Ship-Link (UK) Ltd v Burns [1992] UKEAT 183_92_2011

EAT
Ship-Link (UK) Ltd v Burns
[1992] UKEAT 183_92_2011 · 1992-11-20

LORD COULSFIELD: This is an appeal against a decision of Mr D E de Saxe sitting as a Chairman of an Industrial Tribunal on an application for directions in relation to an unfair dismissal claim brought by the present Respondent against the present Appellants. The application sought a stay of proceedings and the Chairman decided that that stay should be refused. The reasons given for his decision are brief. He states, after an introductory passage:

"Mr Palmer, who appeared today for the respondents, said that they did so because there were also proceedings in being in the Medway County Court, and some of the issues of those proceedings would be in common. He did not give any other reasons for applying for a stay. Mr Burns objected to a stay."
As we understand the position, in the light of the submissions made to us today, the pleadings in the County Court action, as they then stood, had been submitted to the Industrial Tribunal and it was understood, from questions put to Mr Palmer by the Chairman, that the pleadings had been seen by the Chairman; but the Chairman's attention was not drawn to the pleadings in any detail and there is no analysis of any overlap between the issues in the County Court action and the issues in the unfair dismissal application. The Chairman, went on to say:
"It seems to the Chairman that Parliament has given the Industrial Tribunals exclusive jurisdiction to consider whether or not there has been unfair dismissal, which is Mr Burns' complaint in these proceedings. Mr Palmer agreed that the proceedings in the Medway County Court canvassed many other issues. The Chairman took the view that no adequate reason had been shown for a stay of proceedings, and he refuses such a stay."
In this appeal we are asked to review the exercise of the Chairman of a discretion which is committed to him under the procedural Rules of the Industrial Tribunals. The nature of that discretion has been considered in a number of authorities, to some of which we were referred, but it is clear that the only general guidance is found in a remark by Stephenson LJ in Carter v. Credit Change Ltd [1979] ICR 908 (at p.919); he said:
"I would lay down no principle except the principle (if it can be called a principle) that the Industrial Tribunal Chairman should attempt to do justice as best he or she can in each individual case."
There have been cases in which serious complications and difficulties have been foreseeable because of an overlap between other proceedings and proceedings before an Industrial Tribunal and in which it has been held the Chairman's discretion has been properly exercised by granting a stay of the industrial tribunal proceedings. All such cases to which we were referred, however, were in our view, cases very real and very substantial complications and difficulties were to be anticipated. It is clear that the discretion of the Chairman will only be interfered with where he has fallen into an error in law, or where, the difficulties really foreseeable, in any overlap between industrial proceedings and other proceedings, are such that a decision one way or the other can properly be regarded as perverse.In the present case the only error in law suggested was that the Chairman had erred in taking account of the fact that industrial tribunals have exclusive jurisdiction to consider whether or not there has been an unfair dismissal. In our view there was no error of law in what the Chairman said. The Reasons are brief but it is clear that the Chairman has taken account of the submissions that were made to him. He was aware that there were issues in common and others which were not in common between the proceedings in the County Court and those in the Industrial Tribunal, so far as such matters were drawn to his attention. He has, quite properly, taken into account the consideration that, irrespective of any question of remedy, the question whether or not a dismissal is unfair can only be settled by an industrial tribunal. There can, indeed, be circumstances which make it appropriate that there should be a finding of unfair dismissal even if the Applicant is unlikely to obtain an order for re-instatement or a financial award.As regards the exercise of discretion, it is important to bear in mind that the Chairman had before him only a brief reference to the pleadings, and that he was not given the benefit of a careful analysis, such as was made in the submissions to us. It was drawn to our attention, firstly, that there are criminal proceedings in existence in which the present Respondent faces trial on charges of false accounting and obtaining by deception, arising out of an allegation that he signed a cheque payable to himself without authority and misdescribed it in the Company's books. There is nothing to indicate that these criminal proceedings were drawn to the attention of the Chairman. In any case we are not inclined to regard them, even as matters stand today, as relevant, since the criminal proceedings are expected to take place early in December and there is no prospect that the Industrial Tribunal proceedings could be heard before that date. With regard to the overlap between the issues in the County Court action and the Industrial Tribunal proceedings the issues drawn to our attention were, first whether the Respondent was constructively dismissed; secondly, whether a compromise had been reached between the Respondent and the Appellants, as is alleged by the Respondent in these proceedings and in his defence in the County Court proceedings; and thirdly, the issue relating to the cheque to which we have already referred. The circumstances drawn to our attention do not begin to approach, in complexity, the sort of circumstances which in cases such as Bowater plc v. Charlwood [1991] ICR 798 or First Castle Electronics v. West [1989] ICR 72 have led Tribunals or Courts to consider that it was appropriate for a discretion to be exercised to stay the proceedings. In our view, therefore, there is no basis upon which it can be suggested that the exercise of the Chairman's discretion, even taking account of the matters which were drawn to our attention and were not specifically before him could be said to be as incorrect; and a fortiori; there is no ground for challenging the exercise of his discretion on the material before him.In these circumstances, therefore, we shall refuse this appeal.