Rees v G B Gels Ltd [1997] UKEAT 1310_96_2507

EAT
Rees v G B Gels Ltd
[1997] UKEAT 1310_96_2507 · 1997-07-25

JUDGE PETER CLARK :

This is an appeal by Mr Rees, the applicant before the Cardiff Industrial Tribunal, against a decision of the Chairman, Mr G Davies, promulgated with full reasons on 16th October 1996 ["the review decision"] to summarily dismiss under Rule 11(5) of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993 , an application made on the applicant's behalf by his former solicitors by letters dated 12th and 24th July and 2nd August 1996, for a review of the full Industrial Tribunal decision by a majority to dismiss his complaint of unfair dismissal against his former employer, the respondent G B Gels Ltd ["the substantive decision"]. The substantive decision with summary reasons was promulgated on 5th July 1996.

The Complaint

On 27th November 1995 the applicant presented his complaint of unfair dismissal to the Central Office of Industrial Tribunals. His representative was named on the form IT1 as Mrs J M Jones of Salter, Rees & Kelly, solicitors of Swansea. He alleged that he had been employed by the respondent from 27th September 1993 until 1st November 1995 as a pilot plant supervisor. It was said that he had been verbally promised employment for a further year on 18th September 1995, but was then dismissed because his qualifications were unsuitable; he was not given an opportunity to obtain the necessary qualifications and as such he was dismissed for an automatically unfair reason, in the sense, we understand, that where no prescribed reason is made out, the dismissal will be unfair without considering the question of reasonableness under s.98(4) of the Employment Rights Act 1996 .The respondent, which had not been professionally represented, entered a Notice of Appearance on 19th December 1995, signed by Mr Vernon, the Financial Director, which gave as the reason for dismissal "Termination of annual contract". Pausing there, Expiry of a Fixed Term contract without renewal is a dismissal; it is not the reason for dismissal. Secondly, it was pleaded that the appellant had been employed from 1st November 1993 until 25th September 1995, that is, less than the two years continuous employment required to qualify for unfair dismissal protection. In a letter attached to the form IT3, it was contended that a time came when the respondent needed a suitably qualified scientist, and that at a meeting held on 9th October 1995 the appellant accepted that he did not have the necessary qualifications.We recognise, of course, that Industrial Tribunal pleadings are relatively informal. Having said that, it must be observed that the pleadings in this case were less than helpful in formulating the issues for determination by the Industrial Tribunal.

The Industrial Tribunal hearing

This was spread over three days, 26th February, 7th May and 13th June 1996. We have the Chairman's Notes of Evidence, together with an affidavit sworn by Mrs Jones on 21st May 1997 and the Chairman's written comments on that affidavit dated 22nd July 1997.From that material we see that on the first day it was conceded by the respondent that the appellant did have two years continuous service terminating on 31st October 1995. Having investigated that matter, we are satisfied that the concession was properly made. No evidence was called that day, but the Chairman noted that the respondent's case was "limited to qualifications". Thereafter the case was adjourned to the 7th May.On the second day Mrs Greenshields, a director of the respondent, who was conducting the respondent's case, herself gave evidence. During evidence in chief she said that when the appellant was first employed as pilot plant supervisor to help in the building and commissioning of equipment, it was on a manual basis. He did not have any qualifications. Later, she said that in early 1995 there was no work for the appellant to do other than the manual side of pilot plant, and that the usual work he had been doing concluded by November 1995.In cross-examination she said that the reason for dismissing him was qualifications. She repeated that reason on two further occasions.A further witness, Mr Collyer, was called on behalf of the respondent. He was a director of a company with which the respondent dealt; he did not know the appellant, and the relevance of his evidence escapes us.On the third day, the appellant gave evidence. He said that on appointment he was told that he did not need qualifications for his job, which was that of a labourer. He referred to the meeting on 9th October 1995, attended by Mr Vernon and Dr Greenshields, the principal of the respondent, at which he was told that they required a fully qualified scientist with experience which he did not have and that there was no more work for him.In cross-examination he asserted that the reason for his dismissal was lack of qualifications.The Chairman summarised the reasons for dismissal in his notes at the end of the appellant's evidence as being:1. Lack of qualifications.2. There was nothing for him, i.e. labouring and driving jobs.

