Unwin v Sackville School & Anor [1997] UKEAT 568_97_3007

EAT
Unwin v Sackville School & Anor
[1997] UKEAT 568_97_3007 · 1997-07-30

JUDGE J HULL QC :

This is an appeal to us by Mrs Judith Unwin. The Respondents to the appeal, who do not appear here today, are the West Sussex County Council and the school for which she worked, or does work, the Governors of Sackville School.Mrs Unwin was first employed in 1986 or 1987 as a teacher at this large school which is near or in East Grinstead, Sackville School. She is (if I may respectfully say so) a lady of the highest intelligence and education. She teaches at a fairly advanced level not only mathematics, but also law. She instructs apparently in physical education and she also takes remedial classes. She does all these activities on a part-time basis.Unhappily, after various events which we cannot concern ourselves with (for reasons which I will explain) on 7 September 1994 she presented a complaint to the Industrial Tribunal complaining of sex discrimination and harassment and also complaining that she was not paid equal pay. She invoked European Economic Community Law in her favour. The Respondents, in their Notice of Appearance on 3 October 1994, denied these charges against them and the matter, therefore, had to be tried by the Industrial Tribunal.The Industrial Tribunal sat under the chairmanship of Mr Cowling, with two industrial members, at Brighton. They devoted an extraordinarily long time to going into the complaints which were made. They sat for 3 or 4 days in September 1995. They sat for another 3 or 4 days in January 1996 and then, finally, for 3 or 4 days in June 1996. We have particulars of at least 10 days of the sitting and the Applicant, Mrs Unwin, says that it was a total of 12 days which they devoted to the hearing.At the end of that time there fell another long pause and it was not until 12 December 1996 that the decision was actually promulgated and sent to the parties. We have seen the decision for the first time this morning. It is a very long and careful decision. We are not concerned to say whether it is correct or not. It goes on for 12 pages and 49 paragraphs. We are also told, by something we have read in the papers, that unhappily the Chairman had injured himself and was away sick for some time. That at any rate explained, in part, the delay in giving the decision and one has to remember, of course, it is not the Chairman's decision only. He may act as the draftsman and normally would be expected to, but the members themselves have to be consulted and after such very long hearings as these, it may very well be that a good deal of time had to be devoted to consultations.The decision eventually was produced and the complaints made were dismissed and long reasons were given for that. Certainly, not all of those are matters which Mrs Unwin agrees with. Apparently (and we, of course, rely on which she tells us about this) Mrs Unwin was minded to appeal against this decision and instructed Solicitors and Counsel to advise her. But apparently, notwithstanding that only six weeks are allowed for appealing, her adviser (we understand it was Counsel) did not provide his opinion until 41 days had elapsed and it therefore appeared to be too late to appeal.Mrs Unwin said she only realised more recently that she could have applied for an extension of time; or more obviously, if she had been properly advised, what she could have done was to file a Notice of Appeal, which might not have sufficient particulars in it, and then seek leave to amend it, which is far more easy to obtain, showing everybody, particularly the Respondents and this Tribunal, that she did mean to appeal and was prepared to take the step of giving a Notice of Appeal even if she had not been fully advised at that stage. That, she did not do, but being out of time to appeal formed the view that there was nothing more she could do about that matter.Time was now running on and she was told that instead of appealing, she could apply to the Industrial Tribunal to review their decision and she wrongly thought, either as a result of advice which she received or for other reasons, that she could in that way make the Tribunal see the error of their ways. She could complain to them that they had taken a quite inordinate time over their decision which inevitably would mean, she says, that memories became dim and it was an unsatisfactory decision. She could complain of other errors which the Tribunal had made and so she did apply to the Industrial Tribunal to review its decision. First, in a letter which is with our papers at page 3 on 13 March 1997 she made a request for a review and then, on 31 March, a letter at page 7, she renewed her request. Looking at those letters, they are circumstantial letters criticising various matters and it is right to say that, in our view, as in the view of the Industrial Tribunal Chairman presently, they were matters which would have, at any rate, given rise to the possibility of an appeal. They were complaints about the Industrial Tribunal's decision and the way in which they had conducted the hearing.So what was the Industrial Tribunal Chairman to do? He has power to reject an application for a review on the ground that, in his opinion, it has no reasonable prospects of success and that is exactly what he did do. He did not content himself with saying that it had no reasonable prospect of success. Many Chairmen would do so, but he very sensibly and reasonably gave reasons for his decision. They are at page 10. He says as follows:
