Sykes v BMP DDB Needham Worldwide Ltd [1993] UKEAT 707_92_0510

EAT

Sykes v BMP DDB Needham Worldwide Ltd

[1993] UKEAT 707_92_0510 · 1993-10-05

MR JUSTICE KNOX: This is an unfortunate affair for procedural reasons. The Appellant before us is Mr Sykes who was employed by an advertising firm, BMP DDB Needham Worldwide Ltd. I will call it for brevity "the employers". Unfortunately Mr Sykes, due to repeated offences against the Road Traffic legislation, lost his licence for a period of 10 months. Mr Sykes was based, so far as his office was concerned, in Harrogate and lived some 50 miles away in Stockton or Middlesbrough. He did a substantial mileage per annum but a large proportion of that clearly was attributable to the 50 miles or so between his home and his office and only a relatively small proportion, although in absolute terms it may have been a large mileage, was used in going to see clients. Mr Sykes was an adviser on advertising and his employers handled the advertising for Volkswagen agents and he had some 104 dealers, he tells us, and had to go to see some but not all of them because there were some who decided to go for press advertising and, if they did that, a visit was not necessary where otherwise it might have been. Obviously different views in principle could be held on the question whether a person with those sort of functions could satisfactorily, from the employers' point of view, discharge them by only using public transport. Mr Sykes's employers took the view, somewhat summarily, that it was not possible for Mr Sykes thus to discharge his functions properly and they dismissed him. He had kept them in the picture about the situation in relation to his being banned from driving because there were successive offences one of which Mr Sykes pleaded "not guilty" to and the second of which he pleaded "guilty" to. It is not necessary for our purposes to go into the details of that. There was a telephone conversation between the officer who dismissed Mr Sykes which gave a warning that the situation was not rosy from Mr Sykes's point of view, closely followed by a letter which dismissed Mr Sykes without more ado and gave him a cheque in respect of financial compensation. Mr Sykes did not share his employers' opinion that he could not satisfactorily do his job by using public transport. He had a relative, or connection by marriage, available not very far from the office where he worked and it was his view, but not the employers', that such visiting as was needed could be effected by him through public transport.

Both parties were represented, or appeared in person, before the Industrial Tribunal. The Industrial Tribunal came to the conclusion that the employers were entitled to take the view that the loss of Mr Sykes's licence and the length of the ban meant that there was no alternative way of Mr Sykes performing his functions. They say of that view:

". . . it does fall within such a broad band of reasonable responses. It may be that it falls towards the outer limit . . ."

but they were firmly of the view that it went within the "reasonable band". The Industrial Tribunal of course was right in saying as it did that it was not their function to decide what they would have done if they had been in the employers' shoes. What they had to do was what they sought to do, that is to see whether what the employers did was within the band of reasonable responses to the circumstances.

Mr Sykes then wrote a letter, because he was dissatisfied with that view expressed by the Industrial Tribunal and that letter, because Mr Sykes is a layman and not a lawyer, was couched in unfortunately ambiguous terms. It starts and finishes by saying Mr Sykes wished to appeal against the Industrial Tribunal's decision. It then goes on to say:

"The decision was wrongly made as a result of an error on the part of the tribunal staff."

That, in fact, was an error on Mr Sykes' part because he did not, at that stage at any rate, appreciate the difference between the Tribunal on the one hand and the Tribunal staff on the other. Mr Sykes' main point was that the Industrial Tribunal had simply got the factual situation wrong in that they had approached the matter on the basis that he was a travelling salesman, or the equivalent, spending most of his time driving whereas, on his view of the matter, and he produced his diary and other material to substantiate this, the majority of his time, some 76%, was spent in the office and it was only a minority of his time that was spent travelling around the country.

There were other subsidiary points, namely, that a witness that Mr Sykes called, a Mr Taylor, who was the Northern Regional Manager to Volkswagen, said in evidence that if the question had arisen in relation to one of his, Mr Taylor's field representatives, he could only look on a ban of 3 months and Mr Sykes says, with force and no doubt rightly, that he was not a field representative and therefore that comparison was not of any assistance to the Industrial Tribunal. It is however fair to say that the Industrial Tribunal did not say that what Mr Taylor did was directly comparable. What they actually said about Mr Taylor's evidence was this:

"The ordered witness called by Mr Sykes added weight by his evidence to this contention by the employer."

and the contention by the employers was that it was not possible for Mr Sykes to be able, properly, to carry out his functions for any length of time, certainly, for 10 months by using public transport.

