Lavery v Iceland Frozen Foods Plc [1995] UKEAT 408_95_1005

EAT
Lavery v Iceland Frozen Foods Plc
[1995] UKEAT 408_95_1005 · 1995-05-10

JUDGE HULL QC:

This is an interlocutory appeal to us by Mr Michael Lavery, who is a young man of 19. He was employed by the Respondents, Iceland Frozen Foods Plc, on a part-time basis.His employment began on 8 October 1993, and he says that he was dismissed on 28 July 1994. He issued his application to the Industrial Tribunal complaining of several matters. First of all, he said that he had been unfairly dismissed and he said that he was dismissed because he had made complaints regarding a matter of health and safety, and that his dismissal was caused by that. In those circumstances, of course, he is not required to serve the two years in employment before he brings a complaint. He made a similar complaint to the effect that he had made an application for arrears of wages which he said were owed to him. That too was the cause of his dismissal, being an inadmissible cause, and therefore he was entitled to assert his claim, notwithstanding that he had only been employed for a period of about nine months.He also complained to the Industrial Tribunal about deductions, those being the same ones that he had been referring to, under the Wages Act, and he also wanted money in respect of the failure to give him notice, in effect damages under Section 131 of the Act. Those were his complaints to the Tribunal.There was an Answer, in form IT3, by the employers and among other things, they denied that he had been dismissed and they made other averments. It is quite clear that credit is very much in issue and that they are giving Mr Lavery the lie on various matters, and suggesting that he apparently struck himself and assaulted one of their managers, the Deputy Manager of the store.We do not need to go into all that. The point of this appeal will become apparent in a moment. What happened was that the Tribunal wrote on 7 November 1994 to a Miss Ardill. Miss Ardill was at the Islington Law Centre and they had taken up the case on behalf of Mr Lavery. The letter said as follows:
"1 The Chairman who has been dealing with this case has considered the documents and directed that there should be a Preliminary Hearing.

(s) :

WHETHER CLAIM CAN BE BROUGHT AFTER 9 MONTHS

EMPLOYMENT, WITHIN SECTIONS 60A AND 57A OF THE

EMPLOYMENT PROTECTION (CONSOLIDATION) ACT 1978".It appears to us, first of all, as we have remarked in the course of argument, that that is a thoroughly ambiguous notice. Preliminary Hearings are to determine matters other than matters of merit which, on one way of deciding them, could prevent the application proceeding at all, because they would show that it was incompetent.It appears at a first reading of this letter that what the Tribunal has in mind is a point of law; whether it is possible to bring this complaint, after a mere nine months, within Sections 60A and 57A of the Employment Protection (Consolidation) Act . In other words, whether the averments made by the Applicant in his application can be brought within those sections. That would appear to be what is meant and whether, as a matter of law therefore, the application can proceed. It appears however, from what happened in due course, that the Tribunal formed the view that they should embark on a much wider enquiry. There was a notice of hearing sent (we have not seen it) and it appears to have indicated in the normal way that any witnesses relied on should be brought to the hearing. The hearing took place, and the decision of the Industrial Tribunal is recorded at pages 4 and 5 of our bundle.Miss Ardill, who is described as a trainee Solicitor, appeared before the Tribunal, but she did not have with her Mr Lavery or any other oral evidence and the Industrial Tribunal felt unable to proceed because of the way they saw the matter, and made an order for £250 costs which, of course, can only be made if there has been vexatious behaviour or other unreasonable behaviour on the part of a party.What the Tribunal said is as follows:
"1 The Applicant's representative had told him not to attend as she believed the preliminary point was just for legal argument and not for evidence.
2 The Tribunal considered that the question of whether the Applicant had been dismissed in circumstances falling within either section 57A or section 60A of the Employment Protection (Consolidation) Act 1978 and therefore nine months' employment was sufficient, could not properly be dealt with without evidence from the Applicant and therefore accepted that the case should be adjourned.3 The adjournment was caused by the error of the Applicant's representative in not arranging his attendance ....".And that is the way they put it.So it is clear that what they were intent on considering was the question whether the Applicant had been dismissed, that being a matter in issue, in circumstances falling within either Section 57A or 60A of the Employment Protection (Consolidation) Act . It is said to us, on this appeal, that that is something quite different from what was envisaged.Clearly, if the Tribunal were embarking on that enquiry, it could be said that they were embarking on something which went straight to the merits of the case. Preliminary Hearings are not supposed to be related to merits. The question whether he had been dismissed would clearly involve hearing most of the evidence in the case and, in particular, saying whether they believed the Applicant or the Respondents' representatives.Then the question whether he had been dismissed, in circumstances falling within section 57A or section 60A, would mean looking into his complaints about wages. Was he making, in good faith, complaints in respect of wages or in respect of health and safety matters? Again, that would involve enquiring into the truthfulness of his evidence and looking into those matters. There would be very little left to try, apart from the question of compensation, when they had decided those matters.But we prefer to say, not that this hearing was incompetent in any way, but that it was far from clear on looking at the notification of 7 November 1994 that these were the matters that the Tribunal would be enquiring into and it appears to us that probably most people would say:
"No, they are not going to go into everything like that, they are looking into a point of law"
. It may be that a more experienced advocate than Miss Ardill might have insisted on agreeing with the other party and with the Tribunal exactly what was to be tried.This is a particularly vexed questions with Industrial Tribunals and, certainly, not the first time one has heard of misunderstandings along these lines. Indeed, they are not unknown in more formal litigation in the High Court and County Court. The Industrial Tribunal is under the additional difficulty that there are no pleadings. In, for example, High Court proceedings, it is often possible to say that the matters raised by paragraph 4 of the statement of claim should be tried as a preliminary issue; and then it is possible, by reading two sentences of paragraph 4, to see exactly what is in issue. The matter may be done fairly shortly, and conveniently.But when a preliminary issue is directed or a preliminary hearing is in front of an Industrial Tribunal, particular care has to be taken to see that it is accurately defined. Is the Tribunal going to enquire into the question whether dismissal has actually taken place, as here? Is it, as in so many cases, going to enquire not merely into the question whether dismissal has taken place, but whether the application is brought within three months of the dismissal, and whether, if not, it was reasonably practicable to bring the complaint within three months?Those are the sort of matters which arise, and it behoves a Chairman of the Industrial Tribunal, in directing issues, to make sure that there is no doubt or ambiguity whatever in the issue which is directed to be tried. Here, unhappily, we do not think that was done. We think that this was rather hastily and ambiguously stated and we do not think that Miss Ardill was in any way to blame for the misunderstanding which arose between her and the Tribunal which attempted to conduct the Preliminary Hearing.In those circumstances, it is quite impossible for us to say that Mr Lavery, whether through his advocate or otherwise, took an unreasonable step or unreasonably neglected to take the correct step.It appears to us that, at most, it can be said that there was a misunderstanding and if we had to say so, we would think that it was the fault of the Tribunal rather than of Miss Ardill. We do not need to go as far as that or to blame anybody for what has happened, but we are quite sure is that this was not an appropriate case for an award of costs. Indeed, the Tribunal had, in the circumstances, no jurisdiction to make an order for costs against the Applicant. It should not have been made. It is very unfortunate that there was this misunderstanding but that does not reflect on Mr Lavery or on his advocate.In those circumstances, this appeal must be allowed.