Mobbs v Nuclear Electric Plc [1996] UKEAT 1182_95_0506

EAT
Mobbs v Nuclear Electric Plc
[1996] UKEAT 1182_95_0506 · 1996-06-05

JUDGE J HULL QC :

Mrs Sandra Mobbs worked as a part-time catering assistant at the premises of the Respondents, Nuclear Electric Plc, from 1978 until 31 December 1994. At first she worked for 8 hours per week, but for the last 8 or 9 years she worked for about 28 hours per week.On 4 January 1995 she applied to the Industrial Tribunal for compensation and redundancy pay, alleging unfair dismissal, and complaining of discrimination on the ground of her sex; she sought remedies under The Equal Pay Act and other statutory provisions. The Respondents, by their Notice of Appearance dated 7 March 1995, averred that Mrs Mobbs was not an employee; they stated expressly in their letter of 3 April 1995 that she was self-employed. They denied the averments of discrimination.A Chairman of Industrial Tribunals, Mr P.J. Russell, sat alone on 24 August 1995 at Manchester to conduct a preliminary hearing to determine whether the Applicant was an employee of the Respondents within section 153 of the Employment Protection (Consolidation) Act 1978 . The Applicant was represented by a trade union officer and the Respondents by Mr Carr of counsel. The Chairman heard the evidence of the Applicant and of two witnesses called by the Respondents. Where there was a conflict of evidence he preferred the evidence of the Respondents' witnesses.After considering a substantial number of matters, some of which supported the contention that the Applicant was an employee, and others of which contraverted it, the Chairman concluded:
"8. ... I have to weigh up the conflicting factors and to have regard to the broad picture. Having done so, I am left in no doubt that the applicant was not an employee ..."
By her Notice of Appeal dated 7 April 1995 the Applicant complained that the Chairman had made errors of law and that the decision was perverse. She then, in an amendment signed by Mr O'Dempsey of counsel, set out fresh grounds of appeal none of which, as we understand, was the subject of any submission to the Chairman. Among these new grounds was paragraph 5:
"5. The Tribunal erred in law in that the learned chairman had no power to determine the issue of whether the Appellant was an employee ... sitting alone."
Since this averment went to jurisdiction, we decided to hear argument upon it at the outset of the hearing.Under section 128(2A) of The Employment Protection (Consolidation) Act 1978 , inserted by The Trade Union Reform and Employment Rights Act 1993 , proceedings before an Industrial Tribunal shall be heard by the Chairman and two industrial members, subject to the following provisions of the section. Under subsections (2B) and (2C), also inserted by the Act of 1993, a large number of proceedings are to be tried by the Chairman alone unless, pursuant to subsection (2F), a Chairman decides that they are to be heard by a full Tribunal. None of the proceedings referred to in subsection (2C) includes the proceedings before the Chairman in the present case.Section 128(5) provides that Regulations made under Schedule 9 to the Act may provide that in such circumstances as the regulations may specify any act required or authorised by the regulations to be done by an Industrial Tribunal may be done by a Chairman.The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 were made under Schedule 9 to the Act of 1978. Regulation 8 provides, subject to matters which are not material to the present case, that the Rules of Procedure ("the Rules") in Schedule 1 to the Regulations shall apply in relation to all proceedings before an Industrial Tribunal.Rule 8(1) of the rules provides that any "hearing" of an Originating Application shall be heard by an Industrial Tribunal composed in accordance with Section 128(2A), (2B) and (2C) of the 1978 Act. Regulation 2 states that "hearing" means a sitting of an Industrial Tribunal duly constituted for the purpose of receiving evidence , hearing addresses and witnesses , or doing anything lawfully requisite to enable the Tribunal to reach a decision on any question (we have underlined words which appear particularly important).How did Mr Russell have jurisdiction to hold the preliminary hearing and reach the decision which he did? Mr Carr, who appeared before us for the Respondents, said that the matter was perfectly simple: under rule 13(8):
"13(8) Any act required or authorised by these rules to be done by a tribunal may be done by a chairman except - (a) the hearing of an originating application under rule 8; (b) an act required or authorised to be so done by rule 9 or 10 which the rule implies is to be done by the tribunal which is hearing or heard the originating application; (c) the review of a decision under rule 11(1), and the confirmation, variation or revocation of a decision, and ordering of a re-hearing, under rule 11(6)."
