Brown v Astra Training Services Ltd [1996] UKEAT 803_95_2603

EAT
Brown v Astra Training Services Ltd
[1996] UKEAT 803_95_2603 · 1996-03-26
MR JUSTICE MUMMERY (PRESIDENT) : This is a preliminary hearing of an appeal by Mr David Brown against the refusal of the Industrial Tribunal held at Leeds on 26 May 1995 to grant an application for a review made by Mr Brown. Mr Brown's letter to the Appeal Tribunal dated 20 July 1995 has been treated as a notice of appeal against the decision of the Leeds Industrial Tribunal which notified its extended reasons to the parties on 28 June.The purpose of the preliminary hearing, which has been conducted by Mr Brown in person, is to decide whether the notice of appeal raises an arguable point of law. This Tribunal only has jurisdiction to hear appeals from Industrial Tribunals on questions of law in decisions of the Tribunal or which arise in proceedings before a Tribunal. If there is an arguable point of law, the case will proceed to a full hearing of the appeal. If there is not, there is no jurisdiction in this Tribunal to entertain the appeal and the appeal will be dismissed.In order to understand the points made by Mr Brown in the notice of 20 July and in his oral arguments today, it is necessary to refer to the background to the decision refusing the review.The decision which Mr Brown sought to have reviewed was a decision of the Industrial Tribunal held at Leeds on 21 and 22 July 1994. The Industrial Tribunal heard proceedings between Mr Brown's Union, the NUCPS and Mr Brown's employer, Astra Training Services Ltd, which was in administrative receivership.There were three applications before the Tribunal. One brought under paragraph 10(2) of the Transfer of Undertakings (Protection of Employment) Regulations 1981, which impose a duty on an employer to inform and consult trade union representatives; and two applications brought under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992. Those applications were consolidated. The Tribunal recorded in their extended reasons notified to the parties on 12 August 1994 that the TUPE application was withdrawn and that the two applications under section 188 of the 1992 Act were well-founded and a protective award was made in respect of each of the employees whose names appeared on the lists attached to the decision. There were two lists. Those employees in List A had a protective period of 30 days and those in List B, a protected period of 28 days.Section 188 of the 1992 Act provides that:
"(1) An employer proposing to dismiss as redundant an employee of a description in respect of which an independent trade union is recognised by him shall consult representatives of the union about the dismissal in accordance with this section."
Section 188(8) expressly provides that that section:
"does not confer any rights on a trade union or an employee except as provided by sections 189 to 192 below."
Section 189 confers a right on a recognized trade union to present a complaint to an industrial tribunal:
"(1) Where an employer has dismissed as redundant, or is proposing to dismiss as redundant, one or more employees of a description in respect of which an independent trade union is recognised by him, and has not complied with the requirements of section 188..."
The important point to note is that the complaint can only be brought by the trade union , not by the employee. The section provides that, if a complaint is held to be well founded (and this was) a protective award is made in respect of one or more descriptions of employees:
"(a) who have been dismissed as redundant, or whom it is proposed to dismiss as redundant"
and details are contained in that section about what are the protected periods and how they cannot exceed 90 days in some cases, 30 days in other cases and 28 days in any other case.The complaint to the Industrial Tribunal in Leeds heard on 21 and 22 July 1994 was by an independent trade union recognized by the employer. It was not a complaint which could have been brought under section 189 by Mr Brown because Mr Brown is not an independent trade union. He is a member of one. He was an employee who was being dismissed as redundant, but he is not a trade union.Mr Brown would only have the right to bring a case before the Industrial Tribunal in the circumstances described in section 192. Section 192 provides that:
"(1) An employee may present a complaint to an industrial tribunal on the ground that he is an employee of a description to which a protective award relates and that his employer has failed, wholly or in part, to pay him remuneration under the award."
