Pandya v Cherub Ltd [1997] UKEAT 28_97_2107

EAT
Pandya v Cherub Ltd
[1997] UKEAT 28_97_2107 · 1997-07-21
MR JUSTICE KIRKWOOD : Mr Pandya makes an application to us this morning in what we take to be the following circumstances.On 6th June 1994 he began work as a quality controller with Cherub Ltd. The terms of his employment were set out in a letter of 25th May 1994 and included a term as to one month's notice.On 10th August 1995, that is to say 14 months later, he was given one month's notice which as we understand he was not required to work out and he was given a month's salary in lieu.He applied to the Industrial Tribunal complaining that he had been unfairly dismissed and that he had been made redundant. Both those matters appear in his form IT1.On 22nd April 1996 the Industrial Tribunal found unanimously that it did not have jurisdiction because the applicant had not been continuously employed for a period of two years.On 7th October 1996, on an application for review, the decision was varied as to the terms in which it was drafted by making explicit that Mr Pandya did not have the right to make a claim for unfair dismissal, or the right to a redundancy payment, because he had not been continuously employed for a period of two years.On 21st October 1996, Mr Pandya's appeal was heard in his absence by the Employment Appeal Tribunal. Judge Byrt QC sat with two experienced industrial members. Mr Pandya tells us that he did not attend the hearing of the appeal because he went to a lecture.The short judgment of the Employment Appeal Tribunal shows that the appeal had to be dismissed because of the effect of the legislation, which provides that an application in respect of unfair dismissal depends upon continuous employment of not less than two years.It may be, and it is not entirely clear to us, that Mr Pandya has or is seeking to appeal against that decision to the Court of Appeal. However that may be, on 24th January 1997 he made written application to the Employment Appeal Tribunal for a review of that decision. That application for a review was refused by an Order of 19th March 1997.On 7th April 1997, the Employment Appeal Tribunal, in the exercise of its powers under Rule 33(1) of the Employment Appeal Tribunal Rules 1993 , amended the Order of 19th March 1997 by specifying the ground upon which the application for review had been refused, namely that it had no reasonable prospect of success.

(a) of the Employment Appeal Tribunal Rules 1993 which reads:

"33.-(1) The Appeal Tribunal may, either by its own motion or on application, review any order made by it and may, on such review, revoke or vary that order on the grounds that- (a) the order was wrongly made as the result of an error on the part of the Tribunal or its staff;"
It is plain that the tribunal exercised its power to make the amendment, because there was an error in that the Order of refusal did not specify the ground of refusal, namely that the application had no reasonable prospect of success.So Mr Pandya comes to us.It is quite clear that Mr Pandya is extremely troubled by the fact that his claim did not succeed, and by the fact that he has been so far unsuccessful in securing a satisfactory further post. He has, he told us, written about his dilemma and his anxieties to people in the highest and most influential positions in the land.Judge Byrt dealt with the legal position in the judgment to which I have referred, the judgment of 21st October 1996, of which Mr Pandya has a copy. I summarise. S.54 of the Employment Protection (Consolidation) Act 1978 says:
"(1) In every employment to which this section applies every employee shall have the right not to be unfairly dismissed by his employer."
S.64 the Act says:(1) ..., section 54 does not apply to the dismissal of an employee from any employment if the employee-(a) was not continuously employed for a period of not less that two years ending with the effective date of termination, ..."Mr Pandya seems to us to think that that does not apply to him, because he then goes on to consider s.64(1)(b) which relates to the disapplication of s.54 in certain cases to do with the attainment by the employee of a retirement age, and he says that he has not attained the retirement age, so that does not apply to him.Mr Pandya seems to us to continue to be exercised because he cannot or will not appreciate that it is s.64(1)(a) that disentitles him to the unfair dismissal claim, as found by the tribunal and by the Employment Appeal Tribunal in Judge Byrt's decision.We are not at all sure what it is that Mr Pandya is asking us to do. There is in fact nothing we can do to help him. I have set out these few words about his application so that he can, if he wishes, carry them away and reflect upon them with himself. I do that in the light of his anxiety expressed to us, that in certain instances he is not had to hand reasons given for decisions in his case. The fact is, and I must make this absolutely clear, that the remedies possibly available to Mr Pandya in the Industrial Tribunal and the Employment Appeal Tribunal are now exhausted in regard to that employment of June 1994. There is nothing further the Employment Appeal Tribunal can do for him. We cannot reform the law as he would wish; we cannot assist him to get a job as he might hope; the avenues available here are exhausted and that must be the end of his litigation before the Employment Appeal Tribunal.