British United Shoe Machinery Ltd v Chohan [1997] UKEAT 1099_96_2403

EAT
British United Shoe Machinery Ltd v Chohan
[1997] UKEAT 1099_96_2403 · 1997-03-24

JUDGE N BUTTER QC:

This appeal raises a question as to the extent of the powers of an Industrial Tribunal to consider and enforce an agreement made between the parties before it. It is an appeal by British United Shoe Machinery Ltd in respect of a decision of the Industrial Tribunal at Leicester on 11 October 1995. The Extended Reasons for their decision were sent out on 20 November 1995.At this appeal the Appellants have been represented by Mr John Bowers of Counsel; Mr Chohan has not appeared and has not been represented. He has written a letter to the Employment Appeal Tribunal stating that for financial reasons he is unable to attend. We have, however, considered written representations which he made earlier.The background can be stated shortly. On 31 January 1994 Mr Chohan was dismissed for redundancy. He presented an application to the Industrial Tribunal on 28 March 1994. The case came before the Tribunal on 31 January 1995. The events of that day are described by the Industrial Tribunal in its decision of 11 October 1995. They say that on 31 January 1995, when both parties were represented, the parties asked for time since they were considering agreement. They were given that time and the Industrial Tribunal records that:
"2. ... Our note shows that at 11.30 they came back and announced an agreement. ... The note this Chairman took was as follows:
'At the hearing the parties reached a settlement terms of which are endorsed on Counsel's brief. Either party have liberty to apply should those terms fail. Upon that settlement the application is withdrawn and upon its withdrawal dismissed. The Recoupment Provisions do not apply'."The Industrial Tribunal went on to say:
"3. We did not enquire before that settlement as to the terms of that settlement. After that settlement we did know the amount of money involved and we did know, with the consent of the parties, that there was an attempt to allow for the applicant to try for a job that had been recently advertised in the respondent's firm."
Thus the Industrial Tribunal did not hear the application on its merits, or make any determination upon the issues. In so far as it reached any decision, it was simply to record the fact that the parties had reached agreement. There is a manuscript note of the terms of settlement which the parties had arrived at. I need not refer to them in full, but they begin with the phrase:
"1. In full and final settlement of all claims the Applicant has arising out of the termination of his employment on 31 January 1994 and the claim in the Nottingham County Court in respect of outstanding holiday pay, it is hereby agreed:- ..."
The agreement went on to record that the Respondents, the employers, were to pay the Applicant a specified sum; that they were to interview the Applicant within 9 days for the position of stock keeper; further, that the Respondents would provide the Applicant with a reference and the agreement goes on to say at the end:
"(d) that the Applicant does undertake to withdraw his claim herein and the said County Court action upon satisfaction by the Respondents of Clauses (a) and (b) above [referring there to the payment of money and to the interview]. "
Those terms of agreement were signed by the representatives of the parties.There is no dispute that the employers paid the money in question and that they gave a reference. There is a dispute with regard to the interview. The information before the Employment Appeal Tribunal indicates that there was an interview on 8 February 1995 and that it lasted approximately 2½ hours. Mr Chohan did not get the job. Some time afterwards, on 8 May 1995, he complained about the interview, saying that it had been a sham. He made an application to the Industrial Tribunal.The documents before us suggest that there was some confusion in the minds of the Industrial Tribunal as to whether they were being asked to review the decision, or to act upon the so-called "liberty to apply" terms. If they were reviewing the matter under Rule 11(1) of Schedule 1 of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993 , it would, in practice, be expected of them that they would identify under which particular part of Rule 11(1) they decided to grant the review.I return to the decision of the Industrial Tribunal of 11 October 1995. It states:
"The application for a review is granted. The full Tribunal will consider whether the terms of settlement were fulfilled. If they were not the Tribunal will then go on to consider whether their order should be revoked and a fresh hearing ordered."
In paragraph 6 however, of their decision they say:
"6. We regard this as an application to apply under the terms of the agreement (liberty to apply)."
The employers objected to the Industrial Tribunal that the Tribunal did not have any jurisdiction whether to review the matter or to act under the so-called "liberty to apply" provisions. That is the main issue on the appeal today.We have reached the conclusion that the Appellants' argument is well-founded. There was no decision by the Industrial Tribunal except to record the fact of settlement. The nature of the settlement was unknown to the Industrial Tribunal at the relevant time. The settlement was reached between the parties. There was no question of the Industrial Tribunal ordering payment of any sum of money by the employers.We have expressed concern as to how the words "liberty to apply" became recorded in the so-called decision. Those words are not in the agreement as reached between the parties. If a mistake has been made in recording them, then that is not an argument which has been presented to us.We have considered a number of authorities. Some assistance can be derived from the well known case of Green v Rozen [1955] 2 AELR 797. We have also been referred to and derived some assistance from Hinde v Hinde [1953] AELR 171.It is unnecessary for us to decide the position if the parties had agreed to a stay with or without the words "liberty to apply". On the basis of the facts and argument before us, we conclude that the parties themselves had reached a decision and did not confer upon the Industrial Tribunal power to consider the whole case again in the circumstances which exist here. It is conceivable that Mr Chohan might have a remedy by a claim in the County Court, but we express no view as to the likelihood or otherwise of any such claim succeeding.In the end we are unanimous in our decision that the appeal must be allowed. We propose to grant a declaration that the Industrial Tribunal had no jurisdiction to entertain Mr Chohan's application, whether by way of review, or whether by reason of the words "liberty to apply".