However, these are matters which are of relatively peripheral importance because it is with the subsequent procedural history that this appeal is concerned. What happened was that Mr Sykes's letter, ambiguous for the reasons that I have just mentioned, was initially treated as an appeal, and appeals of course come to the Employment Appeal Tribunal and after a preliminary hearing it went to a full hearing of this Tribunal on the 21st May 1992. The appeal was dismissed on the ground that it only raised a question of fact and Mr Sykes was, at that stage, constrained to agree with that analysis of the matter. The indications are that Mr Sykes had not at that stage familiarised himself or ever discovered anything about perversity in connection with Industrial Tribunal decisions on questions of fact. The situation, of course, was that if the Industrial Tribunal's decision had been so erroneous that it was one which no reasonable Tribunal properly instructed as to the law could reach then it would have been an error of law committed by the Industrial Tribunal to reach that decision and that would, therefore, have been something that this Tribunal in May of last year could have allowed the appeal on, had it taken that view.

Mr Sykes did not adopt that attitude before this Tribunal. When he received the decision of this Tribunal saying that the decision below was one of fact and that the Employment Appeal Tribunal had no jurisdiction on questions of fact but only on questions of law but that what he had originally asked for was really a review rather than an appeal, he applied for a review by renewing the application that he had originally made in June 1990 and that came before the Industrial Tribunal and it is with the way in which the Industrial Tribunal dealt with that application that this appeal is concerned. The Industrial Tribunal when it was again asked for a review, pointed out the original ambiguities in the original letter that was written by Mr Sykes and traced the earlier history of the matter and recorded the fact that there was a full appeal which had been unsuccessful. Then having accepted that it would be right in the circumstances for time to be extended, if necessary, to enable the letter, that was now written raising the question of review to be dealt with substantively, it did so in the following terms, first of all:

"The application discloses no error on the part of the Tribunal staff."

secondly, it said:

"The content of the letter [that is Mr Sykes's letter asking for a review] is merely an attempt to argue with the Tribunal that it misinterpreted the evidence and decided the facts wrongly. That is not a ground for review although the allegation that upon the evidence before it no reasonable Tribunal properly directed could have reached the decision it did ie the Tribunal's decision was perverse, is a matter of law and can form the basis of an appeal to the Employment Appeal Tribunal."

and those are the two reasons that are given for refusing the review.

Mr Sykes's appeal against that contains this, as its opening paragraph:

"I would like to appeal on the industrial tribunal's decision on a point of law namely THAT UPON THE EVIDENCE BEFORE IT NO REASONABLE TRIBUNAL PROPERLY DIRECTED COULD HAVE REACHED THE DECISION IT DID I.E THE TRIBUNALS DECISION WAS PERVERSE."

and then he goes on to give reasons why that should be so, that he was given no opportunity to make representations, that he had produced evidence in the shape of his diary and an analysis of what it said that showed what the right conclusion was and that there were various matters in the original decision of the Tribunal which were not in accordance with the evidence that was given before it.

Assuming, for the sake of argument, but not deciding, that Mr Sykes was right about all this and that the original decision was so wrong that it could fall into the category of "perverse", that is not a matter for review before the Industrial Tribunal. That is a matter which is, as Mr Sykes's latest letter accurately states, a point of law and it was a point of law which if it was going to be pursued should have been pursued before this Tribunal in May of last year. There cannot be more than one appeal from any one decision of an industrial tribunal, unless of course the matter is remitted for the industrial tribunal to reconsider, whereupon the reconsideration may be the subject of an appeal, but putting that sort of possibility on one side, there can only be one appeal from one decision and that appeal has in fact taken place. It took place in May of last year and had it been a case of perverse decision that would have been the time to deal with it. That is not what happened for two reasons, one, that it was not put to this Tribunal that this was a case of perversity and, indeed, that leads us to the second reason and that is that we have the gravest possible doubts whether this could ever possibly be a true case of perversity because although one can see that there are points which Mr Sykes can argue and has argued, both before the Industrial Tribunal and here, in favour of his analysis of the facts and in favour of the proposition that he could have done the job perfectly well by public transport, this is very far from being one of those cases where there is only one possible answer. It is very much more a case where some people might decide it one way, and others might decide it the other. But however that may be and whether we are right or wrong about that, the fact of the matter is that if a perversity case was to be run it had to be run last year when there was an appeal on law and that appeal failed. We can see no error of law in the Industrial Tribunal's decision to refuse a review, and indeed the reasons that Mr Sykes adduces for appealing against that reason, reinforce the view that the Industrial Tribunal was right on that occasion, whether or not it was right on the earlier occasion. It therefore is our duty to dismiss this appeal.