The structure of these sections, 188 to 192, is simple. The employer is under a duty to consult with trade union representatives. If there is a failure of that duty, the union, not the members or the employees, can bring a case. If the application by the union is successful there are awards for the benefit of the employees called "protective awards", which are calculated in the manner and for the period specified. The employee under these sections only has a right to bring a case to an industrial tribunal against the employer, if the employer does not pay him what has been ordered by way of a protective award on the application of the union.It is important to add that there are substantial amendments to these provisions following infringement proceedings brought in the European Court of Justice by the European Commission against the United Kingdom, but those amendments will not affect Mr Brown's case. They only affect cases where the dismissal has occurred after March 1996.Those are the statutory provisions, in their pre-amended form, which were relevant to the decision before the Industrial Tribunal in Leeds in July 1994. At that Tribunal hearing, the union was represented by Counsel, Mr Randall. The Respondent employer was represented by Counsel, Mr Elias. The Tribunal heard evidence from a number of people, including Mr Taylor, the negotiations officer with the applicant trade union. On the basis of the evidence which they heard, the Tribunal made findings of fact. Among those findings of fact were that the skill centres, operated by the Respondent employer, were operationally self-contained out of permanent offices. They secured a great deal of their own business locally. They issued invoices locally. There was very little inter-mixing of staff between the various training centres. They were, however, all subject to overall management and control from the Head Office.In paragraph 12 of the decision the Tribunal said:
"In our view each of these training centres was an establishment in their own right. They operated effectively their own business at a local level. There was a significant level of management at each of those depots. They sought out their own customers and issued invoices from those training centres. The employees, if asked, would no doubt have identified their permanent place of employment as being the training centre out of which they operated. In those circumstances it seems to us manifest that each of the training centres should be regarded separately.
13. Having reached that preliminary finding of fact we then had to go on to determine the protected period in respect of the various categories of employees. It was conceded by the applicant that in the light of our finding of fact there would be no employees who would be entitled to a maximum 90 day protected period. We therefore had to initially determine which employees were entitled to a maximum protected period of 30 days and which employees had a maximum protected period of 28 days.14. The parties helpfully prepared a list which is attached to this order. That list shows all of the employees who were members of the applicant trade union who were made redundant. It indicates the location out of which they worked, their names, their job title and the date that they each left the respondents employment. That list has been divided into 2 lists, one marked `A' and the other marked `B'. It is agreed that those employees named in the list marked `A' are entitled to a 30 day protected period and that those employees named in the list marked `B' to a 28 day protected period."That is the decision that Mr Brown wants reviewed. He made his application for a review after he had succeeded in other proceedings heard in the Industrial Tribunal in Glasgow. Those were proceedings not between the union and the Respondent, Astra Trading Services, but between Mr Brown personally and Astra Training Services. Those were unfair dismissal claims. Mr Brown successfully conducted his case. The Respondents were not present or represented. Their solicitors made written representations in a letter.In those proceedings heard in Glasgow on 4 January 1995 the Tribunal unanimously decided that Mr Brown had been unfairly dismissed by Astra Training Services. The reasons for the decision were stated in a summary form and sent to the parties on 27 January 1995. In the summary reasons the Tribunal set out the background to the dispute. They referred to the appointment of the administrative receivers over the affairs of Astra in July 1993. They referred to Astra's redundancy policy which identified criteria for selection. They summarized the circumstances in which Mr Brown was made redundant on 23 July 1993. The Tribunal said this:
"Against the factual background ... the only issues before the Tribunal were issues arising out of section 59 and section 57(3) of the Employment Protection (Consolidation) Act 1978. The Tribunal were satisfied that the stated reason for the applicant's [Mr Brown] dismissal namely redundancy was indeed established."
