Michelin Tyre Plc v Pearson [1995] UKEAT 758_94_1603

EAT

Michelin Tyre Plc v Pearson

[1995] UKEAT 758_94_1603 · 1995-03-16

MR JUSTICE BUCKLEY : This matter comes to us by way of Appeal from a Decision or an apparent Decision of the Tribunal dated 7th June 1994.

The Decision is headed in the usual way Full Reasons. By those reasons the Tribunal purported to award the applicant £734.00, representing two weeks net pay. That was to compensate him on his claim.

The applicant had claimed he was wrongfully dismissed, the Tribunal found that there was a genuine redundancy and in short, they awarded two weeks pay on the basis according to their reasons that there had not been consultation before the notification of redundancy. They found that everything else was fair and proper, including the consultation that followed. They also found that, had there been, earlier consultation it would not have affected the outcome in any way. But they did feel that it would probably have added a couple of weeks to the process and hence their conclusion.

The employer appeals in unusual circumstances, which are very briefly these; at the end of the hearing the Chairman announced the Decision of the Tribunal and gave some reasons. The reasons he gave were broadly in line with the subsequent written reasons, to which we have referred, save that they did not touch on the question of the fortnights pay. They simply indicated that the redundancy process was proper, albeit, that the redundancy was announced before consultation. He indicated that the applicant would still have been dismissed, and that the dismissal was fair. And no mention of any award was made.

Mr Knowles, who has appeared for the employee, Mr Pearson, before our Tribunal, very helpfully produced a note of the oral decision and reasons that he had taken at the time. We have drawn on that in saying what we have about the Chairman's announcement. Mr Knowles very fairly and properly, commented to us that having heard the announcement he and Mr Pearson left assuming and believing that they lost. For what it is worth, so did the local paper that duly reported the matter. And Mr Griffiths for the employer, who was not at the Tribunal has no basis to doubt any of that and does not seek to do so in any way.

It seems to us that the only conclusion we can draw is that there was an oral decision by the Tribunal at the end of the hearing.

The effect of it was that the application was dismissed. No money was mentioned. The question of the two weeks pay, was not one that was mentioned.

That brings us to paragraph 8 of the subsequent written reasons, which we quote in full:

"8. The Chairman per incurium , in delivering the oral decision of 9 May 1994, was guilty of an error in that he said that the dismissal was fair; on the contrary, because of the lack of consultation before the dismissal, the dismissal was unfair solely on the grounds of procedure i.e. lack of consultation. Hence, the applicant is entitled to compensation as stated above. [The above is the reference to the reasons for their arriving at that decision] If, however, any of the parties desire a review of the oral decision such a review will be granted. If no such application is received, within 14 days of the promulgation of the decision, the respondent should pay the applicant the appropriate sum: two weeks net pay at £367. The Recoupment Regulations apply to such sum."

Mr Knowles told us, that when he received these reasons he thought for a minute that it was a different case. And to an extent we can understand that. The reference to the two weeks pay and the award in his favour was on any view a complete volte face from the Decision that had been given almost a month earlier.

Well that brings us to the basis of the Appeal. Mr Griffiths for the employer has argued that a decision of an Industrial Tribunal can be an oral decision, given at the end of the hearing. He has sighted authority Arthur Guiness Son & Co (GB) Ltd - v - Green

(1989) IRLR 288

. We do not think that there is any doubt on that score. There clearly can be an oral decision. It must always be necessary to look at what is said by the Chairman at the end of the hearing and see whether it does amount to a decision or whether it is purely some interim comment which is going to be incorporated in the formal decision when that is produced. But here, on what we are told and accept, there can be little doubt that this was a decision. The result was announced fairly clearly and quite obviously from Mr Knowles's note some, most in fact, of the supporting reasons were actually given. And indeed, paragraph 8 of the written reasons do refer to:

" ... in delivering the oral decision of 9 May 1994, [the Chairman] was guilty of an error ..."

So we start from the basis that there was an oral decision. It was clearly to the effect that the application failed, and no award was made. What then is the jurisdiction of the Tribunal in so far as their later reasons are concerned, are they entitled, either because in some inexplicable way they have made such a fundamental mistake as to decide the thing the wrong way or because they have had second thoughts or for whatever reason, to change their decision in their written reasons.

