Freeman Dawson & Co Ltd v Davis [1996] UKEAT 487_95_0307

EAT
Freeman Dawson & Co Ltd v Davis
[1996] UKEAT 487_95_0307 · 1996-07-03

JUDGE J HULL QC:

This is an appeal to us by employers, Freeman Dawson & Co Ltd of High Wycombe, against a decision of the Industrial Tribunal sitting at Reading as long ago as 16 July 1993, under the chairmanship of Mr Robjant, sitting with two industrial members.That Tribunal held that the Respondent to the appeal, Mr Richard Davis, who had been employed as what was called a Remedial Technician by the employers, had been unfairly dismissed and awarded him compensation in the total sum of £8,519.22. The decision was promulgated on 30 July and this appeal began on 2 September 1993 with a Notice of Appeal which has since been amended.We are concerned at the moment with a point which we directed, by the consent of the parties, should be tried as a preliminary matter, before we considered the merits of the appeal. It arises in this way.The application was made when Mr Davis said that he had been dismissed for redundancy. He was dismissed on 25 November 1992 and the Respondents were content to say that it was a case of redundancy, but his complaint to the Industrial Tribunal, which was made on 3 February 1993, was that he had been unfairly selected for redundancy and that he wanted compensation on that basis.So (as I say) the Industrial Tribunal sat to hear that matter and I will not for the moment refer to the decision at length, but after setting out a number of facts which were not in dispute, they dealt with the merits of the matter. They found that there was a redundancy situation, but they found, having heard the evidence, that at no stage had the employers consulted Mr Davis, or considered with Mr Davis whether there were other tasks he could perform.Mr Davis told the Tribunal that he had a range of skills in addition to the skill of being a technician in which he was employed, and he could have done the job of a man who was taken on fairly shortly after his dismissal, a Mr Colin Patrick. That was disputed on behalf of the employers. They said matters were otherwise but the Industrial Tribunal found that they had no direct evidence; no satisfactory evidence; that Mr Davis was incapable of doing the work which he said he was capable of doing.They then proceeded to consider the question of compensation. As I say, they found that the dismissal was unfair for procedural reasons; failure of consultation; and they went on to consider compensation and they awarded compensation on what has been referred to (I do not know whether it is accurate or not, but it is a convenient way of referring to it) as an indemnity basis, that is the 100 per cent basis. The Applicant was entitled to compensation in respect of loss of earnings and matters of that sort, past and future, and they gave him compensation on that basis.The employers were represented by one of their Directors, Mr Sands, and they were not satisfied with the decision. Quite apart from appealing the decision to us, they applied to the Industrial Tribunal for a review of the case. Clearly, they had learned a very great deal from the hearing. They felt that they were in a position to adduce evidence to support Mr Sands' assertion that Mr Davis was not in truth capable of doing the job of the second man, Mr Colin Patrick, who had been taken on shortly after his dismissal, that he was only capable of doing his job as a Remedial Technician in timber proofing and that the man who was alleged in effect to be a substitute by the Applicant was much more than that. He could do a number of things which the Applicant could not. And they wished to adduce a quite formidable body of evidence to that effect.The Industrial Tribunal did, in fact, conduct a review. Their record of that is at page 15 of our bundle and as can be seen, having decided to grant the review, they heard a substantial amount of evidence which cast a completely different complexion, in their view, on the case. They found that (again I am paraphrasing and putting it very shortly) Mr Davis was not capable of doing all that he had claimed. They found that he was indeed not in a position to do all the work of Mr Colin Patrick and they accepted the new evidence which was led before them.As they put it themselves, in paragraph 11 of their decision at page 12, it told a wholly different story and they referred to their own decision and reached a completely contrary decision to the effect that consultation would have made no difference except for this; that it would (so to speak) have prolonged the employment for perhaps four weeks and they gave compensation on that basis. In other words, they thought, having heard the evidence, that the employers were confronted with a genuine redundancy situation and consultation would have made no