Warner v The Chef & Brewer Group Ltd [1993] UKEAT 150_93_0410

EAT
Warner v The Chef & Brewer Group Ltd
[1993] UKEAT 150_93_0410 · 1993-10-04

JUDGE J HULL QC:

On 11th May 1992 Mr Warner applied to the Industrial Tribunal, contending that he had been unfairly dismissed. He was a Manager employed by the Respondents, and serious allegations had been made against him by the Respondents.On 4th November 1992 Messrs L Bingham & Co., the Applicant's Solicitors, wrote a very short letter to the Tribunal.
"We write to confirm that Mr Warner wishes to withdraw his originating application in the Industrial Tribunal."
No reasons given, they did not have to be of course, but that was what was said to the Tribunal.Pausing there, under Rule 12(2) it is provided:

"(2) A tribunal may, if it thinks fit, -

. . .(c) if the applicant shall at any time give notice of the withdrawal of his originating application, dismiss the proceedings;"and so the Tribunal is expressly, by the Rules, given a discretion in the matter to allow the application to be withdrawn. And normally, no doubt, when a party says "I do not want to go on with this" the Tribunal will feel quite content to say "very well then, we allow the matter to be withdrawn".Then again, for reasons about which we know nothing, on the 13th November 1992 the Applicant's Solicitors wrote again:
"We refer to this matter and we confirm that our client does not now wish to withdraw his Originating Application in the Industrial Tribunal. Accordingly, the case may proceed.
We regret to involve you in difficulty, but as we stated, our client has changed his mind."again, no grounds are given. This letter was not copied to the Respondents, the Respondents knew nothing about this and indeed at about this time engaged apparently, in negotiations, or the beginning of negotiations, with a view to settling the matter if it could be settled.In those circumstances the matter was put before a Chairman of Tribunals, Mrs Stoll, and on the 23rd November Mrs Stoll made a decision as follows:

"The application is dismissed on withdrawal by the applicant."