The substantive decision

We emphasise that only summary reasons were given, at the request of both representatives. Having said that, we are unclear as to the basis on which the majority members, including the Chairman, dismissed the complaint. At paragraph 4 of the reasons it is recorded that the reason for dismissal related to the appellant's capability. However, in paragraph 9 the majority appear to be holding that on dismissal the appellant was told that there was no further work for him and therefore he was given the correct reason for dismissal and accordingly he was not unfairly dismissed.It may be that the majority were saying that he was redundant and that was the true reason for dismissal, contrary to the reason put forward by the respondent as recorded in paragraph 4. In any event, no consideration is given as to the reasonableness of the dismissal, for whatever reason the majority found, under s.98(4).The minority member took the view that redundancy (his word, not a word used by the majority) only arose on the third day. Prior to that both parties had proceeded on the basis that the reason for dismissal related to the appellant's lack of qualifications. We are left to assume from the decision that the minority member found the dismissal to be unfair. If so, he gives no reasons for that conclusion.

The Review application

Having received summary reasons which were, to put it neutrally, less than clear, the obvious course for the appellant's solicitor was to request extended reasons with a view to considering an appeal to this tribunal against the majority decision. Instead, Mrs Jones applied for a review of the substantive decision by a letter dated 12th July 1996. The basis for the application was then said to be:
"1. New evidence not reasonably foreseeable has come to light. This evidence is that the Respondents did in fact employ another person to undertake the labouring and driving jobs which were undertaken by Mr Rees in October 1995. We shall provide such evidence upon review.
2. Such evidence makes it quite clear that paragraph 15 of Mr Spence's Minority Decision is in fact correct. It is submitted therefore on behalf of Mr Rees that the interests of justice require a review."Paragraph 15 of the minority member's reasons reads:
"15 Finally, I am content that Mrs Greenshields only asserted that the end of labouring work was the reason for termination when she was made aware, on the last day of the hearing, that this line of approach would mean success for the respondent."
The appellant's solicitor was asked to give further details of the grounds for the application and replied on 24th July 1996, contending that the question of redundancy first arose on the third day, and that the appellant wished to adduce further evidence on review to show that labouring work continued to be available for the appellant after dismissal, that work being done by Mr Manger, who it was said was first taken on on 11th September 1996. We think that must be 1995.Additionally, on 2nd August 1996 the appellant's solicitors wrote to the Industrial Tribunal enclosing a hand-written statement from the appellant which related what he had been told by Mr Manger. It was said that Mr Manger was unwilling to sign a witness statement himself. The appellant sought discovery of certain documents from the respondent which had not been sought prior to the conclusion of the tribunal hearing.On 4th September 1996 the appellant changed solicitors. The new solicitors, Goldstones, in turn instructed Mr Prichard of Counsel who has conducted the appellant's case both at a preliminary hearing held on 3rd February 1997 and before us.On 16th October 1996 the Chairman promulgated his review decision with reasons.

The review decision

The Chairman rejected the application for review under Rule 11(1)(d), the new evidence provision, on the basis that the evidence relating to Mr Manger was not new evidence. Reference had been made to that person, although not by name, in the course of the appellant's evidence before the Industrial Tribunal. Further, it was apparent during Mrs Greenshields' evidence on the second day, that the respondent was saying that there was no more work for the appellant by November 1995. The documents which he required had been in existence before the Industrial Tribunal hearing and no application for discovery had been made during the proceedings.Further, he refused the application under Rule 11(1)(e), the interests of justice, on the grounds that there had been no "procedural mishap" of the type identified in Trimble v Supertravel Ltd [1982] ICR 440 . He directed himself further in accordance with Flint v Eastern Electricity Board [1975] ICR 395 , a decision of the Phillips J sitting in Queen's Bench Division on appeal from the an Industrial Tribunal, as to the need for finality in judicial decisions.

