Sharma v Viva Video Club [1993] UKEAT 697_92_1205

EAT
Sharma v Viva Video Club
[1993] UKEAT 697_92_1205 · 1993-05-12

JUDGE N HAGUE QC:

On 24th March 1992 Mr N K Sharma made an application to the Industrial Tribunal making claims for unfair dismissal, together with other claims, against Mrs J Sethi, trading as Viva Video Club.The named representative in his Originating Application was Mr Eddie Coppinger of the Employment & Unwaged Rights Unit, an organisation funded apparently by the Hounslow Council. Mr Sharma alleged that he had been unfairly dismissed from his employment as the Manager of Mrs Sethi's video shop.Mrs Sethi, in her Notice of Appearance, contested Mr Sharma's claim, her main grounds being that Mr Sharma was self-employed and that anyway that he had only been the Manager under her auspices for under the two-year period which is necessary for a valid claim for unfair dismissal.On the 2nd April 1992 Mr Coppinger wrote to the Assistant Secretary in the Regional Office of the Industrial Tribunals in London (North) saying this:
"Please note that the Applicant wishes to withdraw fully his Originating Application. Please can you accept this letter as formal notification."
As was pointed out in the course of argument, it appears that (in contrast to a later letter) no copy of that letter was sent to Mr Sharma. Following that letter on the 24th April the Industrial Tribunal formally dismissed Mr Sharma's application. The decision of the Tribunal is simply a one line decision:

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

The reason why Mr Coppinger wrote that letter of 2nd April 1992 appears from a subsequent letter he wrote to the Assistant Secretary on the 26th May. The material paragraphs read as follows:
"On the 2nd April 1992 we were contacted by someone who claimed to be the Applicant's wife. This individual advised us that the Applicant wished to withdraw his originating application, and so later on that day we wrote to yourselves advising you of what we genuinely believed was the Applicant's instructions.
However, subsequently the Applicant has informed us that these were not his instructions and that his wife has never telephoned us.Therefore, can we request that the Applicant's originating application is reinstated as a matter of urgency, and can we also apologise for the inconvenience this must have caused."The Industrial Tribunal, rightly, took that letter as a request for a review of its original decision.According to Mr Sharma and Mr Coppinger, what happened was that on or shortly before the 26th May Mr Sharma had asked Mr Coppinger how his claim to the Industrial Tribunal was coming along, and the facts as set out in the letter thereupon came out. The Assistant Secretary replied to that letter on the 19th June 1992 as follows:
"Your letter dated 26 May 1992 has been referred to a Chairman, who has asked me to inform you that the Originating Application was dismissed on withdrawal in accordance with the application contained in your letter dated 2 April 1992 and the Tribunal has no power to review the Decision under Rule 10(1)(a) of the rules of procedure."
The reference to that rule is a reference to Rule 10 set out in Schedule 1 of the Industrial Tribunals (Rules of Procedure) Regulations 1985. Rule 10(1) 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 part of the tribunal staff; or (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."
Rule 10(3) says this:
"An application for the purposes of paragraph (1) of this Rule may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success."
It appears to be Rule 10(3) which the Chairman in this case evoked in refusing Mr Coppinger's request. Under Rule 10(2) it is provided that an application for review can only be made within 14 days after the date on which the decision was sent to the parties. However, under Rule 12(2)(a) a tribunal has power, if it thinks fit, to extend that time limit.The Chairman of the Industrial Tribunal's reference to Rule 10(1)(a) is correct as far as it goes. Nobody has suggested, and it could not possibly be suggested, that the decision was made as a result of an error on the part of the Tribunal staff. However, the Chairman does not, on the face of the letter at all events, appear to have considered either paragraphs (d) or (e) which we have set out. It seems to us that those two paragraphs are, or certainly might be, highly material having regard to the situation which has arisen.If the facts are as alleged by Mr Sharma and Mr Coppinger, it would, it seems to us, mean Mr Sharma has been unfairly and unjustly deprived of putting his claims. In the authorities in which the power to review has been considered, it has been stressed that it is important for a Tribunal to be careful in exercising that power that a party should not have "two bites of the cherry", as Mr Justice Bristow put it in the case of Morris v. Griffiths [1977] ICR 153 at p.156A. But, like that case, the present case is different because Mr Sharma has not had any "bite at the cherry" at all. We express the opinion that if the facts are as alleged by Mr Sharma and Mr Coppinger, the interests of justice require the decision to be revoked. Also, we think, there is new relevant evidence, that is to say the fact of the telephone call to Mr Coppinger, and that it would be right to extend time on that ground too. On the latter point it must be borne in mind that the matter in issue did not come to light until after the expiry of the 14 day time limit and immediately it had come to light the application for a review was made.Miss Lewis, on behalf of Mr Sharma, has urged us that in the circumstances outlined above, we should simply ourselves revoke the Industrial Tribunal's original decision and order a full hearing on the merits. We do not feel able to take that course. The decisions to extend the time-limit and to revoke the Tribunal's original decision must, we think, be that of the Tribunal. The Tribunal can hear evidence from the persons concerned; its possible that further facts might emerge to show, for instance, that the telephone instructions to Mr Coppinger to withdraw the claim had been given by Mrs Sharma's wife or some other person with his authority, or otherwise to materially affect the position. (Mr Dhingra, who appeared on behalf of Mrs Sethi, indicated that this would be his client's contention.) Further, although we have expressed our views on the facts as alleged by Mr Sharma and Mr Coppinger, we should make it clear that the decisions to extend time and to revoke are matters for the discretion of the Industrial Tribunal itself.For these reasons, which we think correspond with the reasons given by Mr Justice Tucker in delivering this Appeal Tribunal's decision on the preliminary hearing in this case, we allow this appeal and remit the case the Industrial Tribunal to reconsider Mr Sharma's application for review in the light of this judgment.We add two further matters by way of postscript. Mr Dhingra took the opportunity, which he emphasised was the first opportunity Mrs Sethi had had before any Tribunal, to remind us that Mr Sharma's claim is strongly contested on the grounds we have mentioned. In particular, he said, as we understand him, that Mrs Sethi had acquired the video shop from a Mr Smith within the two years before the alleged dismissal. If that is so, Mr Sharma would have to rely on the statutory provisions concerning the Transfer of Undertakings. Mr Dhingra said that Mr Sharma's claim was without merit or foundation.However, these matters are really not relevant to this appeal, Mrs Sethi will of course be fully able to put her case if and when the Industrial Tribunal proceeds to a full hearing. It was also suggested that Mr Sharma had expressed relevant facts in relation to Mr Smith and did not come to the Tribunal with `clean hands'. We consider that this is putting the matter far too strongly, but in any event it is not relevant to what we have to decide.Secondly, we should like to place on record that shortly after receiving the reply from the Industrial Tribunal Mr Coppinger wrote to Mr Sharma saying this:
"As the Tribunals decision is not favourable I feel duty bound to advise you that you have the right to sue our Unit should you feel that I have at all acted improperly, although I would wish to state that at all times I have acted in good faith and in accordance with what I genuinely believed were your instructions."
We simply comment that this letter is entirely to Mr Coppinger's credit.