Sykes v BMP DDB Needham Worldwide Ltd [1992] UKEAT 382_90_2105

EAT
Sykes v BMP DDB Needham Worldwide Ltd
[1992] UKEAT 382_90_2105 · 1992-05-21

JUDGE HAGUE:

This is an appeal brought by the employee Mr Sykes against the decision of an Industrial Tribunal sitting at Leeds in favour of the respondent employers BMP DDB Needham Worldwide Ltd.The background to the matter very shortly is that Mr Sykes had to use, or it was said that he had to use, a car in doing his work. He was an accounts manager for the employers covering some 100 Volkswagen dealers over a wide area. Unhappily he obtained some convictions for speeding offences and under the "totting-up" procedure he was banned from driving for ten months. The employers decided that in the circumstances it was not possible for him to carry out his duties. The Industrial Tribunal, in paragraph 6 of their Decision, said:
"The decision of the employer was that, although it was not specified in Mr Sykes' contract, he was no longer capable of doing the job he was engaged to do because in the employer's view he needed a current driving licence. It was not possible for him to be able to properly carry out his functions for any length of time, certainly for 10 months by using public transport. . . . . . . . So the tribunal is satisfied that the respondent dismissed the applicant for a reason related to capability."
The Tribunal then went on to decide whether the employer acted reasonably or unreasonably, addressing their minds correctly to the question posed by Section 57(3) of the Employment Protection (Consolidation) Act 1978. The Tribunal said in paragraph 7:
"the employer was entitled to take the view, in this case, that the loss of the licence and the length of the ban meant that there was no alternative way of Mr Sykes performing his functions. That was a decision for the employer to make."
With some hesitation they decided that this view fell within the band of reasonable responses to what had happened. They obviously felt doubt about it, because they say:
"It may be that it falls towards the outer limit but nevertheless it is within that band."
So they dismissed Mr Sykes' claim.That Decision was sent to the parties on the 15th June 1990. Within ten days Mr Sykes had written, and the Tribunal had received, a letter from him which starts as following

"Dear Sir

I wish to appeal against the above decision on the point of Section 13 subsection (a) NOTES ON TRIBUNAL DECISIONS.The decision was wrongly made as a result of an error on the part of the tribunal staff."There then follow various points which Mr Sykes has put forward as being errors, but we consider, and Mr Sykes agreed, that they are all matters where he says that the Tribunal got the facts wrong, or at any rate they raise only questions of fact. We will come back to the response to that letter in a moment, but we now go to the law.A person who is dissatisfied with a decision of an Industrial Tribunal has two courses open to him. One is to appeal to this Tribunal, and that is dealt with by Section 136(1) Employment Protection (Consolidation) Act 1978, which reads:
"An Appeal shall lie to the Appeal Tribunal on a question of law arising from any decision of, or arising in any proceedings before, an industrial tribunal. . . . ."
The important words there are "on a question of law" , and they mean that there can be no appeal on a question of fact. That is a matter which has been emphasised on a number of occasions by decisions of the Court of Appeal on appeal from this Tribunal. The Court of Appeal has firmly said that questions of fact are for the Industrial Tribunal alone and the Appeal Tribunal must not deal with them under the guise of being questions of law.That is the first course a dissatisfied applicant or respondent can take. The other course is to ask for a review of the Tribunal's decision. That is provided for by Rule 10 of Schedule 1 of the Industrial Tribunals (Rules of Procedure) Regulations 1985, Rule 10(1) says:
"A tribunal shall have power to review and to revoke or vary by certificate under the chairman's hand any decision on the grounds that - (a)the decision was wrongly made as a result of an error on the part of the tribunal staff;

. . . . . . . . . ."

I need not go further, but there are four other grounds set out.I continue with Rule 10(2):
"An application for the purposes of paragraph (1) of this Rule may be made at the hearing. If the application is not made at the hearing, such application shall be made to the Secretary of the Tribunals at any time from the date of the hearing until 14 days after the date on which the decision was sent to the parties and must be in writing stating the grounds in full."
On the face of it, therefore, Mr Sykes would be out of time for now applying for a review. But under Rule 13(1) there is specific provision for a Tribunal to extend that time. Clearly if Mr Sykes had not done anything in the meantime he would now have grave difficulty in getting an extension of time. But in this case he can say that he has written the letter I mentioned and applied to this Appeal Tribunal. Whether or not that would be sufficient to induce the Tribunal to give him leave to apply out of time is not a matter for us and we say nothing about it.What we have outlined as to the courses open is summarised on page 13 of the booklet headed "Industrial Tribunals Procedure". Under the heading "Reviews" it sets out what is contained in Rule 10 of Schedule 1 of the 1985 Regulations, and under the heading of "Appeals" it says specifically:
"You have the right to appeal against a decision of an industrial tribunal only on a point of law."
Unfortunately, when the Regional Office of Industrial Tribunals received Mr Syke's letter, they replied extremely promptly but said in the first paragraph:
"Thank you for your letter received in this office on the 25th June 1990 requesting an appeal against the Tribunal decision.

Appeals should be made direct to the Employment Appeal Tribunal."

Literally, that was correct, for Mr Sykes did ask to appeal against the Decision. But the very next sentence of his letter does say:
"the decision was wrongly made as a result of an error on the part of the Tribunal staff"
It is a pity, to put it no higher, that the person who wrote the letter in reply did not take on board the fact that, as is really quite plain from that sentence and from the rest of the letter which sets out matters of fact, that what Mr Sykes was really doing was wanting to ask for a review of the Decision and not to appeal on a question of law. But that is what happened, and so Mr Sykes has found himself here. After hearing from Mr Sykes and discussing the matter with him, he has realised that he is in the wrong Tribunal and that we can do nothing. Clearly, none of the complaints and matters set forth in his letter and the matters on which he has addressed us raise any point of law.For those reasons this Appeal must be dismissed.