difference. In those circumstances they awarded compensation of £799.64.Mr Davis was not satisfied with that decision and he appealed to this Employment Appeal Tribunal complaining of the decision and saying that the Industrial Tribunal should not have granted a review in the circumstances. He said, among other things, that the employers had had every opportunity to adduce all the evidence that they wanted to at the original hearing, and that they should not have been allowed what he called "a second bite of the cherry".This Tribunal could have been asked to decide, and could perhaps have decided (I am speaking purely hypothetically) the appeal on the basis simply of what constituted fresh evidence, or some other rule of law of that sort and could have said that the review should or should not have been allowed, after considering technical matters of that sort. But they did not. The essence of it was that the Industrial Tribunal had not done its job properly in the circumstances, or perhaps had been unable to do its job properly in the circumstances, they looked to see whether it had received all the evidence which it should have received.The appeal against the original decision which (as I say) was still pending, and is before us today, complained broadly that the Industrial Tribunal at the first hearing had overlooked or failed to give effect to the rules in the celebrated cases of Polkey and Sillifant and other cases which have explained and elaborated on those cases, and had failed in all the circumstances to ask themselves the proper question "What difference would it have made if there had been consultation, if the employers had proceeded procedurally fairly?" The Tribunal had simply not addressed those questions and therefore it was entirely justifiable to apply for the review and call the evidence which would enable the Tribunal to carry out that task.So this Tribunal, which was chaired on the occasion of the first appeal by His Honour Judge Smith QC, considered that matter too, as part of the employer's case. They considered the questions of evidence and pointed out what really does seem self-evident; that much of the evidence, if not all of it, was completely available if the employers had chosen to make it available at the first hearing and the reality of the situation was that Mr Sands, the Director, was so unfamiliar with the procedure that he had not adduced evidence which, no doubt, he should have done. But they also enquired into other matters in reaching their decision, which was that the review should simply not have taken place. The Industrial Tribunal should have refused to order the review.We have been referred to various passages in the decision. We ought to start at page 43 of our bundle where Judge Smith is giving the decision of our Tribunal on behalf of himself and the members. They say of the first decision:
" ... Their decision was described by Mr Kibling as `a model decision', and having considered it, we are of the same view. Obviously it is not appropriate or necessary for me to go anything like through this decision, in any detail. It is quite clear from sub-paragraph 4(k), at page 12 of the bundle, that the position of Mr Colin Patrick was considered ...."
They quote from the decision of the Tribunal:
"Then going to (l), it is clear, in our judgment, from sub-paragraph (l) and from sub-paragraph (n), that there was disputed evidence before the Tribunal as to whether or not Mr Davis could do the job that Mr Colin Patrick had been taken on to do every bit as well as Mr Colin Patrick. It is clear that issue was being joined at the original hearing before the Industrial Tribunal in relation to that matter. ..."
And they cite the passages from the IT1, the application to the Industrial Tribunal, and from the Answer, the IT3, to show that that was so, so far as those documents were concerned.Then, they are go on to the evidence:
"(1) In his evidence, Mr Sands said that Mr Colin Patrick had different skills to Mr Davis. He was better able to cope with the re-fitting work and was also capable of undertaking light building work. Mr Davis [again, this is per Mr Sands] had never undertaken anything other than the timber and damp proofing work. Mr Sands did not think that Mr Davis was capable of such work. Mr Sands claimed that Mr Davis had told him that he could not do heavy labouring work because of a bad back and a bad knee; but Mr Davis disputed this. ..."
And the learned Judge, on behalf our Tribunal, went through other parts of the evidence. He said at the bottom of page 44:
" ... Then going on, through this original decision which we have already described as a `model decision', having found in paragraph 9, that there was a failure to consult, and that:-
`There was not a shred of consultation'...

with regard to Mr Davis' redundancy."

