Clifton v FMA Ltd [1996] UKEAT 758_96_1212

EAT
Clifton v FMA Ltd
[1996] UKEAT 758_96_1212 · 1996-12-12

JUDGE LEVY QC :

By an application dated 12th November 1995, Mr John Reginald Clifton made an application to an Industrial Tribunal. He complained that FMA Ltd ["the Company"], his employers, where in breach of a contract of employment and had wrongly dismissed him. His originating application was amended on 20th December 1995. The Company entered a Notice of Appearance dated 8th February 1996 and was received by the Industrial Tribunal at Reading the next day.Within the Company's Notice of Appearance there was a document headed "Ground of Resistance". From it it was apparent that the company admitted a contract of employment alleged that the dismissal was not breach of that contract but put in issue the length of Mr Clifton's employment with it.The last of these issues as to whether Mr Clifton had been employed for a sufficient time to entitle him to come to an Industrial Tribunal - resulted a hearing on this point before an Industrial Tribunal sitting at Reading on 30th May 1996. The decision of the tribunal was promulgated on 18th June. There was an appeal by Mr Clifton from it dated 10th July 1996. Why Mr Clifton appealed became apparent when an affidavit of his solicitor who was present at the time, sworn on the same day as his Notice of Appeal is read. Paragraph 2 of that affidavit said:
"2. The issue before the Tribunal was whether Mr Clifton has sufficient continuity of employment, it was conceded that he was an employee from 1st September 1994 to 9th November 1995, but FMA Limited argued that Mr Clifton was not employed under a contract of employment prior to this date. The issue for the Tribunal was therefore whether Mr Clifton was an employee or self employed between 1st October 1993 and 31st August 1994.
3. At the conclusion of the hearing, Mr Gorst [ The Chairman - sitting alone ] gave his decision. He decided that Mr Clifton had been employed for that period and accordingly was entitled to bring his claim. Mr Gorst made it clear that he was reluctant to reach his conclusion but felt compelled to do so in the light of the authorities.4. Neither my firm nor Mr Clifton was ever contacted by the Tribunal to be told that Mr Gorst was reconsidering his decision. The first I knew of the matter was on 19th June 1996 when my firm received the written reasons undercover of a letter from Tribunal which stated that the "the attached differs from the announced decision.""The Chairman was asked by the Registrar to comment on that affidavit and he did so in these terms:
"You have asked me, as the presiding Chairman, to comment on the affidavit ...
That affidavit is factually correct in so far as it states that between announcement of the decision and promulgation I changed my mind.With the benefit of hindsight it is clear that I should have reserved the decision. Having failed to do so I should have promulgated the decision as originally announced and concurrently indicated an intention to review and given the parties my reasons for wishing to review and an opportunity to show cause why there should be no review.

I can only express my regret for not having adhered to the laid down procedure."

In conspicuously able submissions, Mr Nicholls has submitted on behalf of Mr Clifton, first that the Chairman was not entitled to change his mind once he had given an oral decision. If that submission was wrong, Mr Nicholls submitted, in the alternative, that the Rules of Procedure had recently been changed, and he acknowledged that the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993 Rule 11 provided, for the first time, for a review of the tribunal's decision. He submitted that on a true construction it sub-rule (1)(e) of Rule 11 which could have possibly have been in point here. The sub-rule reads:
"11.-(1) Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that-
. ..

(e) the interests of justice require such a review."

But, he said, that in the light of the law when a tribunal changes its mind, it would not open to the tribunal to invoke that sub-rule.He invited us to allow the appeal and substitute for the order of the Industrial Tribunal in the recorded decision, the decision which the Chairman had orally announced. On consideration, however, with which the representative of the Company on this appeal agreed, he submitted that the better approach on this appeal would be for us to allow the appeal and remit the question which the Chairman purported to determine in the decision sent to the parties for a fresh hearing before a differently constituted Industrial Tribunal.We prefer not to rule on Mr Nicholls's first submission, that the Chairman was not, in the circumstances of this case, entitled to reconsider his decision between giving an oral indication and giving the written decision. In our judgment, however, what the Chairman did was plainly wrong. If he thought that the oral decision was wrong, at least he should have promptly invoked Rule 11, first to hear arguments as to whether he was entitled to change his decision, then subject to the decision on that, to invite further submissions from the parties as to the merits of what he proposed. We should add that in so far as he says in his letter he should have called for a review of his decision at the same time as it was released, he failed perhaps fully to consider sub-rule (3) of Rule 11, to which Mr Nicholls also drew attention:
" (3) A tribunal may only review a decision of its own motion if, within the period beginning with the date of the hearing and ending with the fourteenth day after date on which the decision was sent to the parties, it has sent notice to each of the parties explaining in summary form the ground upon which and reasons why it is proposed to review the decision and giving them an opportunity to show cause why there should be no review."
It appears from the dating of the documents that the Chairman was out of time to invoke this sub-rule.In the interests of justice, we have to allow this appeal in the way the parties suggest. No written decision has been made from which the appellant can appeal in the sense that the promulgated decision of the Chairman was an improper one, and not one which he was entitled to make; the written decision in the circumstances is therefore not one in which the employer can rely. Both parties are at the disadvantage of having to have a further hearing before the Industrial Tribunal. That this has become necessary is a matter of regret for us, as it was for the Chairman whose action has made this appeal necessary.