Munro v London Borough Of Sutton [1998] UKEAT 400_98_0103

EAT
Munro v London Borough Of Sutton
[1998] UKEAT 400_98_0103 · 1998-03-01
MR JUSTICE MORISON (PRESIDENT): This is a most unfortunate case as its history will reveal. An Industrial Tribunal held at London (South), after a five day hearing dismissed the Applicant's complaint. He had alleged unfair dismissal and that he had been selected for redundancy for an inadmissible reason. That complaint was brought by Mr Munro, the Applicant, against his former employers the London Borough of Sutton.The decision was sent to the parties on 7 May 1996, and Mrs Munro, who has been acting throughout for her husband, filed a Notice of Appeal on his behalf and the matter came before the Employment Appeal Tribunal on 14 July 1997 following a Preliminary Hearing. The Employment Appeal Tribunal were satisfied that the Industrial Tribunal had erred in law. The error of law that was identified was what they said in paragraph 10 of their decision.Mr Munro had worked for the Council as an experienced and trained fitter. He was also active in his Trade Union; was appointed Secretary of the Local Branch and subsequently became Convenor. As a Convenor he was required to spend all his working hours on union business. This was of assistance to the employers, because the joint Secretary of the Local Joint Works committee and convenor played an important role in the Council's dealings with the employees at a sensitive time during compulsory competitive tendering.In paragraph 10 of the Industrial Tribunal's decision the Industrial Tribunal found that Mr Munro was not redundant within the definition of Section 81 of the Act:
"..... It cannot be said that the Respondents' requirement for employees to carry out the work of a convenor, the job the Applicant had been doing for a number of years prior to the AGM on 9 September 1992, had ceased or diminished when (named individual) was doing exactly the same job."
Mr Munro lost his job "as a convenor" as a result of a union election, when the named individual was elected in his place.The Employment Appeal Tribunal came to the conclusion, after argument, that this was simply a case of secondment of a man who was employed as a skilled fitter, and that he remained at all times employed by the Council as a skilled fitter, and that that was the position when his secondment came to an end.Accordingly, they remitted the matter back for a re-hearing before an Industrial Tribunal. No doubt in order to try and narrow the issues between the parties, there was a Directions Hearing, attended by Mr and Mrs Munro and Miss Weekes of Counsel, who has represented the London Borough of Sutton throughout.At that Directions Hearing the learned Chairman effectively directed that evidence prior to September 1992 was not relevant for the Industrial Tribunal to consider at the re-hearing. Mrs Munro having received that ruling, immediately protested and invited the Industrial Tribunal to review their decision. She received no response to her letters which were sent. The Tribunal reconvened on 23 and 24 February and the employer's case had been presented; they called two witnesses, one of whom was largely concerned with the events which occurred after September 1992. The Applicant, who is the Appellant here, has called one "expert" witness and has started to call the evidence of Mr Munro.The appeal against the Interlocutory ruling by the Industrial Tribunal Chairman has come before us and it is Mrs Munro's case that in order to understand the nature of the allegation that is being made in this case, she should be entitled to lead evidence as to what happened to the workshop, and to Mr Munro, from about 1987 onwards. She says, in effect, that the effect of the Tribunal's direction was to stifle her opportunity to win on the issue, which is that Mr Munro had been dismissed for an inadmissible reason.It seemed to us, initially, that it would be much better if the present re-hearing was to reach its natural conclusion when we could then review that decision, and if there were an appeal against the decision, we could decide what, if anything, to do.Miss Weekes submitted to us that in the light of concessions which were openly made on behalf of the Council, namely, that in the light of the Employment Appeal Tribunal's findings, Mr Munro remained a vehicle fitter and that his job was still available to him on the termination of his secondment in September 1992, there was no need for any examination of any evidence prior to September 1992. She submitted to us that the right course would be for the Industrial Tribunal to finish its task.We were minded to take that course when the Employment Appeal Tribunal raised the question as to whether it would be better to pursue that course on the one hand, or, to have a fresh start before a newly constituted Tribunal on the other. The formal position is that the parties do not consent to the course which we now propose but both of them seem content with it and indeed, it seems to us, that both of them would consider it to be preferable than the unattractive option of continuing with the existing proceedings with the sure prospect that there will be an appeal in due time.The course that is proposed is that there should be a new start to these proceedings before a freshly constituted Tribunal, who will wish to determine the questions at issue identified by the Employment Appeal Tribunal in its judgment of 14 July 1997, without any further identification of the issues or constraints on the way such a re-hearing should occur. I should add that that is subject only to one point, which is that whilst it had been the Munro's case that there was a distinction to be drawn between the election of a Branch Secretary on the one hand and the job of Convenor on the other, so that the determination of the Branch Secretary's position did not affect the Convenor's position, that contention is no longer tenable in the light of Employment Appeal Tribunal's decision and will not be an issue for the new Tribunal.It seems to us that this is a most unsatisfactory position for the Employment Appeal Tribunal. Faced with the option of continuing with the present proceedings arguably going awry as they may be, or to have a fresh start, the least unattractive option is to order a fresh start.Accordingly, we direct that the present proceedings should come to an end. That the hearing of the re-hearing directed by the Employment Appeal Tribunal on 14 July 1997 should take place before a freshly constituted Industrial Tribunal; that we should invite the Regional Office of the Industrial Tribunals to fix a five day hearing for the purposes of this case; that meanwhile we give directions as follows: within forty-two days there be an exchange of witness statements and that the parties will be allowed to call at the hearing any witness whose statement has been exchanged, but not otherwise; and that within the same period of time the parties agree the bundles of documents to be presented to the Industrial Tribunal. It would be helpful if the newly constituted Tribunal had time, before the parties appeared, to read the background documentation. We are sure that if they get that opportunity the actual hearing of the case will be of limited duration and there is no need for the witnesses to read their statements if they have already been read by the Industrial Tribunal.We repeat our expression of regret at this course, but on balance have been persuaded that it is the right thing to do. Accordingly we make that order.The formal order is that the appeal be allowed and the case remitted to a freshly constituted Tribunal for a re-hearing in accordance with our directions.