The Tribunal went on to hold that this was an unfair dismissal, because there had not been compliance with the redundancy policy in accordance with s.59. The dismissal was unfair also because there had been no adequate consultation with Mr Brown personally on the question of his redundancy. That being so, the Tribunal said on page 5 of their decision that his dismissal was unfair. They explained the basis on which they calculated compensation.There is a discussion on page 4 D to E of the decision about a matter relevant to the point decided in the Industrial Tribunal in Leeds about the individual centres being self-contained. They say this:
"... the applicant [Mr Brown] asserted that his contract of employment put him on a mobile basis in that he could be asked to work at any one of the respondents skill centres. It was not clear to the Tribunal how that could be rationalised with the respondents view that each individual training centre should be assessed on its own. The second point (and perhaps the most significant point) is that in terms of the respondents own policy on redundancies the policy is silent in the question of looking at individual training centres as opposed to the workforce as a whole. If the respondents had looked at the workforce as a whole ... appeared to the Tribunal on the information before them that the applicant might have been retained within the workforce and a person engaged in similar work to the applicant with less service than the applicant might then have been made redundant."
Those observations were additional to the conclusion that the Tribunal had already expressed that there had been a breach of the agreed procedure provisions of s.59.Following that decision, Mr Brown wrote to the Tribunal in Leeds and made an application for a review. The Tribunal heard Mr Brown in person make his review application. They said this:
"Mr Brown is a member of the applicant Trade Union [the NUCPS] and is aggrieved by the tribunal decision [of 22 July 1994]. He pursued an application for unfair dismissal which was heard by the tribunal sitting in Glasgow on 4 January 1995. Mr Brown points this tribunal to paragraph D. on page 4 of the Glasgow tribunal's decision when that tribunal makes reference to the applicant's contract of employment and the mobility clause therein contained. The tribunal expressed the view that it was not clear to them how, on the basis of that mobility clause, the respondents could hold the view that each individual training centre should be assessed on its own for the purpose of selecting employees to be made redundant."
Mr Brown submitted to the Leeds Tribunal that that observation of the Glasgow Tribunal contradicted the finding of fact in paragraph 10(c) and the views expressed in paragraph 12 of the Leeds Tribunals decision in July 1994 in which they found that:
"there was little mobility amongst staff between the various training centres and that each employee would identify the training centre out of which they operated as their permanent place of employment."
Mr Brown submitted to the Tribunal that, if the Leeds Tribunal had been referred to the contracts of employment of the individual employees which contained the mobility clause as a standard clause, they might have reached a different conclusion. They might have found that the respondents' undertaking should have been considered as a whole as one establishment. That would have produced the result that each of the employees, including him, who had been made redundant, would receive the full 90-day protective award, not the lesser award of 30 days or 28 days.Mr Brown said that the evidence which was given on behalf of the Union and the concessions which were made by the Union in the light of that evidence were wrong. The evidence was not an accurate reflection of the position of individual employees. That finding of fact was the converse of the truth. In those circumstances, the concession about the length of the protected period was wrong.For those reasons Mr Brown said that there should be a review. The Tribunal refused the review on three grounds. The first was what may be regarded as a technical ground. Mr Brown says it was the only ground they gave when the review application was dismissed with summary reasons in May. That was that he could not apply for a review because he was not a party to the proceedings. The Tribunal's power of review of its own decisions is contained in Rule 11, Schedule 1, of the Industrial Tribunals Rules (Constitution and Rules of Procedure) Regulations 1993:
"...

(a) to (e) "

It is clear from the rest of the rule that, if the review is not instigated by a tribunal of its own motion (and this was not), a review can only be made on the application of a party.Mr Brown was told by the Tribunal that he could not have a review, because he was not a party. It was true that he was a member of the Union and would derive benefit from the order made on the application of the Union. The Union, however, were not prepared to support Mr Brown in his application. They did not make the application for review. The Tribunal concluded in paragraph 4:
"... on that basis we cannot find him to have been a party to the original application which would give him the locus to pursue this application."
