Ferodo Caernarfon Ltd v Owen [1992] UKEAT 589_92_2710

EAT

Ferodo Caernarfon Ltd v Owen

[1992] UKEAT 589_92_2710 · 1992-10-27

MR JUSTICE WOOD (PRESIDENT): This is an Interlocutory Appeal by Ferodo Caernarfon Limited from a refusal by a Chairman of Industrial Tribunals to Order a Pre-hearing Assessment. The decision, whether or not to grant one, can be made by a Chairman alone, as we decided in the case of Ferodo Limited & Bradbury

[1990] ICR 209

, but of course, it must be remembered that if there had been a Pre-hearing Assessment there would have been the necessity to convene a full tribunal. Whether or not, bearing in mind the purposes of a Pre-hearing Assessment that should be considered a necessity for the future, is a matter for others to consider, but it may very well be that the issue under Rule 6 could just as well be decided by a Chairman alone and that would tend to speed up the procedure and also possibly to save costs.

Under Rule 6 of the Industrial Tribunal Rules the following appears in sub-rule (1):

"A tribunal may at any time before the hearing . . . . on the application of a party to the proceedings made by notice to the Secretary of the Tribunals or of its own motion) consider, by way of a pre-hearing assessment, the contents of the originating application and entry of appearance, any representations in writing which have been submitted and any oral argument advanced by or on behalf of a party."

Pausing there, they can consider the documentations which sometimes are called "the pleadings". submissions, oral argument on behalf of the party.

"(2) If upon a pre-hearing assessment, the tribunal considers that the originating application or the contentions or any particular contention of a party appear or, as the case may be, appears to have no reasonable prospect of success,"

then, the tribunal may indicate that that is its opinion and give what is called, a costs warning. The hearing of the Originating Application would then be heard by a different tribunal who would not know the costs warning. But in the event of the applicant failing then there is that additional factor which the second tribunal can bear in mind when deciding whether or not to award costs.

A number of things appear from those two sub-rules, first of all this a discretionary matter, a wide discretion in the learned Chairman, of course it must be a discretion that must be exercised judicially. Secondly, that it is not an end of the matter it merely concludes with a costs warning. In exercising his discretion a learned Chairman may have regard to a wide number of matters, but the issue is whether there is an appearance that the Originating Application has no reasonable prospect of success.

This case started with an Originating Application which was dated the 18th May 1992. It alleges simply, "unfair dismissal". That as anyone, familiar with this jurisdiction, knows full well really tells you nothing. The Respondents on receipt of that Originating Application applied for an extension of time for appearance and for particulars. This was dealt with by the Industrial Tribunal, no particulars were Ordered. A Notice of Appearance dated 13th July was then filed together with a formal request for a Pre-hearing Assessment. Attached to that Notice of Appearance was a long statement, carefully reasoned and argued, over some 5 pages, together with a number of documents to which reference had been made in that statement.

The first letter of decision refusing the application for a Pre-hearing Assessment is dated the 14th July, that was the first refusal. It also refused the request for Further Particulars. The Industrial Tribunal had asked in a letter of 29th July for more information from the Respondent. The documents attached to the Notice of Appearance, which were necessary for an understanding of the Notice of Appearance were returned to Ferodo's with the comment, they were not required at this stage. However, by a letter of the 27th July they were returned and the application for a Pre-hearing Assessment was renewed. In fact, on the 22nd July in a short manuscript document the Applicant, Mr Owen, had indicated that he had been put on shift work when most of his duties entailed electrical work and that he had been unfairly selected for redundancy because the selection was not made on the current job specification.

The Tribunal, by a letter of 3rd August, again refused a Pre-hearing Assessment, and with that letter attached to it was a letter of the 30th July 1992 from the Area Secretary of the EETPU indicating that one of the issues which would be argued at the hearing was the interchange between electrical and instrument work. Ferodo, the Company, appealed to this Court. After that Notice of Appeal had been filed they received a third letter from the Industrial Tribunal saying:

"that our letter of 3rd August 1992 was sent in error.