By Rule 6(1), as amended,
"6(1) A tribunal may at any time before the hearing of an originating application, on the application of a party made by notice to the Secretary or of its own motion, [hear and] determine any issue relating to the entitlement of any party to bring or contest the proceedings to which the originating application relates."
The words "hear and" were inserted by SI No.536 of 1994.If it were intended that the Chairman should not conduct a "hearing" under rule 6(1) then, said Mr Carr, one would inevitably find a further subparagraph (d) to rule 13(8) saying precisely that.Mr O'Dempsey submitted that Mr Carr had failed to deal with the provisions of rule 6(2):
"6(2) A tribunal shall not determine such an issue unless the Secretary has sent notice to each of the parties giving them an opportunity to submit representations in writing and to advance oral argument before the tribunal."
That shows, said Mr O'Dempsey, that the Industrial Tribunal is engaged, under section 6(1) in an inquiry to be determined by the reading of representations or the reception of oral argument: there is no provision for an opportunity to adduce evidence, call or cross-examine witnesses "or do anything lawfully requisite to enable the Tribunal to reach a decision", to quote from the definition of a "hearing" in regulation 2. The insertion of the words "hear and" in regulation 6(1) do not affect the matter; it is clear from rule 6(2) that this does not mean that the Chairman is to conduct a "hearing" - the context "otherwise requires" within regulation 2. If the Industrial Tribunal required to hear oral evidence, and decide contentious issues of fact, then it was conducting a hearing of the application under rule 8(1) and not determining an issue within rule 6(1); accordingly it must sit with the Chairman and two industrial members, and was not on this occasion duly constituted.Mr O'Dempsey submitted that the fundamental concept of the Act and the Regulations was that the decision of contested facts should be the province of the "industrial jury" as the full panel of the Industrial Tribunal has come to be known. He pointed out that if the Chairman had power, sitting alone, to decide any issue relating to a party's entitlement to bring or contest proceedings, then that would mean that the whole case, however substantial the dispute over facts, would often be tried by the Chairman. Thus a decision, on contested facts, of a claim based on constructive dismissal would probably dispose of the whole case without the industrial members ever being involved. Such a decision might well involve a substantial hearing, but it would "decide an issue relating to the entitlement of the Applicant to bring the case".We have come to the conclusion that Mr O'Dempsey's submissions are correct. If it were intended that the Chairman should be entitled to conduct a preliminary hearing which amounts to a trial under rule 6(1), then we regard it as incredible that rule 6(2) provides only for the parties to be given an opportunity to submit representations in writing and to advance oral submissions. It would self-evidently be necessary for them to be given an opportunity to adduce evidence, put in documents, cross-examine witnesses and otherwise assist the Tribunal to do "anything lawfully requisite to enable the Tribunal to reach a decision". In particular, we accept Mr O'Dempsey's submission that what happened in this case and, we are told, frequently occurs, is contrary to the accepted concept that contested issues of fact which are determinative of the application should be tried by the industrial jury, and that the rules should not be construed so as to derogate from the terms of the Act unless it is plainly necessary to do so.Mr Carr submitted that rule 6(2) is dealing with a quite different matter. The representations and oral argument referred to are an opportunity for the parties to persuade the Industrial Tribunal to hold or, as the case may be, not to hold, a hearing under rule 6(1). With respect, we regard this as a strained and incorrect construction of the rules. On its true construction the representations in writing and the oral submissions are invited for the purposes of assisting the Industrial Tribunal in making its determination under rule 6(1).In our judgment, rule 6(1) enables the Chairman, sitting alone, to determine any issue relating to the entitlement of any party to bring or contest the proceedings where he can properly do so on the basis of written representations and/or oral submissions . Such determination should therefore be limited to points which involve no substantial issues of fact and will frequently if not usually be limited to points of law; including, of course, the construction of documents.We therefore allow the appeal and order that the entire application be remitted for the decision of an Industrial Tribunal, with of course a different Chairman, and with two industrial members.