Comber v Harmony Inns [1992] UKEAT 420_92_2406

EAT

Comber v Harmony Inns

[1992] UKEAT 420_92_2406 · 1992-06-24

MR JUSTICE WOOD (PRESIDENT): This interlocutory appeal, raises a new and difficult point under the Industrial Tribunal (England and Wales) Regulations 1965 as amended. A Mr Comber was the Applicant alleging unfair dismissal by his employers, Harmony Leisure Group plc t/a Harmony Inns.

The Respondent did not enter a Notice of Appearance. They were notified of a date of hearing and a reminder was sent. The hearing took place on the 2nd March 1992 before an Industrial Tribunal chaired by Mr Roose. One of the two lay Members failed to arrive so the position was that the Chairman and one Member were present to hear the case. They asked the Applicant's Counsel whether she objected to the matter proceeding before the Tribunal thus constituted and she raised no objection. As there had been no appearance, the Tribunal proceeded to hear the matter, they found that Mr Comber was unfairly dismissed and they awarded compensation of £4,596.

That decision was entered on the Register on the 17th March 1992 and notice of it was sent to the Applicant's solicitors and also to the Respondents.

The Respondents, through its Managing Director approached the Industrial Tribunal saying, that they were unaware of the hearing and that they wished to appeal. They must have written to the Industrial Tribunal but we do not have that letter. It is however clear from the other documentation that that occurred, and indeed the intention to appeal has been verified from our own general office here at the Employment Appeal Tribunal, because we have discovered a letter from the Respondents dated 27th March asking for the relevant documentation for an appeal, that is signed by Mr John Lever who appears before us today for the Respondents.

The Industrial Tribunal having received that communication from the Respondents and having had a further communication from the Applicant's solicitors wrote to both parties in a letter of the 7th May saying:-

"You will be aware that the Tribunal which heard your client's application was a member short as one failed to arrive at the hearing. The decision is now subject to challenge from the respondent. [This is a letter to the Applicant's solicitor]

Regulation 4 of the Industrial Tribunals (England and Wales) Amendment Regulations 1967 provides: `A tribunal shall consist of a Chairman and two other members but in the absence of any one member of a tribunal other than the Chairman an appeal may with the consent of the parties be heard in the absence of such member and in that event the tribunal shall be deemed to be properly constituted.'

In this case the respondent not being present did not give his consent and it follows that the decision must be a nullity. The only question that needs addressing at this stage is what can be done about it. The decision lies on the Register and cannot, of course, be removed. There cannot be a Review because there can only be a Review under circumstances that do not apply here.

In the circumstances the Chairman is of the view that probably the only course would be to issue a Certificate of Correction under which the Decision as such would be stated to be of nil effect on the basis that there was lack of jurisdiction.

I now enclose the Certificate and propose to relist the case for a new hearing in the month of June 1992."

and then forms for availability were enclosed.

There was a Certificate of Correction under sub-rule (9) of the Industrial Tribunal's Rules of Procedure (Regulations) 1985 and it states:

"That the decision in the above-named case, entered in the Register on 17/3/92 be deemed null and void on the basis that there was lack of jurisdiction."

The hearing is to be tomorrow in front of an industrial tribunal and the Applicant, through his Counsel, Mr Bradley has brought forward this appeal to us, asking for three matters to be dealt with. First of all, a direction that tomorrow's hearing should be adjourned. Secondly, that a declaration that the Certificate of Correction was improperly utilised under sub-rule (9). Thirdly, that the decision is a valid decision, that is the decision of 2nd March 1992.

The situation is clearly unsatisfactory. By the Industrial Tribunal Rules of 1985 after a Notice of Application has been filed the respondent is responsible for entering an appearance under Rule 3 and that must be done within 14 days. If there is no appearance then there is no right to take part in the proceedings. Rule 3(2) reading:

"A respondent who has not entered an appearance shall not be entitled to take any part in the proceedings except - (i)to apply under Rule 13(1) for an extension of the time appointed by this Rule for entering an appearance;"

and sub-rule (3) makes provision, that if a Notice of Appearance is presented after the time limit then it is deemed to apply for an extension and provisions are made for notice and argument on that issue.

