Percy v CUK Ltd [1996] UKEAT 923_95_1306

EAT

Percy v CUK Ltd

[1996] UKEAT 923_95_1306 · 1996-06-13

JUDGE HULL QC:

This is an appeal to us by Mr John Percy who was employed from September 1990 to 13 January 1995 by a firm called C.U.K. Limited as an NDT Technician (NDT stands for non-destructive testing). He and a number of other men were employed in the department known as the NDT department. There was, said the employers, a redundancy situation and a choice had to be made among a number of employees. In the result, on 13 January 1995, Mr Percy was dismissed and, the Respondent said, fairly and properly dismissed, for redundancy.

He presented his application to the Industrial Tribunal complaining of unfair dismissal and seeking compensation on 9 February 1995. At page 15 of our bundle he sets out his case and says it is unfair dismissal and says correctly that he had been employed for over four years and was happy with the work that he was doing; and he complains about the way that he was made redundant. He says amongst other things that he was not properly consulted and that he did not know the objective criteria on which he was selected - matters which might, if he had supported them, have been very material matters, and certainly the Tribunal would, if that had been the case put before them, have been under a duty to look into those matters.

There was a notification of the hearing date on 8 June 1995. There had apparently been an earlier hearing date but that had been vacated and the Applicant's solicitors wrote on 15 June 1995 saying that the proposed date of 28 June 1995 was not convenient. We refer to that letter:

"We thank you for your letter dated 8th June. Unfortunately our client's witness will be unavailable on the 28th June and we should be obliged if you would kindly relist the hearing."

That was the letter that was written. Perhaps optimistic. Perhaps rather short and should have been elaborated on. A witness was to be unavailable.

Apparently the letter was not received by the Tribunal or the Regional Office. Certainly there was no response to it. On 28 June the Industrial Tribunal, under the Chairmanship of Mr Bellis with two Industrial Members, sat at Nottingham to hear the complaint which was made to them. The short and straightforward record of those proceedings is at page 3 of the bundle:

" REPRESENTATION

The applicant did not attend.

For the respondent: Mr R Graham of EEEMA

DECISION

The unanimous Decision of the Tribunal is that the application is dismissed.

REASONS

1 This is a full Decision

2 The applicant did not appear and we decided to dismiss his application."

That was the decision on that occasion. The decision was promulgated on 18 July. A review was sought and that was dealt with at page 13 of the bundle in a reasoned decision, Mr Bellis again sitting with two Industrial Members. He said that there was no record of the receipt of the letter. He dealt with various matters and a review was refused. We are satisfied, he said, that the Applicant's representatives have not acted with due diligence and in the circumstances it would be wrong to order a review. The fact is that it is to any lawyer's eye, perhaps to anybody's eye, rather extraordinary that having written a letter asking for an adjournment and saying that it was not an appropriate date, for the perfectly good reason that a witness was not available, and hearing nothing as to whether the application was granted or refused, or whether the Tribunal wished to have further information before deciding, or whatever it might be, the solicitors who as it is said, and we certainly accept, are competent and well-known solicitors, did not follow it up.

Having failed to obtain a review the Applicant appealed. In his Notice of Appeal which is at page one of our bundle, the grounds which are put forward are: that the Appellant requests that the Appeal be granted, setting aside the decision, and the Notice complains of the decision not to adjourn. That is not persisted in, but what is persisted in today is what, in effect, is a new case. Mr Hale agrees that this is a case which, so to speak, was pointed out by this Tribunal itself when the matter was heard at a Preliminary Hearing, and so in those circumstances, he has proceeded on that basis and agrees that if indeed this Tribunal is in his favour, then his Notice of Appeal should be amended. It is agreed by Miss Mountfield, who appears for the Respondents to the appeal, that she is not prejudiced in dealing with it.

We turn to the arguments which we have heard from Mr Hale. He says in his Skeleton Argument, for which of course we are grateful, that what happened gives rise to two grounds of complaint. Rule 9(3) of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations as amended by The Industrial Tribunals (Constitution and Rules of Procedure) Amendment Regulations provides as follows:

"(3) If a party fails to attend or to be represented at the time and place fixed for the hearing, the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date: provided that before dismissing or disposing of any application in the absence of a party the tribunal shall consider his originating application or notice of appearance, [and then the following words which do not have any application] any representations in writing presented by him in pursuance of rule 8(5) and any written answer furnished to the tribunal pursuant to rule 4(3)."

