Hewitt v Thorn (UK) Ltd [1995] UKEAT 954_95_0812

EAT

Hewitt v Thorn (UK) Ltd

[1995] UKEAT 954_95_0812 · 1995-12-08

MR JUSTICE KEENE : This is a preliminary hearing for the Appellant to show that there is an arguable point of law in this appeal so that this matter should be allowed to proceed to a full hearing before this Appeal Tribunal.

This appeal arises out of what was a preliminary hearing held by an industrial tribunal to determine whether it had jurisdiction to deal with the application made to it. The preliminary point about jurisdiction arose because it was alleged that agreement had been reached through the services of ACAS to settle the industrial tribunal proceedings, which had been brought by the Appellant for unfair dismissal. The Appellant denied that those proceedings had ever been settled on his behalf. According to the Industrial Tribunal's Reasons what happened was this: after the application had originally been made and the Notice of Appearance entered by the Respondent, there were several adjournments, and in particular, an adjournment at the request apparently of both parties on or about 7th February 1994, the day before the Tribunal hearing was supposed to take place. For what it is worth the Tribunal hearing was postponed on the basis that it was understood that a settlement had been reached. It is a fact that a COT3 form was subsequently signed by the Respondent dated 15th March 1994, but the Appellant was unwilling subsequently to sign the form, and never indeed did so. He has subsequently denied, as he did before the Tribunal, that any agreement had been entered into on his behalf.

The problem which arose was essentially this. Negotiations had been conducted apparently on behalf of the Appellant by a Mr Hellyer who was a full-time official of the AEEU. There was also an involvement on the part of ACAS through a Mr Morris who was a conciliation officer with that body. The Tribunal found in effect that Mr Hellyer had reached a settlement with the Respondent in this matter on behalf of the Appellant. When this matter came before the Tribunal for the preliminary hearing as to jurisdiction, Mr Hewitt gave evidence. According the Tribunal's Reasons he said this:

"... although he had not wanted to be assisted by Mr Hellyer, the area official, he had agreed that he could negotiate on his behalf; that although there were some discussions with Mr Hellyer on or about 7 February, Mr Hewitt had in effect never agreed to a final agreement; .... and that therefore he is not bound by the terms of the alleged agreement ..."

Evidence was heard by the Tribunal from Mr Hellyer who made it clear to them that he was in no doubt whatsoever that Mr Hewitt had agreed to the terms of the COT3 on 7th February. Mr Morris of ACAS also gave evidence that he had no doubt whatsoever that those acting on behalf of both sides, including Mr Hellyer on behalf of the Appellant, had reached an agreement on 7th February which while it was to be put into writing had nonetheless been reached irrespective of it being put into writing and signed. The Tribunal found as a fact that Mr Hellyer was appointed by Mr Hewitt as a Union official to negotiate on his behalf with the Respondent through ACAS and they went on to conclude that at all times Mr Hellyer therefore had ostensible authority to negotiate on behalf of the Appellant and to bind him in terms of any agreement reached. They also found that he did not dismiss Mr Hellyer as his agent before agreement had been reached, nor did he notify ACAS that any such dismissal had occurred. Therefore they found that:

"There is no doubt whatsoever that an agreement had well and truly been made by Mr Hellyer on behalf of Mr Hewitt long before 19 April."

The Tribunal in this decision set out the relevant statutory provisions, in particular Section 140 of the Employment Protection (Consolidation) Act 1978 and noted that where ACAS has been involved and an agreement has been reached, there is an exception to the provision whereby an agreement cannot prevent a party from bringing proceedings before an industrial tribunal. They concluded that, given the ostensible authority that Mr Hellyer had, the Appellant was bound by the agreement and that the other party, that is to say the Respondent, was entitled to assume that the agent negotiating on his behalf did have that authority. Consequently the Tribunal's ultimate conclusion was that Mr Hewitt was bound by that which his representative had agreed to on his behalf, unless he had made it clear by that moment that that authority did not exist and that had not occurred. Consequently they found that they did not have jurisdiction to hear the complaint about unfair dismissal.