The Appeal

Mr Prichard recognises that it is regrettable that no request for extended reasons of the substantive decision was made, and no appeal launched against that decision. He has developed a powerful argument that that decision was seriously flawed. However, that is water under the bridge. We are not prepared to adjudicate on the correctness of the substantive decision. This appeal is limited to attack on the review decision.As to that, his principal submission is that there was here a procedural mishap, contrary to the finding of the Chairman, and that he fell into error in failing to order a review hearing on that ground.The first question raised is whether the issue of procedural mishap was sufficiently identified before the Chairman when he considered the review application. We accept that it was, implicitly if not explicitly in Mrs Jones' letter of 24th August 1996, when she referred to the question of redundancy arising towards the end of the last day of hearing. In those circumstances we shall entertain the submission.The way it is put by Mr Prichard is this.The respondent's form IT3 makes no mention of redundancy as a reason for dismissal. At the end of the first day the Chairman recorded the respondent confirming that their case was limited to qualifications.On the second day, as the Chairman points out in his recent letter commenting on Mrs Jones' affidavit, Mrs Greenshields said that the usual work that the appellant had been doing had concluded by November 1995. However, that was said in the context of cross-examination which followed, where on three separate occasions, she asserted that the reason for dismissal was the appellant's lack of qualifications. It was wholly unclear that the respondent was seeking to advance redundancy as the reason for dismissal. Indeed, Mrs Greenshields told us that she never used the word throughout the course of the hearing.It was only on the third day that the possibility of the Industrial Tribunal finding that the reason for dismissal was redundancy arose. Even then, it is unclear from the majority's reasoning in the substantive decision whether they found that the reason for dismissal related to capability (paragraph 4) or redundancy (a possible interpretation of paragraph 9).In this connection Mr Prichard has referred us first to Hotson v Wisbech Conservative Club [1984] ICR 859 . In that case the applicant was dismissed for gross inefficiency in failing to give an adequate explanation for a reduction in bar profits and shortages in cash takings. During the course of the Industrial Tribunal hearing the Chairman put to the employer's representative that the real reason for dismissal was dishonesty. He agreed. Without objection from the applicant's solicitor who then represented him, the case proceeded on the basis of both possible reasons. The tribunal held that the dismissal was fair on the basis of suspected dishonesty.On appeal that decision was set aside and the case remitted to a fresh Industrial Tribunal for rehearing. The Employment Appeal Tribunal held that the applicant had not been given a sufficient opportunity to answer the case based on dishonesty.That was a case in which the appeal was brought against the Industrial Tribunal's substantive decision. However, by extension, and by reference to the Employment Appeal Tribunal decision on review in Trimble v Supertravel the point is sustainable in the context of an appeal against a review decision.That proposition is further reinforced by a reference to a new issue being sprung on a party during a hearing without his being given an adequate opportunity to respond in Flint at page 403E and in Oliver vJP Malnick & Co [1983] ICR 708 , 712C.In reply, Mrs Greenshields submits that it was clear to the appellant from the meeting held on 9th October 1995 that the reason for his dismissal was that he did not have the necessary qualifications for the job as it was to be structured in future, and there was no more of his usual work for him to do.We have concluded that the submission advanced by Mr Prichard is correct on the facts of this case. The respondent's case was that the appellant's employment ended on the expiry of the Fixed Term contract. That was a dismissal. What was not clear was the reason for that dismissal advanced by the respondent. It appeared to be capability, that is the reference to qualifications. If so, the appellant was entitled to argue the case on the basis that the stated qualifications were not necessary for the work he was employed to do, that is labouring work. If the job specification was to change that did not relate to his capability to do the job he was employed to do. If the reason advanced by the respondent was not made out, the dismissal was necessarily unfair, since the question of reasonableness would not arise. That was the effect of the case pleaded in the form IT1.If the respondent's case was that there was no work of a labouring kind for the appellant to do, rather than that he was not suitable for the job as it was to be restructured, so that he was genuinely redundant, he should have been put on notice of that case. He was not. He was thereby hampered in adducing the evidence necessary to meet that case.In these circumstances we are satisfied that the Chairman erred in law in finding that there was no procedural mishap in this case in considering the application for a review. We shall therefore allow the appeal and set aside the review decision.We think that the proper course is to exercise our powers granted by s.21(1) of the Industrial Tribunals Act 1996 and direct, in accordance with Rule 11(7) of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993 , that the substantive decision of the Industrial Tribunal be set aside and the whole case be remitted to a fresh Industrial Tribunal for rehearing.For that purpose it will be necessary for the respondent to properly plead its case as to the reason or principal reason for dismissal relied upon. Any necessary application for discovery made then be made. It will then be for the new Industrial Tribunal to determine:(a) what was the reason or principal reason for dismissal; and(b) whether that reason, assuming it is a prescribed reason under s.98 of the Employment Rights Act 1996 , is a sufficient reason under s.98(4) of that Act.