Shetta v Executive Cleaning Services Plc [1993] UKEAT 548_92_2810

EAT
Shetta v Executive Cleaning Services Plc
[1993] UKEAT 548_92_2810 · 1993-10-28
MR JUSTICE KNOX : This is an appeal by Mrs Shetta from a refusal by the Chairman of an Industrial Tribunal to accede to a request for the decision that the Industrial Tribunal had earlier reached to be reviewed. The hearing took place between 29 October 1991 and 30 January 1992 both dates inclusive but the latter date being a hearing in Chambers, not one where evidence was heard. The decision was sent to the parties on 3 March 1992 and it would seem, although there is some documentary evidence to the contrary, that the application for a review was initially made on 16 March 1992. The only evidence to the contrary is a letter that refers to the application as having been made on 16 February but since the decision had not been sent to the parties by then it seems a certainty that the month has been wrongly identified.At that stage three points were taken on behalf of the Appellant before us Mrs Shetta. One point which is not surprisingly not taken on her behalf was that there was anything wrong with the initial decision of the Industrial Tribunal which was that she had been unfairly dismissed contrary to the provisions of the Employment Protection (Consolidation) Ltd 1978. There is no cross-appeal about that before us and the matter before us is limited to questions of quantum. The Order in relation to quantum that the Industrial Tribunal made was first of all for a basic award which was limited by the statutory ceiling and therefore was not the subject of any debate before us and was in the relatively small sum of £891. Secondly the compensatory award which is the matter of dispute before us and which was evaluated at £2,215.32 plus a non-controversial loss of statutory industrial rights at the traditional figure, at any rate in those days, of £100 plus again a non-controversial figure of a mere £50 in respect of interest.So the issues that have been argued before us are solely concerned with the quantum of the compensatory award which is to be assessed according to the fairly general principle that is to be found in the 1978 Act which provides in Section 74(1) that:
"Subject to sections 75 and 76, [which do not have any relevance to this case] the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer."
The points that are material for our purposes that were taken in the request on 16 March 1992 for a review are (b) and (c) in the letter which reads as follows:
"(b) The Applicant's net monthly income with the Respondent was £866.50 and not £800. Page 17 of the bundle of documents before the Tribunal confirmed this. The Applicant therefore suffers a continuing loss.
Paragraph (c) deals with monthly income under the applicant Mrs Shetta's new subsequent employment and it is not necessary for our purposes to go into the details of that matter. It will suffice for present purposes to say that at this stage at least it was claimed that that new income was lower than the Industrial Tribunal had fixed it at.The request for review came before the Chairman and was replied to on 15 April 1992 in a letter from the Assistant Secretary of the Tribunals in the usual way, not by the Chairman in person, and as to paragraph (b) this is said:
"...the IT1 states that the applicant's average monthly take home pay as £800 and this was accepted by the respondent in the notice of appearance. Page 17 of the bundle of documents does not confirm, as you state that her net monthly income as £866.50, page 17 shows that the applicant was earning varying amounts over the period July 1990 to May 1991 and that her take home pay in January 1991 was £866.50 whereas in May 1991, the month of her dismissal, it was £633.74."
(I need not read the answer to paragraph (c) because it does not add anything to what we have to decide on (b)). That letter also contained a request to both parties to comment within 14 days. That was done, just, so far as the time is concerned, on behalf of Mrs Shetta but unfortunately the letter did not carry initially (nothing turns on that, it subsequently did carry) and what matters is what is said and that is this:
"Commenting first on paragraph b, of your letter. Page 2 of a separate document handed to the Tribunal by the Respondent's Counsel at the hearing (page 1 of which is a copy of page 17 of the Applicant's bundle) sets out the reasons for the variations in the Applicant's monthly salary. A copy is attached. It shows that from January 1991, the Applicant received an increase in salary so that thereafter she was receiving a monthly gross sum of £1,250 and a net sum of £866.50. She received this in January, February, March and April of 1991, except that in March she also received a bonus of £350 and in April a commission of £32.50. In the month of May, she received only statutory sick pay and holiday pay. In my view, this confirms that the Applicant's monthly income was £866.50.