Before us this afternoon, Mr Burrows who is acting now on behalf of the Appellant makes essentially two points. First of all, it is said that Mr Hewitt did not in fact give Mr Hellyer permission to act as his representative and to enter into any binding agreement on his behalf. He draws our attention to the fact that on the originating application form in this matter, that is to say on the IT1 form, it is Mr Burrows who is named as the representative. Therefore he says Mr Hellyer did not have the authority to make the deal with the employer Respondent contrary to the finding of the Industrial Tribunal.

The second point which is made is that Mr Hewitt did not sign the COT3 and that therefore the agreement in any event is not binding. We can take the second of those two points first. If it be the case that an agreement was reached orally, and that the fact that it was to be put into writing was not a precondition to agreement but was merely a subsequent step which was to be taken, then the agreement is nonetheless valid. An agreement may be made orally just as it may be made in writing. The fact that the written form COT3 was never signed does not mean that there was never any agreement. The Tribunal in our view was entitled to take the view that there was an agreement here, even if there was never any signed COT3 form on behalf of the Appellant.

We turn therefore to the main point made by Mr Burrows this afternoon, which is that Mr Hellyer did not have authority to act as the Appellant's representative in these negotiations and in the settlement. The problem from the Appellant's point of view with this argument is first that the Tribunal in passages to which we have already referred has spelt out in terms that the Appellant gave evidence before them that he had agreed that Mr Hellyer could negotiate on his behalf, and secondly, the Tribunal finds as a fact that Mr Hellyer was appointed by the Appellant to negotiate on his behalf with the Respondent through ACAS. The conclusion which the Tribunal reached that Mr Hellyer therefore had ostensible authority to negotiate and to reach a settlement is a conclusion which follows very naturally from those findings of fact. We in this Appeal Tribunal have a limited jurisdiction. We are not a tribunal of fact and we cannot interfere with the findings of fact reached by the Tribunal below, unless the conclusions they have reached are so perverse and unreasonable that no reasonable tribunal could properly have arrived at them. We have nothing before us which indicates that this conclusion arrived at by the Tribunal was perverse in that sense. It has to follow, therefore, that there is no error of law in the conclusion reached by the Tribunal that Mr Hellyer had ostensible authority to negotiate on behalf of the Appellant and to reach the settlement which he did. The position is that while that ostensible authority lasted the Respondent was entitled to assume that a binding deal could be done by Mr Hellyer on behalf of the Appellant.

We note that the Tribunal below when they arrived at their conclusions did express what seems to be some degree of unhappiness that this was the end result. We have in mind the fact that when they found Mr Hewitt was bound by Mr Hellyer's settlement, they said that "unfortunately perhaps" Mr Hewitt was so bound. That may well be. But we have to apply the law on these matters and we cannot allow sentiment to interfere with the judgment at which we have to arrive. The Tribunal below did point out that if in fact Mr Hellyer had entered into an agreement on behalf of Mr Hewitt without Mr Hewitt in fact authorising him, then there would be a remedy which the Appellant would have against the Union in this respect, and possibly against Mr Hellyer in personal terms. We are not encouraging such action; we are merely pointing out that that is the proper legal structure if the Union or one of its officials has purported to act on behalf of a member when it did not have authority to do so.

The other point which perhaps we should make in an attempt to assist the Appellant is simply this: before us, Mr Hewitt has suggested that the Industrial Tribunal got it wrong in recording his statement that he had agreed that Mr Hellyer could negotiate on his behalf. If that is right, then of course there is always the possibility of a party applying to the Industrial Tribunal for it to review its decision. We are not saying that that is justified on the merits of this case because we are not the Tribunal of fact, but if a party does believe that an industrial tribunal has gone wrong on the facts, has misunderstood the facts, and that in the interests of justice it should review its decision, then the proper approach is to seek a review of its decision. There is a time limit for applying for such a review, and that time limit has now passed. There is nonetheless a power which the tribunal has to extend time for such an application. We make it clear that we are not encouraging such an application for a review to the Industrial Tribunal, because it may not be warranted on the merits. We can express no opinion on that, but that seems to us to be the appropriate procedure rather than by way of an appeal to this Appeal Tribunal. In all the circumstances we have no alternative but to conclude that there is no arguable point of law raised on this appeal and for those reasons this appeal must be dismissed.