Mr Hale said at any rate they should consider the documentation. We asked what that meant and Mr Hale said the Notice of Appearance as well as the Originating Application. That, with respect, must be wrong, if you read the rule grammatically. It must be, in the case of an Applicant, the originating application. In the case of the Respondent, if they are dismissing the matter, they must look at the Notice of Appearance. It is clear that it is referring not merely to applicants but respondents. So all they have to do and are required by the rule to do, is consider the Originating Application. It is said that that is something which was incumbent on them and they did not do it, or at any rate there is no record of having done it.

Mr Hale says that it would have been sufficient for the purposes of this argument if they had said in their decision "we have considered the Originating Application and, the Applicant not attending, dismiss the application". It seems to us that to insist on such a formality would be the absolute negation of justice. Courts, judges, magistrates, all types of tribunal are required by the rules to do all sorts of things of an administrative character. It cannot be alleged that this is a judicial duty in the strict sense, because if the considering of the Originating Application was a judicial duty, they would have to form a view on its merits and they could hardly do that in the circumstances. They are not "disposing" of the application, the rule makes that plain. They may dismiss or may adjourn the hearing, or may dispose of the application in the absence of that party, that is clearly something different. If they are to dispose of it, they will, presumably, since it is something apart from dismissing it, have to enquire into the merits and hear evidence, perhaps rather shortly, but enough to enable them to dispose of it, or they may adjourn the matter. So they are only to consider the Originating Application, but not of course to say as a result of considering it "well this is a strong case or a weak case" or "we hear too much of this sort of case" or whatever it may be. They decided to dismiss the application.

It does not appear to us that there is anything in this submission to which we could give effect. It seems to us that the Tribunal, though they are no doubt required to carry out their duty of considering the application, are not bound to set out in the decision that they have carried out that duty.

Rule 10(2) of the regulations provides (and this is the second limb of Mr Hale's argument) that:

"(2) The decision of a tribunal, which may be given orally at the end of a hearing or reserved, shall be recorded in a document signed by the chairman.

(3) The tribunal shall give reasons for its decision in a document signed by the chairman. That document shall contain a statement as to whether the reasons are given in summary or extended form..."

Here, says Mr Hale, the Tribunal has not given its reasons, so we asked Mr Hale what reasons could they have given, "give us examples of the sort of reasons they could have given". The answer of course is very difficult to give. Having said that the Applicant had not attended and that they were minded to act under the first part of Rule 9, they could hardly give judicial reasons based on considering the application, for the reasons I have already indicated. If they were to start enquiring into the matter at all, so that they could give judicial reasons for their decision, they would be in effect "disposing" of it - that is to say, hearing the matter in the absence of one party and proceeding.

It seems to us that in such circumstances as this, they will say "we are dismissing the application because the Applicant does not attend". That is a matter within their discretion. They might add the words "in our discretion". They might, if they were very cautious, go on to give reasons why they were exercising their discretion. It seems to us that is far beyond anything they are required to do. The only reason they can legitimately give if they have not considered the merits in any way is this: "he has not attended", and that is what they did do. It is a matter, as the rule makes plain, in their discretion. It seems to us, backing up the commonsense of that, that it is wholly anomalous and on the face of it an abuse, that a party who has not attended and has taken no part in the original hearing, should then appeal, unless he can point to some obvious error of jurisdiction or something of that sort which makes the decision perhaps a nullity. It is in our system inherent that except in special circumstances, those matters which are pressed upon a court of appeal of any sort, using that expression in its widest sense, should be matters which were urged upon the Tribunal below, about which this Tribunal, to be more specific, will then have the assistance of the Tribunal below. Therefore, for a party, who has not attended before the Tribunal below, then to appeal on the basis of inadequate reasons for the decision of that Tribunal is, ostensibly at any rate, vexatious, because it is inviting an appeal tribunal to do something when the tribunal below has not been asked to do it.

In our view, this Tribunal did give a reason and the only reason that it could give in the circumstances was the one which it did give. That brings it back to a question of discretion and we accept the submission that exercises of discretion, unless they are what is called in shorthand terms " Wednesbury unreasonable " that is to say, manifestly irrational, are matters for the Tribunal with which we cannot possibly interfere. Look at it whichever way we can, we cannot see any way in which this appeal, though very capably and firmly put forward by Mr Hale, can possibly succeed. That is the decision of us all.