Then there is a submission made about paragraph 6, Schedule 14 to the 1978 Act which on the view we take of the matter regarding the basic award, is not relevant for present purposes.When that letter carried, which it did somewhat later, it received the following reply dated 29 May 1992 which contains the decision against which this appeal is brought. So far as material it reads as follows:-
"The papers were referred to the Chairman who has asked me to point out that those papers do not contain any new material which was not before the tribunal at the hearing of the case. All the points set out in your letter of 29 April and the attached documents were considered by the tribunal in arriving at its original decision. The Chairman took an exact note of the applicant's evidence as to her earnings in her new employment; this is referred to in paragraph (c) of our letter of 15 April.
In the circumstances, the Chairman has decided that there are no grounds for reviewing the decision made on 7 May 1992."That is a reference to the rule that governs reviews of tribunals' decisions. The rule is Rule 10(1) of Schedule 1 to the statutory instrument that contains the Industrial Tribunal Rules of Procedure and that subrule reads as follows:"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; (b)... (c)... (d)new evidence has become available since the conclusion of the hearing to which the decision relates provided that its existence could not have been reasonably known of or foreseen; or (e)the interests of justice require such a review".We interpret the Chairman's letter saying that there are no grounds for reviewing as a finding that none of those paragraphs is in the circumstances applicable. It was made clear to us by Mr Gadhia, who presented an able argument on behalf of Mrs Shetta, that reliance was placed exclusively on paragraph (e) "the interests of justice require such a review".It is also apparent from the terms of that letter written on the Chairman's instructions, of 19 May 1992, that he had had before him the letter that had originally been sent on 29 April 1992 but which initially miscarried but later was received by the Regional Office of the Industrial Tribunals, and the enclosures with those letters. Those two enclosures were before us, one of them (which is slightly confusingly page 18 of our bundle but was page 17 of the bundle that appears to have been before the Industrial Tribunal) has listed amounts under Mrs Shetta's name of her gross and net earnings for months from July 1990 to May 1991. The second page is the page that was handed up by the Respondent's Counsel according to the letter which was written on behalf of Mrs Shetta on 29 April 1992 and that was not challenged before us, although the same Counsel did not appear before us on behalf of the Respondent as appeared before the Industrial Tribunal, so we take that as not controverted.We therefore have the situation that this document(a) was before the Industrial Tribunal at the end of the hearing before it and(b) was before the Chairman of the Industrial Tribunal before he gave the instructions which led to the refusal of a review.The document has various dates in the left-hand column and figures and comments on the figures in the right-hand column. The material ones are "January 1991 - increase in salary", "March 1991 - £350 bonus", "April 1991 - £32.50 commission". That all ties in with the explanation that was given in the letter of 29 April in that there was an increase in the figures in the first of the two pages, the original page 17 (18 in our bundle) from £1166.66 gross which obtained from July to October and was somewhat exceeded in subsequent months, and the £1250 that one finds applicable in January, February and, with the bonus in March 1991, March 1991, so that if one is instructed as to the significance of the second sheet of paper with those entries on it which I have read, they do fit with the case that is put forward on behalf of Mrs Shetta as producing (if the figures are accepted) an increase in salary in January 1991 which accounted for the increase from £1166.66 to £1250 in gross and from £846.91 to £866.50 as the net figure between the late months in 1990 and the early months in 1991.That then is the material that was before the Industrial Tribunal and one turns to the basis upon which the appeal before us is mounted against the refusal to grant a review. The points that are put are that there was an error in law in refusing to review the decision of 3 March 1992 in which there were incorrect findings as to the net income of Mrs Shetta from her employment at the time of her dismissal and her net income from her new employment which commenced sometime after the dismissal complained of.There are details then given about the figures on which nothing very much turns and then the proposition of law is put:
"The interests of justice require that a decision should be reviewed where there has been a clear and demonstrable error in the Tribunal's decision arising from either a misinterpretation by the Tribunal of the evidence before it or from the evidence given to the Tribunal being mistaken evidence."
