature was sufficient the Respondents' representatives did accept that, waived any previous insistence on a personal signature from the Applicant, and sent the signed COT3 together with the cheque for £3500 on 26 April, as the Tribunal found as a fact in paragraph 12 of their Extended Reasons.
15. Accordingly, we have not been satisfied having considered everything Mr Birch said that there is an arguable ground in law for saying that the substantive decision of the Tribunal on the issue of the agreement was in any way incorrect. We accordingly dismiss the appeal except in so far as concerns the issue on the amount of costs, which as we said we will direct should go forward for a full hearing. That issue we direct to be set down in listing Category C, estimated length 2 hours, no chairman's notes required, skeleton arguments to be exchanged and lodged not later than 14 days before the hearing.