The position here, therefore, was this that there was no Notice of Appearance, there was therefore no right to appear and indeed no Notice of Appearance out of time had been presented. So therefore there was no automatic application for extension of time. It seems now that the Respondents, if they take proper advice, will be applying for an extension of time and applying to set aside the decision. But that of course, has not taken place because as we have already explained Mr Lever has taken no further steps to appeal or to make application in the light of the information that he received that a Certificate of Correction was being issued.

A Certificate of Correction is made under sub-rule (9) of Rule 9 and that reads:

"Clerical mistakes in any document referred to in paragraphs (2), (4) and (5) of this Rule, or errors arising in such a document from an accidental slip or omission, may at any time be corrected by the chairman by certificate under his hand."

It seems to us that that Rule does not apply to a situation where the problem is whether or not a tribunal has been properly constituted and therefore whether there is jurisdiction to make a decision. Moreover, as was pointed out by Mr Bradley, there was no opportunity here to make representations and he referred us to "The Times" Newspaper Ltd v. Fit

[1981] ICR 637

It follows therefore that we must decide whether or not the decision was a valid decision. If it was not a valid decision then the hearing taking place tomorrow will start afresh and no doubt there will be an application by the Respondents to be allowed to take part, despite the fact that there is no Notice of Appearance and that they are out of time. Likewise, if it is a valid decision, nevertheless, tomorrow the Respondents may apply in the same way to be allowed to enter an appearance and for the matter to be reheard. But, the problem remains, is it a valid decision?

The constitution of an industrial tribunal as indicated in that letter of the 7th May depends upon a proper construction of Regulation 5(1) of the 1965 Regulations together with a proper understanding of the procedure for appearance under Rule 3 of the 1985 Industrial Tribunals (Rules of Procedure) Regulations. Under the rules, Rule 3, it is quite clear that if there is no appearance then there is no right to take part in the proceedings except for those few matters, the relevant one of which is to apply for extension of time for entering an appearance, but apart from those limited occasions there is no right to take part in the proceedings. In fact, to be more exact, a Respondent who has not entered an appearance shall not be entitled to take any part in a proceedings.

Turning to Regulation 5(1) the wording reads as follows subject to the provisions of paragraph 1(a), which is not relevant:

"A tribunal shall consist of a Chairman and two other members but, in the absence of any one member of a tribunal other than the Chairman, an appeal may, with the consent of the parties, be heard in the absence of such member, and in that event the Tribunal shall be deemed to be properly constituted. "

It is interesting to note that the word "appeal" is present in that Regulation, although in Schedule 9 Paragraph 1(2)(a) of the 1978 Act the phrase "application" has been introduced. Nevertheless, the wording in Regulation 5 has not been altered. This clearly was not an appeal but, as we understand the situation, the importance is the constitution of the industrial tribunal and we therefore take that word "appeal" which was made under the original Levy Board procedures to include applications and procedures before the industrial tribunal. Therefore, was this Tribunal properly constituted, in that it consisted of a one member and the Chairman, with the consent of the parties to be heard. "Parties" includes the singular, the Respondent was not a party at the time because it had no right to take any part in those proceedings. Clearly, as a matter of convenience, and as a matter of practice it seems to us desirable that in the circumstances which arose in this case, it would be preferable for a hearing to be adjourned for a normally constituted tribunal, but on a strict understanding of the Regulation it seems to us that if the Respondent is not entitled to take any part in the proceedings then he or it should not be considered to be a party at the hearing at which the consent is given for the constitution of the tribunal to be a Chairman and one lay member.

It follows therefore, that the decision of the 2nd March 1992, registered on the 17th March is, in our judgment, a valid decision, but of course, that does not prevent the Tribunal, which we hope will be under the same Chairman, considering any application before it tomorrow, or by the Respondents, to explain the situation and to ask that they be allowed to enter an appearance even though well out of time.

We shall try to ensure that a copy of this Judgment is available for the learned Chairman, if we can manage it, but in the circumstances therefore, the Order of this Court is that the Certificate of Correction be set aside, that the decision of the 2nd March 1992 is a valid decision, or if you prefer it, that the Tribunal was properly constituted, but we do not make any Order about the hearing tomorrow when the learned Chairman and the parties will be able to consider how the matter should proceed hereafter. We repeat, we hope, that normally speaking on these occasions the hearing will be adjourned so that the Tribunal can be constituted in a normal way.