and so that was the decision, given with no reasons.It is not said that Mrs Stoll, the Chairman, knew about the attempt to retract the earlier withdrawal; she may or may not have known of the letter of the 13th November about which I have spoken. There is certainly no indication that Mrs Stoll applied her mind to the pros and cons of allowing the case to go ahead, or, on the other hand, saying that it should be dismissed. There were no reasons at all. One must have the suspicion either that the letter of the 13th November was never put in front of the learned Chairman, or that it was perhaps put somewhere down the bundle and all the Chairman saw and understood was that this was a formal application to withdraw. It may be, of course, that the learned Chairman was well aware of the letters of both 4th and 13th November, and applied her mind as best she could to the facts of the case, about many of which we probably have less information than she had, and reached a reasoned decision and would have given reasons if she had been asked for them; but as far as we know, she did not give any reasons. None have been asked for and there is simply the fact that the Applicant wanted the matter to proceed. From his point of view and indeed from the employers' point of view, it is clearly a serious matter.In those circumstances, the Applicant, applies to this Tribunal saying that he wishes to appeal:
"on the grounds that the Industrial Tribunal have erred in dismissing the application of the applicant in that he served notice of his intention to proceed to the Industrial Tribunal on 13th November 1992"
again, there are no reasons given at all except that he says he wanted to proceed. So it really is, as far as this Tribunal is concerned, merely assertion.We have to consider a number of matters. First of all parties ought to be aware of the reasons for decisions. Secondly, of course, Tribunals ought only to proceed, if there is opposition to an application which might otherwise proceed automatically, after considering all the merits of the case that are put before them. There is no indication at the moment that the Chairman did that. It may or may not have done. Certainly the Applicant is entitled to say, on the face of it, "Unless the Respondents have suffered some prejudice I should be allowed to proceed. The statutory remedies are given to applicants who say they have been unfairly dismissed and if I say I wish to withdraw and then change my mind shortly afterwards I should, in general, be allowed to proceed to a hearing." It is quite different from an appeal where quite clearly, as has been said repeatedly by the Court of Appeal, it is in the interests of the public that there should be an end of litigation and if a party has had his case once tried and then decides to appeal, and then decides not to proceed with the appeal, then he ought not to be allowed to change his mind except on good grounds. Here, it seems to us, if the Respondents wished to resist this application, of which as I say they knew nothing, they would have been expected normally to show that they had suffered some prejudice as a result of this change of mind - that they had taken some steps in the belief that the case had been abandoned or had incurred some costs on that basis, and in those circumstances the Applicant ought not to be allowed to change his mind. But Mr Oldham, who has addressed us with great fairness, expressly disavows any such contention, and he relies upon the more technical grounds which are put forward in his skeleton argument.First of all, if I may deal with them shortly, Mr Oldham points out that it is impracticable for this Tribunal, which is a Tribunal hearing appeals only on matters of law, to consider matters at all unless there are full written reasons for the decision; and here none have been given for the short and simple reason that, as Mr Oldham asks us to infer, the Chairman has not been asked for those reasons and so the appeal has not been prosecuted in the proper way at all. There is, no doubt, a great deal of justice in that contention. We think that the Applicant, the Appellant, should have asked for full reasons from Mrs Stoll, and no doubt he would then have learned whether the Chairman had applied her mind to the merits of the case or whether she had simply dealt with it without being aware that there was an attempt to proceed with the case. Mr Oldham invites our attention to cases in which this Tribunal has refused in its discretion to proceed where the rules have not been complied with. Then he says this is a case for review. Again, we are disposed to agree with Mr Oldham's submission it is a case in which the Appellant should have applied for a review, instead of coming straight here. He did not. Mr Oldham very fairly concedes that that does not mean that we cannot consider the appeal; it merely means that that is another weight in the scales against the Appellant. Then Mr Oldham takes a rather technical point on the meaning of the rules and says that the election not to proceed is a final election. In a sense, of course it is. He says, thereafter the discretion belongs to the Chairman of the Tribunal as to whether to accept that. We agree, the question is of course whether the Chairman did exercise her discretion. Again, Mr Oldham concedes with great fairness that none of that prevents us considering the matter as a matter of discretion for us, in spite of the very just criticisms which he makes here.To set against these arguments, we have the fact that this Appellant has (for reasons not given, again something which is against him) changed his mind and wishes his application, which is a serious one, to be heard by the Tribunal. He says serious allegations have been made and should be investigated and he says "the worst I have done, looking at the merits, is to change my mind and that has not in the circumstances prejudiced the Respondents." That we think is true. As to the averments concerning what happened before the Chairman, we are in ignorance about that, and that is very largely the Appellant's fault. We think that the question of law is raised whether in fact this Industrial Tribunal Chairman did exercise her discretion at all and whether, if so, she had any reasons, apart from what emerges from the documents, for exercising her discretion. We have a strong suspicion that she was not aware that it was sought to proceed when she decided the matter. It is a very short decision.Despite the matters to which Mr Oldham has very fairly invited our attention, we think that on balance we should exercise our discretion to this extent, that we should remit the case to the learned Chairman, first of all to make sure that she has considered the letter of the 13th November and all other material matters; secondly, if she has already made up her mind on the basis of that and on reasons, to state her reasons for the benefit of the Appellant; and thirdly, if she has not already exercised her discretion then we ask her please to do so - to exercise her discretion on the basis that this is a contested matter and that she has considered all that should be laid before her - in those circumstances the parties will of course be entitled to make any submissions either in writing or, if the Chairman allows them to, orally before her. We think it likely that she will merely wish to receive written submissions, but that is a matter for her. All we are saying today is that we remit the matter to the Chairman for further consideration, to state her reasons if she has already reached her decision; if not, to consider the matter as a contested matter and decide it on the basis of a reasoned discretion.Needless to say the question of what happens when reasons are stated by the Chairman is one for the parties; we have merely remitted this.