The further paragraph does not as it seems to us, add anything to this aspect of the matter. At one point it seemed that it was possibly intended to rely on the paragraph that allows reviews where a Tribunal's staff makes an error but that was not pursued before us as a separate ground for the granting of the review and we need not deal with that further.What we have therefore is a claim that there was a clear and demonstrable error in the Tribunal's decision and its failure to grant a review is in those circumstances an error of law. It was accepted, not unnaturally, that this Tribunal's jurisdiction is limited to correcting errors of law (that is not controversial). It was submitted that that was satisfied here in that it was plain that the figure was wrong. There can be no doubt we think that the actual error, if it is completely established, is an error of fact. It goes entirely to how much Mrs Shetta was earning at a particular time and nothing could more clearly be an issue of fact than what the correct figure is.There is of course, it is notorious, clear Parliamentary intention that the decision on issues of fact as opposed to law is entrusted to Industrial Tribunals as opposed to this Tribunal. On the other hand, we have been shown by Mr Gadhia authorities that do substantiate the proposition that an Industrial Tribunal certainly has jurisdiction to correct errors of law if it appreciates that it has made one. In particular we were referred to British Midland Airways Ltd v Lewis [1978] ICR 782 at 785 of which one finds this:
"It seems to us that in a case like this, where, as the law then was, a mistake may have been made and the matter has come to light, it is desirable for the industrial tribunal, if there is an application for review, to correct the matter even if it involves overturning the original decision of the industrial tribunal. From time to time we have appeals, sometimes in relation to small matters of compensation, sometimes in relation to matters where there has been a slip, or an error of law of some sort or another, and the mistakes have come to light quite soon after the hearing of the industrial tribunal. It seems to us that the convenient course is for such mistakes, when they occur and are recognised, to be corrected by review rather than by appeal, because the appeal takes much longer and is much more expensive."
That plainly is, if we may say so, correct, but it does only go to what an Industrial Tribunal can do. It does not go to the question which faces us namely - in what circumstances, when an Industrial Tribunal with the material before it, refuses to grant a review, can it be said to have committed an error which this Tribunal should correct?Somewhat nearer the facts of this case but still distant from it is the decision of Yorkshire Engineering and Welding Co Ltd v Burnham [1974] ICR 77 where there was a forecast of future earnings in relation to an award on unfair dismissal. The forecast turned out not to be precisely accurate. The actual scale of the error was not very large because the estimate was £36.50 gross per week and in the event the job which was offered to the Applicant was at a wage of £40.38 per week and so the error is clearly not very far in excess of £4 per week which is not much in excess of 10% of the original estimate.In that decision the National Industrial Relations Court held firstly:"That the test for an industrial tribunal to decide whether or not to review a decision was whether the forecasts which were the basis of the decision had been falsified to a sufficiently substantial extent to invalidate the tribunal's assessment and whether that falsification occurred so soon after the decision that a review was necessary in the interests of justice".and secondly that on the facts of that particular case since:"the facts were not in the event substantially different from what was forecast the tribunal had rightly refused a review of their decision".Mr Gadhia pointed out, perfectly correctly, to us that when one is engaged in making a forecast there is inevitably involved in that operation a degree of elasticity because (unless one is gifted with second sight) it is not possible to be exactly sure what the future holds and there is therefore that difference between that case and the present one, namely that here the object of the exercise was to discover a historic fact that had occurred and upon which there was evidence; a matter which in principle at least is susceptible of very precise identification whereas in the Yorkshire Engineering v Burnham case it was a question of foreseeing what the future might hold, a necessarily uncertain exercise.The other important difference between that case and this is that the event that caused the upset in the prognostications of the Tribunal, was an event that occurred after the hearing because it was only after the event that there was the offer of the wage at £40.38 per week. There is no such element here because here the only novel element that is to be found is possibly in the verbal explanation that enables one to understand the precise effect of the second page (19 in our bundle) upon the figures contained on the first page (page 18 of our bundle) in Mrs Shetta's gross and net earnings before she was dismissed. Those are all matters which were in the past when the Industrial Tribunal hearing took place between October 1991 and January 1992 and there is no element of futurity of comparable nature to the very clear element of futurity in the Yorkshire Engineering case.The same applies to a decision to which our attention was drawn by Miss Bothroyd on behalf of the Respondent Company in Ladup Ltd v Barnes [1982] ICR 107 where there had been a finding that an employee was unfairly dismissed when he was charged with growing and possessing cannabis. After the hearing that came to the conclusion that he had been unfairly dismissed, the employee was convicted of possessing cannabis and the employers applied for a review of the finding that the employee had not contributed to his own dismissal. That was refused in the Industrial Tribunal on the ground that it had no prospect of success and this Tribunal held that that was wrong and should be corrected. Mr

Justice Bristow giving the judgment of this Tribunal said at page 109:

"In our judgment, that contention, on the facts of this case, is quite unanswerable. [This was that there was 100% contribution to the dismissal]. When the industrial tribunal took their decision that the dismissal was unfair, on the facts then before them and, indeed, in the situation even as it is now, their decision is no doubt right and is not the subject of complaint. But, it is said, although their decision at the time on the compensation matter under the contribution provisions in section 73 and section 74 was then unchallengeable, in the light of what happened within a month of that decision being taken it can be seen that that decision on contribution has created a blatant injustice and that, if you diagnose the causation of the employee's dismissal, you come back inevitably to the fact that he was in possession of cannabis and got caught."