Mr Brown says that that is wrong in law. He has been denied a review in proceedings where the Union acted on his behalf in the first instance in going to the Industrial Tribunal to obtain a protective award. He says that it goes without saying that he was affected by the decision of the Tribunal in July 1994, even though he did not bring the case against Astra. As he is affected by the decision, he is a party for the purposes of Rule 11.We do not agree with Mr Brown on this point. It is clear reading s.188 to s.192 as a group of sections in the 1992 Act that the only parties to the proceedings in July 1994 were the Union and Astra. Mr Brown had no right to bring those proceedings, nor did any other member of the Union, nor did any other employee of Astra. The Act states that only the Union can bring the complaint which leads to the protective award. Section 192 is to be contrasted with this. Section 192 makes it clear that an individual employee does have a right to go to the Industrial Tribunal, not to secure a protective award, but in order to enforce a protective award which has been made, but not complied with. That is not the complaint here. The complaint is not that the protective award was not complied with. The complaint made by Mr Brown is that the protective award was not for as long a period as it should have been. That is not a complaint that he was entitled to make in the original proceedings. In our view, it is not a complaint which he is entitled to make in seeking a review. In our judgment, the only person entitled to seek a review on Mr Brown's side, on the employees' side, is the Union itself. If the Union would not support Mr Brown's application, then any complaint that Mr Brown may have is not by way of review of the decision but as a grievance about his Union's failure to take up his case on his behalf.It is not for us to express any view on that. The Union is not present or represented today. It is not associated in any way with this appeal.We would, therefore, dismiss Mr Brown's appeal on that ground alone. The Tribunal were right in law to reject his application for review on the basis that he was not a party to the case which he sought to have reviewed.We deal briefly with the two other grounds given by the Tribunal for their decision. They were that even if Mr Brown was regarded as a party, because he benefitted from the proceedings (though not to such an extent as he claimed he should have done) there were no grounds for review on the substance of the matter. The Tribunal said that a review could only be made if it came within the grounds set out under paragraph 11 of the Industrial Tribunal Regulations. The only grounds which applied were, first, that new evidence had become available since the conclusion of the hearing, that is ground (d), and (e), that the interests of justice require a review.We agree with the Tribunal that Mr Brown cannot bring his case within either (d) or (e), even if he is regarded as a party. Review can only be sought on the basis of new evidence that has become available since the conclusion of the hearing to which the decision relates and provided that its existence could not have been reasonably known of or foreseen at the time of the hearing.In this case the complaint is not that there is new evidence. The complaint is that such evidence as there was, notably the contracts of employment containing the mobility clause, was not brought to the attention of the Tribunal in Leeds. There is no suggestion that it could not have been. The contracts of employment with the mobility clause existed and were available. The fact that they were not made use of to produce a different finding of fact is not a matter which can now be the subject of an application for a review. It is not new evidence. On that point the Tribunal is right.Thirdly, and finally, the Tribunal said that the interests of justice did not require a review. They accepted that, on the face of it, there was a discrepancy between the two Tribunal decisions, that is, the Leeds Tribunal decision of July 1994 and the Glasgow decision of January 1995, but added:
"Those decision ... relate to different applications and were made on the basis of different evidence."
The Tribunal are correct in that observation. One was an application against Astra by the Union, the other was an application by Mr Brown, as an individual, against Astra. The evidence was different. There may be different decisions, even relating to the same or a similar point, by different Tribunals.We would add that the discrepancy referred to between the two decisions and which has been relied on by Mr Brown is not, in our view, as significant as Mr Brown suggests. He succeeded in his claim in Glasgow on two bases, s.59 and s.57(3); the agreed procedure for redundancy was not complied with and the dismissal was not procedurally fair because he had not been consulted individually. The observations of the Tribunal, to which Mr Brown has referred on page 4(d) of the decision, are in relation to the contracts of employment with mobility clauses. They are not, in our view, crucial to the decision of that Tribunal.In those circumstances, although there is some difference of view about the matter, we would not go so far as to say that there was such a discrepancy between the two decisions that the interests of justice required the Leeds Tribunal to re-open their earlier decision, even Mr Brown were able to do that, which the Tribunal said he was not because he was not a party.For those reasons, we have come to the conclusion that the Industrial Tribunal at Leeds were legally correct in rejecting the application for a review on all three grounds. In those circumstances, we can find no error of law in the decision. We, therefore, dismiss the appeal at this stage.