They go on, at the top of page 45:
"The Industrial Tribunal then had to deal and did deal with this conflict of evidence between Mr Sands on the one hand, and Mr Davis on the other, in relation to the crucial matter, as to whether Mr Davis was able to do the job that Mr Patrick had been given in January. And they deal with it, in this way, in the second sentence of paragraph 11:-
`Although Mr Sands had made a series of assumptions about Mr Davis' capabilities, and the relative abilities of Mr Davis and his colleagues (and Mr Colin Patrick in particular), he was not able to produce any objective evidence to justify those conclusions.'We interpose to say [said Judge Smith] that that was entirely Mr Sands' own fault. The evidence was available to him and for some reason he did not call it. Then the Tribunal continues as follows:`His failure to undertake proper consultation meant that Mr Sands was not able to answer Mr Davis' basic point, that in Mr Davis' view, he was capable of undertaking the wider range of work that was now being undertaken by Mr Colin Patrick and which was clearly available at the time of Mr Davis' dismissal.'So there is the reasoning [said Judge Smith] of the Tribunal on its original hearing, and so it was that the Tribunal held that the dismissal was unfair."Now we come to the vital part of

Judge Smith's judgment, (I say Judge Smith, but it is, of course, given on behalf of all of us):

"... But in our judgment their decision, properly and reasonably construed, clearly involved two separate strands. I am not dealing at the moment with the quantum of compensation, which they deal with separately in paragraph 13. Their decision, in our judgment, clearly involved two separate strands, two separate elements, namely, firstly, that there had not been any consultation, so that there was a serious procedural defect in the decision-making process in relation to the dismissal. But secondly, in our judgment, the decision also incorporated a finding, that Mr Davis was able and willing to do the job which carried the same job description and the same rate of pay, although admittedly an extended range of skills, which the Respondents had given to and taken on Mr Colin Patrick as a full-time employee to do in January 1993. It is important, in our judgment, for that to be recognised. We detected from the way in which the matter was being put before us by Mr Sutcliffe, a view that in some way or another an Industrial Tribunal must put different labels on bottles and proceed in a very regimented manner from one of these matters to another. But, in our judgment, it is quite clear that this decision relating, admittedly, principally to liability included within it a decision that amounted to the adoption of an `all or nothing' approach to compensation, and coming down squarely in favour of `all', that it should be `all', subject of course to mitigation, because they found it to be a situation where there was another job available which had been given to another person, which the applicant on the evidence before the Industrial Tribunal was entirely fitted to perform. So that it was not a `percentage' situation at all, in our judgment."
There, of course, we were referring to the situation in the Sillifant case, in which Browne-Wilkinson J, as he then was, had said:
"The Tribunal, when asking itself the question what difference would it make, is not obliged to say it would have made all the difference or it would have made no difference. It may adopt a middle position and judge what the chances are that consultation would have made any difference and put a percentage on it."
They went on to consider the remaining matters. They said that the review was, in the circumstances, "a classic example of a party being allowed to have a second bite of the cherry" . And they said, at the bottom of page 49:
"Secondly, in our judgment, in the light of the evidence before the Industrial Tribunal and its findings on the original hearing of the matter, there was, in our judgment, nothing to trigger off the application of the Sillifant percentage principle, having regard to the findings of the Industrial Tribunal the first time round. This was an `all or nothing' case, (although it does not need to be as the then President rightly said), it was in fact such a case and was dealt with as such by the Industrial Tribunal. The Industrial Tribunal decided that it should be `all', as far as this particular point was concerned. In our respectful view the Industrial Tribunal should have stuck by its original decision."
