United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS I OMAMBALA (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors 4th Floor General Buildings 18-20 Grey Street Newcastle Upon Tyne NE1 6AE
For the Respondent	MISS M BATTEN (Solicitor) Instructed by: Messrs Finn Gledhill Solicitors 1 Harrison Road Halifax West Yorkshire HX1 2AG


 


HIS HONOUR JUDGE J McMULLEN QC

1. On 13 March 2002 this appeal came before two of us (Mrs Prosser and myself) sitting with Mrs Chapman, for a Preliminary Hearing. The Respondent employer appeals but we will use the term Applicant and Respondent as below.
2. The Respondent had the advantage of being represented by Ms Omambala, as today – at that time under the aegis of the ELAAS Scheme – and with her assistance we identified three points of law which were reasonably arguable and sent the matter to a full hearing. In due course a Respondent's Answer was served by the Applicants and a Reply thereto, drafted by Ms Omambala and signed by her client.
3. The background to what occurred at the Employment Tribunal, which we described in our first judgment, is referred to both in the Respondent's Answer before the EAT and before the Preliminary Hearing in a letter dated 12 March 2002, directed to the EAT by the Applicants' solicitors.
4. Mrs Prosser and I never had this letter and Ms Omambala cannot recall it being in her possession on the day. We think this is entirely sensible since the contents of the letter, as we have seen replayed into the Respondent's Answer, is an important matter. The matter relates to what was done at the Employment Tribunal and, for reasons which will become apparent, regulate what we have decided to do.
5. The appeal is from a decision of an Employment Tribunal sitting at Leeds, Mr J A Pickard, sent to parties on 24 August 2001. The Applicants succeeded in complaints of unfair dismissal and the non-provision of written reasons. Since then the second Applicant, Mr Chrispin, has withdrawn his appeal.
6. Extended Reasons were provided and the Tribunal set out its calculations on compensation. The Tribunal was asked to review its decision on a ground which was not further pursued. A second application was rejected by the Chairman, exercising his jurisdiction that the case had no reasonable prospect, on 19 November 2001.
7. The circumstances giving rise to the instant appeal are that the Applicant (as we will now call her) alone was engaged by the Respondent, which sells electrical goods, from 1 December 1996, initially as a Sales Representative then a Telesales Manager and a member of the Corporate Sales team.
8. On 6 November 2000 the leading lights in the Respondent, including Mr Clavering, told the Applicant that her job was being made redundant and on 7 November 2000 made it clear that the prospect of alternative employment was not likely. The Applicant left and, at the beginning of April 2001, obtained alternative work.
9. The contemporaneous assertions by Mr Clavering, that the Applicant was redundant, were held in terms to be untrue, that the dismissal was not on the grounds of redundancy at all and that the Applicant had been unfairly dismissed. The Tribunal then went on to award compensation for unfair dismissal and to award two weeks' pay in respect of a failure by the Respondent to provide written reasons.
10. In an amended Notice of Appeal drafted by Ms Omambala following our Preliminary Hearing, points were taken relating to the calculation of the award indicating that the Respondent had been given no credit for a sum of £920 by way of redundancy pay and a sum of £1,693.20 in respect of notice pay. The aggregate of those sums therefore is what is at stake in this appeal.
11. On a cross-appeal the Applicant contends that the Tribunal, with a schedule of pension loss in front of it, failed to make any mention of that loss, which amounts to £1,700 odd.
12. This morning full argument was addressed by Ms Omambala in relation to the relevant authorities, which are Addison v Babcock F.A.T.A. Ltd [1987] ICR 805 CA, Boorman v Allmakes Ltd [1995] ICR 842 and Rushton v Harcros Timber & Building Supplies Ltd [1993] ICR 230 EAT. It is not necessary for us to decide those issues since we did not ask Miss Batten appearing for the Applicant today to address arguments because it appeared to us that a more important issue had to be taken first.
13. The decision of the Tribunal includes the following:

(e) "The complaints by both Applicants relating to unpaid wages/unlawful deduction, redundancy payment, wrongful dismissal and holiday pay are dismissed on withdrawal."

