Egan (t/a Roe Acre Service Station) v Crompton [1997] UKEAT 1409_96_2002

EAT

Egan (t/a Roe Acre Service Station) v Crompton

[1997] UKEAT 1409_96_2002 · 1997-02-20

JUDGE PUGSLEY :

This is a case listed for a preliminary ex parte application, the purpose of which is to see whether there is an error of law which can be detected in the decision of the Industrial Tribunal. The appellant has not attended this hearing.

This case has a history to which we should advert. As long ago as 1994 an Industrial Tribunal determined that the applicant had been unfairly dismissed and that she was entitled to a sum in excess of £5,000. The respondent employer sought a review of that decision which had been promulgated on 25th May 1994, and the Chairman of the original tribunal allowed the review concerned with an issue as to the amount of compensation payable to the applicant. However, the Chairman refused to review in that it purported to raise other issues and call a Ms O'Reilly an employee of the respondent. The employer appealed that decision to the Employment Appeal Tribunal with the result that the tribunal was directed that the review should allow the admission of the further evidence. That review hearing took place on 9th April 1996 and the unanimous decision of the tribunal was that the earlier decision of the tribunal dated 30th August 1994 be varied to provide that the sum payable to the applicant to be £3,543.90. It is to be noted that in paragraph 17 of that decision the tribunal say as follows:

"17. The Tribunal, however, accepted the evidence of Mr Egan that his business had ceased operations on 19 March 1994 and also concluded that there was no evidence whatsoever with regard to whether the applicant might have been taken on by Esso Petroleum Limited who had then retaken the license and had control over the petrol station. The Tribunal also accepted that there should be deducted from the amount of compensation earlier awarded to the applicant the sum of £733 which clearly had been paid to her by the respondent on termination of her employment as this had not been taken into account in the calculation of the compensatory award at the earlier hearing. Accordingly, the Tribunal unanimously concluded that the Decision of the Tribunal that the applicant had been unfairly dismissed by the respondent should not be varied but the amount of compensation payable by the respondent to the applicant as expressed in the original decision should be varied to provide that the sum of compensation should be £3,543.90 ..."

So the effect of that was that the award of £5,476.90 was reduced to £3,543.90.

In the course of their decision as to their original view that the applicant was unfairly dismissed, the tribunal in paragraph 16 said:

"... In all respects the Tribunal unanimously found the evidence of Mrs O'Reilly entirely unreliable and not credible."

Thereafter by a letter dated 31st May 1996, the respondent's solicitor in the tribunal, the appellant in this case, who it seems is the brother of the respondent, applied for a review. They complained that although the decision is date-stamped as being sent to the parties on 10th May 1996, they have not received it at that time. The decision was eventually received by fax dated 20th May 1996 after several requests had been made to the tribunal staff. They go on to say this:

"The grounds for this application are as follows and limited only as to the calculation of the Compensatory Award;

The Applicant was awarded compensation under this head of £150.00 per week for 18 weeks from 29 November 1993, the date of dismissal, to 19 March 1994, the date on which the Tribunal determined that the business of Mr Egan had ceased trading. Deducted from this figure was a payment agreed as already made by the Respondent of £733.00.

The Tribunal in Paragraph 17 of its decision stated that they accepted that " there was no evidence whatsoever with regard to whether the applicant might have been taken on by Esso Petroleum Limited who had then retaken the license and had control over the service station." The result of this conclusion was that the Tribunal varied the original compensation order and restricted loss to the date upon which the business had ceased trading rather that the date of the original hearing of the matter in August of 1994."

The tribunal rejected it for the reasons set out in their decision heard on 28th August 1996, but somewhat surprisingly in view of the brevity of the decision not promulgated until 25th October 1996.

The basis of the decision is that Rule 11(4) of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 , clearly states:

"4. ... any Application for Review must be made within 14 days from which the Tribunal's Decision was sent to the parties. The Tribunal Decision clearly showed that it was entered in the Register and sent to the parties on 10 May 1996.

Furthermore, the respondent or his representative had in any event received the Tribunal Decision on 21 May 1996 but still failed to lodge the Application for Review by 24 May 1996 and consequently the Application for Review was lodged out of time and the Tribunal should therefore not grant such Application for Review."

The tribunal go on to say:

"5. ... it had been reasonably practicable for the Application for Review to have been lodged within the prescribed time limits after receipt by the respondent or his representative of the Tribunal Decision on 21 May 1996."

From that decision the respondent employer has appealed. One of the letters, presumably drafted by the solicitor, says:

"The Appellant therefore submits that the Tribunal erred in law in finding that the provisions of s11(4) of Schedule 1 to the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993 require that any application for review must be made within 14 days of the Decision being notified to one of the parties notwithstanding the fact that the other party to the proceedings was not notified until later."

If in fact one looks at the Rules themselves the actual wording of s.11(4) refers not to being notified but to the document being sent to which it says:

" (4) An application for the purposes of paragraph (1) may be made at the hearing. If no application is made at the hearing, an application may be made to the Secretary at any time from the date of the hearing until 14 days after the date on which the decision was sent to the parties and must be in writing stating the grounds in full."

In Regulation 15 of Schedule 1 it is provided:

" 15.-(1) A chairman may on the application of a party or of his own motion extend the time for doing any act appointed by or under these rules (including this rule) any may do so whether or not the time so appointed has expired."

We have to say we think as there was a hearing, it might have been advisable for the tribunal to give its determination of the merits of whether they refused the review. But we do consider that this tribunal who were seised of the matter throughout does have a discretion in the matter. It chose not to advert to the fact that it could extend the time but we are sure was aware of the power. It is right that the respondent employer received it effectively on the Tuesday and had a certain time in which to get an application for review back.

At the end of the day, certain matters should be stated. There is a public interest in finality. It is alleged, and we do not comment on the allegation, that the employer has indicated that he does not intend to pay. What, however, is quite clear from the hand-written note to this tribunal that he still does not accept the decision of the tribunal:

"I am dismayed that Mrs Crompton can win a case based on "lies told under oath" and the Manchester tribunal seem hell bent on allowing this unfair situation to continue."

He encloses a further letter dated 2nd June 1996 in which he seeks to deal with other matters. The review was solely limited to the issue of compensation and therefore in these circumstances we feel that the only way we can deal with the matter is to say that we refuse the application. No issue of law arises which justifies this matter being pursued at a full hearing.