Those passages which I have read were, in our judgment, not merely incidental observations, obiter dicta if you like, which were cast out as our Tribunal went about its duty of deciding whether the review should have taken place. They were essential to the decision.It was essential to the decision of this Tribunal that the Industrial Tribunal had reached what they called "a model decision" in which, having decided that there was unfairness, they had asked themselves the question and answered that question, "Would it have made any difference if there had not been this unfairness; if consultation had taken place" and had answered that question for themselves quite properly, on the evidence which they had received, by saying, "Yes, it would have made all the difference because that would have enabled Mr Davis to satisfy Mr Sands of his abilities and to point out to him that, since there was a job for a man who combined the skills of a technician with those of a labourer perhaps and other building abilities, he should be taken on, in effect, for the new job, even if his old job was considered redundant".So that was the decision of our Tribunal. Then, that decision having been arrived at, in other words the original decision was not reviewed, and stood for the moment, the employers proceeded with the present appeal. And one look at their Notice of Appeal, which has been amended at page 5A onwards, shows that the principal point raised is that the Tribunal did not deal properly with what one could call "the Polkey point".The Notice of Appeal sets out, perfectly helpfully and properly, the authorities on which it relies, including Polkey and Sillifant and other decisions such as Hepworth Refractories Limited , Mining Supplies (Longwall) Limited and Red Bank Manufacturing Company Limited , all familiar to us as highly relevant to the task of an Industrial Tribunal in these circumstances and argues at length, really like a skeleton argument, that the Industrial Tribunal has not done its job. In other words, seeking to raise with us (as it seems to us) precisely the point which was decided by our Tribunal, chaired by Judge Smith QC, in the judgment to which I have been referring. And, says Mr Kibling, on behalf of the Applicant, (the Respondent here to the appeal) this is a classic example of having "two bites of the cherry". Mr Kibling has a skeleton argument. I will not try to paraphrase it, I will refer shortly to the way in which Mr Kibling put it this morning. He said, by seeking to argue again the question decided by this Tribunal, chaired by Judge Smith QC, the employers are trying to do something which is, in fact, an abuse of the process of this Tribunal. They are, he says, seeking to persuade us to depart from three important duties which we must observe.First, the principal of finality. Matters should not be argued twice except, of course, by way of appeal. Secondly, he says, and it is really a very similar point, an illustration of the principle of finality, where a party has had a full opportunity of putting his case, he should not be allowed "a second bite of the cherry". And, he says, it is manifestly unfair that such a thing should happen. Mr Davis and the employers have had their opportunity to have their say and that should be that. He referred us to two very important cases which, as he says, lay down the principle although they are both cases very different from the present. Hunter v Chief Constable of the West Midlands [1982] AC 529 (I will not go into the facts) was a case where there had been a criminal prosecution of a very serious sort and where the learned Judge in the criminal prosecution had on a voir dire (as it is called) decided certain matters. The defendants were convicted and one or more of them sought to raise the matter again by civil proceedings and it was held that, since the issue had been decided by the learned Judge in the criminal proceedings, it was an abuse. Lord Diplock said:
"My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedures in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. ..."
Lord Diplock was there asserting the undoubted principle, as it must now be accepted, that every court should protect itself against an abuse of its process, not of course to protect its own dignity or anything of that sort, but to prevent what amounts to obvious injustice to one or other of the parties.In Ashmore v British Coal Corporation [1990] ICR 485 CA the facts were rather different. There certain cases, among many cases, had been selected as, in effect, test cases. One of the parties whose case was not selected as a test case sought to bring her case after the decision of the test cases (I am calling them test cases in a very loose way as being representative cases) and it was held that what she was seeking to do was an abuse of process of the court. The court said, and it is in the headnote:
"... the categories of conduct rendering a claim frivolous, vexatious or an abuse of the process were not closed but depended on all the relevant circumstances of the particular case, public policy and the interests of justice being very material considerations; that, where sample cases had been selected to enable the tribunal fully to investigate and make findings on all the relevant evidence, relitigation of the same issues, being analogous to a collateral attack on the tribunal's decision, would defeat the purpose of sample selection ..."
And they also observed:
"A claim is not only to be struck out as being an abuse of the process if it is a sham, not honest or bona fide. It is dangerous to try and define fully the circumstances which can be regarded as an abuse of process."
