Mist v Anglian Windows Ltd [1994] UKEAT 1078_93_2004

EAT

Mist v Anglian Windows Ltd

[1994] UKEAT 1078_93_2004 · 1994-04-20

MR JUSTICE MORRISON: The application before us is, in a sense, for leave to make an appeal against a decision of an Industrial Tribunal held at Southampton on the 19 and 21 April and resumed on the 21 September 1993. The Tribunal unanimously concluded at the end of the hearing on the 21 September 1993, that the Applicant was not dismissed from her employment, but had resigned from it on the 30 July 1992.

The real point that has been raised before us arises in this way. At the end of the second of the three days of the hearing, that is on the 21 April 1993, and before the matter was to come back before the Tribunal some five months later, a discussion took place between Mrs Mist, her husband possibly, and her Solicitor, Mr Orchard of a local firm, as to whether it would be sensible for Mr Orchard to seek a view from the Tribunal as to how things were going before they resumed. He explained that there was a risk that if he did ask and the response was negative, that might entail a liability for costs if the case were then pursued.

After that discussion Mrs Mist agreed that Mr Orchard should make that enquiry of the Tribunal and accordingly, for that purpose, the Tribunal sat together with the legal representatives of respectively the Applicant, that is Mr Orchard, and the lawyer representing the defendants. There is a dispute between Mrs Mist, I think, and Mr Orchard as to precisely what he said to her when he had had the indication given from the Industrial Tribunal, but for our purposes, since Mrs Mist was not there, and we have not had the benefit of any representation from Mr Orchard, it seems to us that we should accept what the Tribunal themselves say as to what transpired on the occasion in question.

What the Tribunal have said is that at the close of the hearing on the 21 April, Mr Orchard, the Solicitor acting for the Applicant, asked that all parties and witnesses, apart from himself and Miss Parkinson, Solicitor for the Respondents, should withdraw. In the presence of Miss Parkinson he asked whether the Tribunal were able to give any indication as to any view they might have formed. The Tribunal indicated that they had formed a tentative view that they may well find that the Applicant had resigned, rather than been dismissed.

Following that indication, and following the conversation between Mr Orchard and Mrs Mist and her husband, there was some correspondence during the intervening period, both between Mrs Mist and her Solicitors, and between Mrs Mist and the Tribunal. On the 10 September 1993, that is before the Tribunal was to resume its hearing, on the basis of new legal advice that she had received, Mrs Mist wrote as follows to the Industrial Tribunal:

"I understand that at the end of the last Hearing, in my absence, the Chairman of the Tribunal indicated to my representative Mr Orchard that I would lose the case. I should point out that Mr Orchard had not by then even closed my case.

It is my view that such an indication should not have been given to my representative by the Chairman, and if a reasonable independent observer had been present at the Hearing he would have gained the impression of bias".

and thus she respectfully requested the Tribunal disqualified itself from proceeding with the matter. That letter was replied to by the Industrial Tribunal. It is said in the letter of the 15 September 1993:

"The Chairman's recollection is that at the conclusion of the day's hearing on 19 April, your Solicitor, Mr Orchard, took the step of asking the Tribunal if they were able and willing to give any indication as to any view they might have formed.

In view of his request, and in view of the fact that you had personally completed your evidence such an indication was given. Your case has not yet finished. Your husband's evidence is not yet concluded and it may be that you will wish to call other witnesses. It is not improper for the Tribunal to express a preliminary view, particularly if asked to do so as here. It was tentative that the indication given was both preliminary and in view of the fact that you had not concluded your case and Mr Orchard appeared to accept it on this basis. It did not represent a concluded decision and it is proposed that the same Tribunal shall continue to hear the matter".

Unfortunately, it appears that Mrs Mist had lost confidence in the Industrial Tribunal being able to continue fairly to adjudicate on her case, and accordingly, I think possibly also on the basis of some advice she may have been given, she did not appear at the resumed hearing. As she rightly says not surprisingly, the Tribunal reached their unanimous decision.

So far as the legal principle is concerned, it is plain that an Industrial Tribunal is entitled during the course of a hearing, where appropriate, to give a preliminary indication of its view, in order to save time, or promote the conclusion of a settlement agreement between the parties.

However, it is also plain that that discretion has to be exercised cautiously. A tentative expression of opinion should not be allowed to become an expression of concluded decision at a stage in the proceedings where evidence was yet to be received and arguments to be heard. In our judgement it is plain from the material provided by the Industrial Tribunal Chairman himself, to which I have alluded, and which of course has been provided to Mrs Mist in this case, that the Tribunal did not err in law in the way in which they responded to the request for a preliminary indication from Mr Orchard.

We have no reason to believe that the Tribunal gave other than a tentative decision as they indicated in the material which I have read, and that such indication was not treated by them and not understood by them, that is the Tribunal, to have been a concluded decision. Indeed they themselves, were aware that the Applicants own case had not yet been concluded, although the Applicant herself had given evidence and had accepted apparently in the Tribunal that she had signed the letter of resignation.

Whatever dispute there may be between Mrs Mist and Mr Orchard, it seems to us that on the basis of the material to which I have referred, there is indeed no real point in this appeal. It could not succeed because of the material to which I have referred, and accordingly it should not proceed to a full hearing.

That said, I wish to make it absolutely plain, so far as this Tribunal is concerned having regard to the decision of the Industrial Tribunal, that there is no suggestion that Mrs Mist in any way behaved improperly in the course of her employment with her employers. There was a shortfall of monies from the office apparently, she was interviewed in relation to this, and no matter has been proceeded with against her. There is every reason to believe that there is an innocent explanation for the absence of the money. She had worked for that Company for very many years and risen, through her own effort, to a responsible position of administration manager and branch accountant, and it is in our view most regrettable that her employment came to an end as it did. That said, that is not a matter for us to investigate any further. It seems to us that there is no merit in an appeal against this Tribunal's decision and accordingly we refuse a full hearing and dismiss the appeal.