14. The Notice of Appeal at the Employment Tribunal contains a number of admissions to claims put forward by the Applicant. A claim for wrongful dismissal based on lack of notice is denied but other, what have been described as "smaller claims", are admitted. It seems odd to us that at the hearing claims which had been admitted by the Respondent were the subject of dismissal on withdrawal by the Applicant.
15. The explanation comes in the letter to the EAT, which we have not seen until today, and in the Respondent's Answer to these proceedings. It is that an agreement was reached by Counsel for the Applicant and Mr Clavering for the Respondent, to the effect that the cheque which had been paid to the Applicant in the sum of £4,466.61 would be applied to discharging the admitted claims described above. In short they were for the backpay up to the date of leaving and shortfalls in the salary. Thereafter the Tribunal proceeded to have a clear run at the two substantive issues: unfair dismissal and the failure to provide written reasons.
16. We have been told by Miss Batten that by lunchtime on the day of the hearing the Tribunal had indicated its view to the parties about the substantive issues and had invited the parties to consider the minor issues. Thus it is that we can understand the decision of the Tribunal to dismiss the claims of the minor matters on withdrawal.
17. We have been told, and the Applicant has asserted in pleadings, that there was an agreement that no further account would be taken of the payment made in the cheque which we have described above. That, obviously, is an important matter and is fully ventilated in the Respondent's Answer to the Notice of Appeal.
18. It is not addressed in terms in the Respondent's reply to the cross-appeal. The cross-appeal raises the pension loss. Issue is joined on that matter by the reply signed by Mr Clavering. He says, for example, this:

(6) "The [Applicant's] claims in respect of pension loss, including pension contributions, were dismissed upon withdrawal by the [Applicants]. In these circumstances the [Respondents] submit that the [Applicant] once again seek to effect double recovery of pension contributions."

19. By that plea Mr Clavering is clearly alert to what is being said by the Applicant relating to an agreement. He had an opportunity to join issue with the Applicant about the nature of this agreement but did not take it. Nor, in Ms Omambala's argument to us today, is this point dealt with.
20. We consider that in those circumstances Miss Batten is right that there was such an agreement. She has, as she thought right, checked the matter with Counsel, who represented the Applicant, who has indicated that although his memory is not clear on the matter it is clear that the issue really before the Tribunal in the afternoon was the compensation for unfair dismissal and the failure to provide written reasons. In other words, a division occurred between those matters leading to losses prior to the date of dismissal, the subject of the agreement it is said, and those matters of forward losses consequent upon the unfair dismissal which were the subject of calculations by the Tribunal following the submission of the schedule of loss.
21. Had Mrs Prosser and I known of this matter before we gave our judgment on the Preliminary Hearing our position would have been different. We do not criticise Ms Omambala for not raising it because had she been aware of this matter she would have put it before us.
22. Our file has no record of the letter arriving at the EAT. Nevertheless we are assisted in our approach to this matter by the judgment of the Court of Appeal in Jones v The Governing Body of Burdett Coutts School [1998] IRLR 521, where Robert Walker LJ, giving the judgment of the court, indicated as follows (see paragraph 20):

20 "… although the Employment Appeal Tribunal has a discretion to allow a new point of law to be raised (or a conceded point to be reopened) the discretion should be exercised only in exceptional circumstances, especially if the result would be to open up fresh issues of fact which (because the point was not in issue) were not sufficiently investigated before the industrial tribunal."

And at paragraph 30 he said this, dealing with the allowing by the EAT of an Appellant to open up a new point:

30 "It is clear that the inexperience of a party's advocate is not a good reason. If a new point of law goes to jurisdiction, that may be a good reason (Barber [1991] IRLR 236) but I cannot accept [Counsel's] submission that any issue of jurisdiction arose in this case. Nor can the importance of the point raised be a sufficient reason; in one sense, the importance of the point makes it more difficult, nor less, to justify reopening a concession."

23. While the word 'concession' may not be strictly apt to describe what has occurred, it does appear to us that the approach of the Court of Appeal enjoins us against opening matters which will require further investigation by the Employment Tribunal if the appeal is allowed. That would be most unfortunate in a case which is already as old as this one is and where an opportunity has been given to the Respondent to deal in terms with the assertion of what we have described as the 'agreement' and its contents.
24. We think indeed that is what decided the Employment Tribunal Chairman when he rejected the second application for review made by Mr Clavering on behalf of the Respondent when he said this:

2 "The matters were never raised when the Tribunal announced its calculations giving details of the various parts of the awards.

3 These matters were never raised when the first application for review was made.

4 The interests of justice do not require a review."

25. So, without passing any view about the correctness of Ms Omambala's argument on the principles, the appeal is dismissed and the cross-appeal is not pursued.
26. As to the application by Miss Batten for costs, the conduct which we identify is the failure by the Respondent to address the agreement point made clearly in correspondence and in the Answer provided on her behalf, either in the documents before the EAT, or in the Skeleton Argument, or oral argument today. Such was improper. The substantive point obviously was recognised as having reasonable prospects.
27. We have been told, without objection, that Mr Chrispin's case was settled with an award of costs to him of £750. That was settled before today's hearing. That represented half of the costs to date incurred by Miss Batten's firm in the conduct of the appeal.
28. We do not consider it right to award all of the costs of the appeal attributable to her, since the costs for the Applicant were £750 at the time of the settlement with Mr Chrispin. There have been additional costs incurred by Miss Batten in coming down today to attend and at her hourly rate of £135 one can quickly see how those figures would mount up. We will award £1,000 plus VAT (£1,175) to be paid by the Respondent to the Applicant.