Appleyard v G H Caudwell Ltd [1994] UKEAT 786_92_1602

EAT
Appleyard v G H Caudwell Ltd
[1994] UKEAT 786_92_1602 · 1994-02-16

JUDGE LEVY QC:

This is an application for costs where both parties are content for the matter to be heard by way of written submissions. The application for costs arises in this way. There was hearing on 14 July 1992, before the Industrial Tribunal sitting at Lincoln where the Chairman was Mr A H Brown. At the end of the hearing, according to an extract from a hand-written note he said:
"We are unanimous that the dismissal was procedurally defective and unfair we all take the view if dismissal handled procedurally fair, the prospect would have been that the Applicant would would not have been not dismissal. However it is likely that had he not been dismissed on that occasion the issue would have arisen again at another moment of the need for farm overtime working, it might have been later that year but would have arisen within the ensuing six months."
The problem for the employer and for the employee which led to the employee's dismissal was that he, the employee, was being required to work on Sundays and he did not want to. When the decision of the Industrial Tribunal was promulgated on 23 September 1992, there was no passage in the Full Reasons reflecting the second sentence of the hand-written note. That gave difficulties to the employee for two reasons. First of all, he did not know on what basis he was to negotiate a settlement and secondly, he had to put in his notice of appeal timeously if he was not to be in breach of the Rules.Accordingly, on 23 October 1992 his solicitors wrote to the Industrial Tribunal setting out the problem and on 30 October 1992, sent in the notice of appeal. The Tribunal replied on 31 October 1992 and the Respondents' Answer came in on 7 December 1992. The Respondents' Answer says that the notice of appeal raised an issue that was not in the decision itself. This is a reference to the handwritten note to which we have referred.In the course of 1993, the employee was in difficulties. He did not know on what basis he was to settle his appeal; he did not know whether the appeal should go forward and there was a series of letters between the parties and this Appeal Tribunal consisting of 12 letters which are before us today. They are in our bundle in this order p.24, 21, 23, 20, 22, 18, 17, 16, 15, 13, 2 & 1.If parties wish the matter to be heard by way of written submissions, it would be helpful if a correspondence bundle in chronological order had been prepared for the use of the Tribunal. That said, we have all read the correspondence. We are satisfied that the reason for the unhappy predicament of the employee arose from the words of the Chairman which are in the note and neither side is to blame for the costs which have been incurred.In those circumstances we propose to make no award for costs arising from the withdrawal of the appeal by the employee.