That of course is a decision again in relation to an event, and indeed a revolutionary event if one is comparing the view that the Industrial Tribunal took initially, that happened after the hearing before the Industrial Tribunal and that again puts the case in a separate category factually from the present case but it does help Mr Gadhia's argument that there can be circumstances where it would be right for an Industrial Tribunal to correct what is an error of fact in the light of an event of sufficiently revolutionary nature that occurs after the date of the initial hearing.We come back therefore to the question whether the Industrial Tribunal in this case was in error and whether we should correct the view that they took and direct that there should be a review conducted by it. As was pointed out to us by Miss Bothroyd this would be slightly odd because it is clear from what has already been mentioned, that the Chairman did look at all the material and did in fact apply his mind to what is now said to be sufficiently conclusive to show that the initial decision was wrong. Nevertheless the Chairman came to the conclusion that the Tribunal's decision should not be reviewed, clearly because he still adhered to the view that it was right.We accept the point that is made by Mr Gadhia that this is not strictly comparable to the case where a Tribunal has to balance evidence given on one side against evidence given on another side where plainly it is a matter of discretion for the Industrial Tribunal which side it believes. The suggestion was made to us that the Industrial Tribunal was effectively choosing between what the parties had said in their respective IT1 Originating Application and IT3 Notice of Appearance by the Respondent, which was on the one hand that the average take-home pay of Mrs Shetta was £800 per month and that the details given by her about her wages were correct and on the other hand the subsequent evidence that was given and which was submitted to us as indicating that Mrs Shetta's income was properly to be assessed at the higher figure of £866.50 net rather than the £800 that formed the accepted figures on the pleadings.We are not satisfied that this is a case where it would be right for us to interfere. It seems to us that the error (if error there was and one can see the arguments in favour of its being said that factually there was a mistake here on the grounds that the evidence in favour of the higher figure is more compelling than the evidence in favour of the lower) was undoubtedly an error of fact on any view and equally there is very clearly a Parliamentary policy that errors of fact are not subject to correction by this Tribunal.Secondly this is not a case where the Industrial Tribunal did not look at the material for the reasons that have already been given arising out of the decision letter of 29 May 1992. Thirdly insofar as there was a lacuna in the evidence before the Industrial Tribunal it consisted exclusively in the oral evidence that is needed to supplement the second sheet of paper and explain it as a correction of the first sheet of paper in the way that has already been gone through.Mr Gadhia very frankly and properly accepted that this was not something which could be laid at the door of the Industrial Tribunal. In particular he accepted that it was no part of his case that he applied to be allowed to adduce evidence and that the Chairman refused that application. The highest that the case can be put on this aspect is that matters were gone over rather fast towards the end of the second day and that the point in practice went by default.The situation however does seem to us to be one where the material was there and it is conceivable that it was not put sufficiently forcibly to the Industrial Tribunal but whether or not that is right seems to us to be secondary to the consideration that the material was all there and this is not one of those cases where there has been some subsequent event that has introduced a new factor which should lead to a review.Finally it is to be borne in mind that we are dealing with fairly small figures in relative as well as absolute terms. We are dealing with a difference between a monthly pay of £866.50 and a monthly pay of £800 and we are dealing with past loss of 12 weeks and an uncertain period of future loss so that one is at the lower end of the scale in relation to the scale of the error if error there be.For all those reasons we are not satisfied that the Industrial Tribunal was so far in error as to justify our interfering with their decision and that leads us to the conclusion that this appeal must be dismissed.