It seems to us that that would be an extraordinary state of affairs, if it were to be the case and we are quite satisfied that it is not. Once a decision of any tribunal or court is made that is the end of the matter. The Tribunal has done its task. Now, there are of course, some exceptions to that, there is the well-known Slip Rule, whereby if a obvious typing error or slip of the tongue or pen, for that matter, has been made, it can be corrected in appropriate circumstances. But there is no rule or permissive doctrine, so far as, we are aware, that enables a Tribunal to change, in any fundamental way, the decision that it has arrived at and announced to the parties. The only way that can be brought about to our knowledge, is by way of Appeal subject to specific regulations or rules that may govern the proceedings. Now Industrial Tribunal proceeding are of course governed by The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. These rules and regulations include a power of review. It is unnecessary to go into that in detail, but the circumstances, in which a tribunal may review a decision are closely described. The fact that it is necessary to provide for that expressly and to detail the circumstances, supports or is indicative of the general rule that we have identified.

We can see nothing in the power of review under Rule 11 of Schedule 1 that would enable a Tribunal simply to change a decision already made in the fundamental way that this one was.

At the very least, if it was desired to change a decision, and we are not giving a fair wind to any power to make the sort change that arose in this case, but some change that was required, in the interests of justice, the Tribunal has got a power of its own motion. But it can only use it, according to Rule 11.3, if within fourteen days of the end of the hearing it gives notice to the parties so that, of course, they can come along and be heard. So that is the very least that would be required. Now that did not happen here.

It is apparent from paragraph 8 that the offer of a review was extended, but of course, that was after the oral decision had been reviewed (if that is that right word), certainly altered. The very least that should have happened here is that the Tribunal should have contacted the parties within the 14 days under Rule 11, indicated that something had gone wrong, invited them back and reviewed in the proper manner.

We cannot construe what happened here as per incuriam as paragraph 8 suggests. By per incuriam we do not understand that in the technical sense of a lawyers understanding. We read that in context as simply meaning, "by mistake" or "mistakenly". We find it very hard to fathom how a Chairman in announcing or giving his decision at the end of a hearing, can actually give it the wrong way round. Maybe one thing to muddle up the parties but in context one could easily see that applicant for respondent had been stated in error and the sense of the decision and the reasons would make that plain. But we find it difficult to fathom how if the intention of the tribunal was to award money, they give an oral decision which does not award money, does not even talk about money and in effect says that the dismissal was fair when it was in their view unfair.

Not only that, but there were two other members of this tribunal who would have heard the decision announced and again, if what they had decided was to make a monetary award, it is hard to understand that they would have allowed the Chairman to bring the proceedings to a close without any reference to what they had all decided.

We have to say, we make no finding on this, but it does look very much on the face of what has happened here, as though the Tribunal had second thoughts or genuinely changed their mind. We stress that we are not making any finding on that, we only make that point because it is relevant and indicates the sense of grievance that either or both of the parties would reasonably harbour in the circumstances. Because, it will appear to the parties as though there has simply been a change of mind, they have had no opportunity to make any further submissions or address any new thought that has come into the Tribunal's mind and the matter has simply been presented to them as a fait accompli. Well that obviously offends fairness quite apart from the rules and any other legal principles.

So what is best to be done? It follows from what we have said that we do not believe that this Tribunal had jurisdiction or power to change the decision that they had made. On any view we hold that they had no power to do it the way they did, but we do not resile from saying that they had no power to do it. They had made their decision and this change was not one that could be corrected, we believe, by review or under slip rule law or by re-call. It was a fundamental change of the actual result.

One way of dealing with this matter, would be to declare that that was the position in law and to strike out paragraphs 7 and 8 of the Reasons. At least in so far, as they differ from the original decision.

We have considered that and that was one course that Mr Griffiths identified for us.

We have decided though that this matter has gone sufficiently wrong unfortunately, that simply to do that would be unjust and would generate a very real sense of grievance. The reason for that is that Mr Pearson has been told in the formal written reasons, albeit not at first in the oral reasons, that he has won to a limited extent. He has on the face of it been awarded money by the written reasons and an explanation supporting them has been given to him. So that we now all know that at the end of the day at least, the intention of this Tribunal was to give him that money. For us now, simply as a matter of applying the legal rules to the situation to tell him that that is not going to happen, and not only is he going to have taken away from him that which he has apparently been given, but that the final intention of the Tribunal is also going to be over-ruled. We think that would be a manifest injustice. An injustice to him, which would stem from the mistake that was made by the original Tribunal.

Consequently, we feel that the only fair thing to do here is to remit this matter to be re-heard by a new Tribunal.

We are conscious that there is not a great sum at stake, albeit, no doubt it is not an insignificant sum to Mr Pearson and indeed it would not be to most of us as individuals. But in the scheme of things it is not a large sum, whether this matter can be compromised in some way without the necessity for a further full hearing, we do not know, we would like to think that perhaps it could, but that is a matter for the parties. The important point of principle we have been asked to decide, we have, and that has led us to the conclusion given.

So we remit the matter.