The Chairman refused the Pre Hearing Assessment because of the representations of the applicants union representative."

that being the state of the documentation it is perhaps, not surprising, that Ferodo appealed to this Appeal Tribunal.

Mr Garside has made a number of submissions. The first submission, which applies both to the first refusal and the second refusal is that the learned Chairman did not apply the correct principle in reaching his decision. The reason he gave in those letters was that the issues in the case cannot be resolved without the need to hear oral evidence. The submission is, that this reason is erroneous in law. As will already have appeared from the reading of Rule 6 of the Industrial Tribunal Rules, the issue is, was there a reasonable argument to be advanced that the Applicant appeared to have no reasonable prospect of success, and he argues that merely to see in an Originating Application the words "unfair dismissal" does not show the issues and does not allow anyone to consider the correct question which should have been put, but which he submits was not, in fact, put.

Speaking for ourselves, we wonder why there was no attempt to narrow the issues between the parties in view of the very detailed, and somewhat complex, statement put forward by the Respondents attached to the Notice of Appearance. Although we have not heard argument on the merits of the case as a whole, it seems to us that there are likely to be two issues before the Tribunal at the Full Hearing. The first is whether this dismissal on the ground of redundancy, and there seems no issue about that but it would be as well to clarify that fact. Secondly, whether the redundancy fell within Section 59 so that it was automatically regarded as unfair and in particular, whether the dismissal was in contravention of a customary arrangement or agreed procedure relating to redundancy without any special reasons justifying a departure and/or whether the issue really is unfair selection under Section 57(3).

The position, however, is quite clear after one has received the letter from Mr Doyle the Area Secretary, of the 30th July 1992, that the issue certainly is going to lie on Section 57(3). So that although the matter was not expressed as clearly as perhaps one would have wished, nevertheless, at the date of the second refusal of the 3rd August 1992, there would have been grounds upon which the learned Chairman could have refused a Pre-hearing Assessment because even though there was success on the Section 59 issue there was clearly an issue to be decided on the Section 57(3) issue.

It is clear that he did not put to himself the precise question in Rule 6, but if he had and it may be that he had without, in fact, expressing it in his letter then in our judgment there were grounds for refusing the Pre-Hearing Assessment on the 3rd August 1992.

As to the third letter of the 27th August, where it is said, by way of submission that he had altered the grounds of his decision of the 3rd August, we accept Mr Blunt's submission about this, that really what this is doing is correcting the letter of the 3rd August.

It follows, therefore, that we would not propose to interfere with the decision in this case, as we are satisfied that this matter must be dealt with and should be dealt with at a Full Hearing. However, it seems to us that much of the present problem has arisen because there was no direction for Particulars or clarity of issues after the Originating Application had been filed.

Mr Blunt helpfully told us, that even at that stage, the Area Secretary of a trade union would have been involved and if the issues had been made clear, much of this might not have occurred.

The two issues, which seem, if we are right, to be live issues, is the Section 59 issue and/or the Section 57(3) issue. We have powers under Schedule 11 of the Employment Protection (Consolidation) Act 1978, paragraph 21, to make any Order which the Industrial Tribunal could have made and we propose to direct that Further and Better Particulars of the Originating Application are filed within 14 or 21 days, I will hear Mr Blunt in a moment, indicating what the nature of the Applicant's case, and in particular, whether he is relying on Section 59 and/or Section 57(3). We hope by so ordering to clarify the issues and perhaps save time and cost in so doing.

There was a course open to the learned Chairman, having received an application for a Preliminary Hearing, namely to call the parties in for a Hearing for Directions but that was not suggested to him. If it had been suggested he might very well have carried out that course and the future might have been clarified.

It follows, therefore, that we are satisfied here that the correct decision was reached and for the reasons which we have given the appeal will be dismissed. But we shall make that Order and we hope that will clarify the matter for the future Full Hearing of the matter.