"1. This is an application by the appellant for a review of the decision herein, sent to the parties on 12 December 1996. The undated letter from the applicant to the Industrial Tribunal, received at the Office of Industrial Tribunals on 13 March 1997, has been treated as an application for review on the grounds that the interests of justice require a review.
2. Under Rule 11(4) parties can apply for a review of a Tribunal decision at the hearing itself. If the decision is reserved or if no such application is made then there is a time limit for applications, which should be made to the Secretary of the Tribunals, of 14 days from the date when the decision is sent to the parties. This application has been received three months after the decision was sent to the parties. The application is out of time.3. The power of Industrial Tribunals to review their own decisions is strictly limited in scope and confined to five specified grounds. Rule 11 of the 1993 Regulations provides for strict conditions to be satisfied.4. The review provisions are not intended to provide parties with the opportunity of a re-hearing at which the same evidence can be rehearsed with different emphasis or further evidence adduced which was available before. The power to review must be cautiously exercised. The facts in this case cannot be viewed as a procedural mishap such as to constitute a denial of a fair opportunity to bring or defend a claim. There is a public interest in the finality of proceedings. In this case the applicant decided not to appeal. Having carefully considered the present application under Rule 11(5) I refuse the application for review on the grounds that it is out of time and that it has no reasonable prospect of success."That was a matter for the Industrial Tribunal Chairman. It is his discretion and not ours to say that he will not hear it because it is out of time. It was also up to him to decide whether matters were being put forward which could justify a review, or whether they were, in fact, matters which plainly were matters about which an appeal should be brought against the Tribunal's decision. As I say, it is his discretion and his judgment and not ours, but the appeal to us is against that decision of the Tribunal; not the original decision to dismiss the applications, but the decision to dismiss the application for a review. That is all that is before us and that is why I had to remind Mrs Unwin repeatedly, when she was going through it with us, that we could not go into the merits of the original decision and had to concentrate our attention on the refusal of the review.It is quite plain to us that Mrs Unwin has, through various events which have happened and through misunderstandings (partly her own failure to understand the law which, as I said to her, is not a matter of any blame whatever) partly through, apparently, advice which she has been given, partly through the way she has been served by those who have tried to help her, fallen neatly between two stools. First of all she wished to appeal the decision. That, if she could discover a point of law which she could appeal, she could of course do, but unfortunately she fell out of time for that. So then she concluded that the right course to take, again being advised, was to apply for a review. If she was out of time to appeal the decision, she was emphatically much more out of time to apply for a review. So she has fallen between two stools. Her application to us today is in its essence an application to appeal the original decision, but that she has abandoned; that she cannot do. So she is now appealing against the decision of the Industrial Tribunal to refuse a review. That is all we can consider. It is a matter of discretion for the Industrial Tribunal. We can only consider matters of discretion, if it is shown quite plainly that there is an error of law made in the exercise of the discretion.Here, we ask ourselves, is there any error of law shown in those reasons which I have read? On the contrary, not merely do they show no error of law, they are impeccable, they are quite plainly reasons which the Chairman was obliged to reach and which he gave voice to. Is there any error of law in the way the discretion has been exercised? It was the Chairman's discretion and we can only intervene, not in the exercise of our own discretion, but because he has gone wrong in law. On the contrary, we think it would be quite extraordinary if the Chairman had felt able to entertain and put before his Tribunal an application for a review which was two and a half months out of time, particularly one which was so, in his view, ill-founded. And therefore, having heard what is said to us by Mrs Unwin, we have all come to the conclusion, with regret, that this appeal to us too is without any foundation on which it could possibly succeed.No error of law is shown. The statute which creates our jurisdiction says, in terms, that we can entertain only appeals on grounds of law, not (that is to say) any grounds of fact or grounds of discretion.So in those circumstances the appeal can go no further and we have to say that the appeal must be dismissed at this stage.