Those decisions (and indeed, there are many others) to the like effect, are ample authority for the proposition urged by Mr Kibling that every court, every tribunal, has jurisdiction to protect itself from an abuse of its process.We ask ourselves, at Mr Kibling's invitation, "Is this a case of abuse of process?". Mr Kibling says he does not put it simply as a matter of issue estoppel. What he does say is that the substance of this appeal has already been decided by this Employment Appeal Tribunal under the chairmanship of Judge Smith, and decided because it was necessary to do so in order to decide the question whether the re-hearing should have taken place, the review should have taken place, in front of the Industrial Tribunal. He has referred to the passages which I have read and other passages from the judgment delivered on our behalf by Judge Smith and he says, "There it is and if you look at the decision given by Judge Smith, that is precisely what we are being asked today to re-hear".It seems to us all, having considered as carefully as we can, that in spite of what is said by Mr West to the contrary, that is precisely and accurately the position here. It was considered right and just by our Tribunal, who heard argument on it, to decide whether this original decision was a satisfactory decision or whether it showed that the Industrial Tribunal, at its first hearing, had departed from the rules which have been laid down in Polkey and the approach enjoined on Tribunals there and the other cases. We held that it was not merely satisfactory but that it was a model decision.It is idle to say, in the circumstances, but it was our impression, that this was, perhaps, not a model decision but a decision which was perfectly satisfactory when you read it as a whole. But it is said that, so far from it being a model decision; so far from it being satisfactory; we are to re-try these questions, and Mr West's Notice of Appeal sets out at great length the precise basis on which he puts his appeal, which leaves us in no doubt that it is intended precisely to raise the questions which have been decided in the judgment delivered by Judge Smith.In those circumstances and to that extent (which I had for a moment, at any rate, thought was the full extent of this appeal) we have no doubt at all that this appeal from the original decision is indeed an abuse of process, not in any deliberately contemptuous way of course; not in any bad faith of course; but because it seeks to ask us to reconsider a matter which our Tribunal has already considered and decided.Mr West said that there was more to his appeal than that and he referred us to what is said at page 5E and I am certainly not going to paraphrase this. He says:
"The Industrial Tribunal had held a split hearing, although their decision is written up as one document. They considered, first of all, as set out in paragraph 1-12 of their decision whether or not the Respondent employee had been unfairly dismissed. They concluded that he had. The remaining paragraphs of the decision 13-17 relate to the second hearing which immediately followed their finding that the Respondent employee had been unfairly dismissed, and that hearing was concerned with assessing the compensation due to the Respondent employee."
So far one would say, "Why on earth should they not do that", but one goes on:
"It is not admitted by the Appellants that in reaching their decision the Tribunal properly addressed the question of what difference would have resulted had they had before them the necessary information to consider whether the Respondent employee could do the alternative job. However, if it is claimed by the Respondent to this appeal that this was considered by the Industrial Tribunal and they concluded that there should be no deduction under the Polkey and Sillifant principles, then the Appellants argue that the Industrial Tribunal reached that decision, which could only be characterised in paragraph 11 at a time when they had firstly not given their reasons for finding the dismissal unfair. Secondly, as a consequence, of not giving that decision and the reasons for it to the parties, the Tribunal had not availed themselves of the relevant information and more particularly submissions with regard to the Polkey and Sillifant principles. As such they erred in law."
According to Mr West, expanding that, they proceeded in the wrong way. First of all, he says, they reached a decision on liability and it appears that it was in that decision that they decided the questions under Polkey and then they went on to the compensation where they were considering (so to speak) quantum only.First of all it appears to us that those allegations against the Tribunal are based simply on the way in which the reasons are set out. In our view, that is an entirely illegitimate inference. Secondly this was, of course, an informal hearing and one of the parties was represented only by their director. If it were alleged that there was an unfairness of the sort described, it could only be resolved by obtaining of course the necessary affidavit or affidavits from Mr Sands, or otherwise showing that such an irregularity occurred and that he was thereby misled, and secondly, by referring to the Tribunal to see about that matter. None of that has been done.It seems to us quite impossible to say (after reading these reasons which we must rest upon if we are to consider them at all) that anything such as is alleged in this amended notice took place. But secondly, and much more fundamentally, this is another attack on the same decision which has, in Judge Smith's judgment, been expressly approved as a model decision. It cannot be.If this was to be part of the attack on the original decision, as justifying the application for a review, then that irregularity should have been made the subject of representations to the Tribunal when it was asked to conduct a review, because it was a highly material matter, as to whether they should grant a review, that there had been a mishap of this sort; a much more solid ground for granting a review (one would have thought) than the matters on which they relied. And secondly, of course, it should have been raised with this Tribunal when it was considering the appeal, but it was not.In those circumstances, although we can certainly see that there has been throughout this case a measure of misapprehension and mishap (if you like) in that the parties, certainly the employers, have not, certainly at the start, fully understood what their duty was and how they should proceed nonetheless, we think that all that is "water under the bridge".This case has, in effect, been decided by us when our Tribunal gave its judgment on 12 May 1995, through Judge Smith, and in those circumstances we have nothing to do but to say that this appeal is not maintainable before us and we must dismiss it; and that is the decision of us all.