Gibbons Contractors Ltd v Worth [1998] UKEAT 934_98_0112

EAT

Gibbons Contractors Ltd v Worth

[1998] UKEAT 934_98_0112 · 1998-12-01

MR JUSTICE LINDSAY : We have before us appeals in the matter Mrs P C Worth against B E Gibbons Contractors Ltd. The company appeals against three decisions, in effect, and it is necessary for an understanding of the case to have in mind the procedural background.

First of all there was an Industrial Tribunal hearing on 19th March 1998 that led to a decision promulgated on the 9th April 1998 and that unanimous decision of the tribunal was that the applicant, Mrs Worth, was unfairly dismissed. Everything else was adjourned until 8th May, apart from the question of the applicant's of continuous employment. The Industrial Tribunal at that first hearing also held that there had been continuous employment of Mrs Worth from January 1977. That was the hearing of 19th March 1998.

The second hearing was on 8th May 1998 and that led to a decision that was promulgated on 20th May. That second decision went into the figures. It held that the company should have to pay Mrs Worth £1,012.26 damages for breach of contract of employment and £2,406.19 compensation for unfair dismissal. It also held that the respondents unreasonably failed to give the applicant written reasons for dismissal contrary to s. 92 of the Employment Rights Act 1996 and the Industrial Tribunal awarded Mrs Worth two weeks' pay, £152.32. At that stage there were then two decisions, one on unfair dismissal (including as to a holding of continuous employment) and then a computation of the figures that came in all to £3,770.

There was then a gap until 9th June 1998, when there was a letter from Mr Gibbons to the Industrial Tribunal and, on the same day, a Notice of Appeal by the company. Then on 25th June Mr Gibbons asked for a review by the Industrial Tribunal. On 2nd July there was the Chairman's response to that request for a review, declining it. On 3rd July Mr Gibbons made an affidavit concerning the hearing of 19th March. He took the point that the issue of continuity of employment had only been part-heard and that he was still developing his evidence on the point when the case had had to be adjourned. On 8th July Mr Gibbons expressed his dissatisfaction with the failure to review. That letter of dissatisfaction with that failure has been treated as if a Notice of Appeal against the failure to review. On 17th July the Chairman, Miss Woolley, made a full response to Mr Gibbon's affidavit. On 29th July Mr Gibbons, for the company, asked for an extension of time to appeal, and that was refused. On 17th August the company put in their PHD form. That is the procedural background to the case.

The first heading with which we need to deal is the Notice of Appeal of 9th June 1998, so far as it relates to unfair dismissal. As to that, the unfair dismissal decision was promulgated on 9th April 1998. The time fixed by the rules is 42 days from the sending of the decision. That 42 days expired around about 22nd May, and the Notice of Appeal, as we have already said, is dated 9th June 1998. So it was out of time. Then there was an extension of time requested, but that, as we have mentioned, was refused on 29th July. Accordingly, the appeal, so far as concerns unfair dismissal, is out of time and an extension has been sought and an extension has been refused. So far as concerns unfair dismissal, there can be no appeal in front of us. Mr Gibbons, who has opened the case to us, has, in effect, realised that that is the case. There is nothing we can do about that.

So far as concerns the Notice of Appeal of 9th June 1998 in relation to the subject of breach of contract, that decision was promulgated on 20th May 1998 and accordingly the Notice of Appeal of 9th June is well in time. The grounds of appeal are asserted by the company in a letter of 9th June. They seem to us to be four in number. They have not been expanded upon orally, but there was no need for it, as they are clearly enough expressed already. The first ground is that Mrs Worth had no written contract, but that does not assist the company. It does not disprove that the employers were in breach of the contract to say that she had no written contract. There can, of course, be a breach of an oral contract, or a breach of an implied contract. It does not assist the company to say that she had no written contract, indeed, as it was part of their obligation to supply her with one, if anything, it worsens their case rather than improves it.

The second point that is taken is that Mrs Worth was not unfairly but fairly dismissed. But for the reasons that we have given, that is now beyond appeal. It was decided at the first hearing and there has been no appeal in time.

The third ground relied upon was that the employer had tried to make oral communications with Mrs Worth, but that does not dispose of the finding of breach of contract.

A fourth ground is this:

"The board in their report section 3 fourth line, state "that they accept that it was the respondents breach's which caused her indecision, we refute this statement as being misleading and incorrect, as it was the applicant's inability to make herself available for work which caused her to be indecisive."

That is a point that refers to what the Industrial Tribunal had said in their paragraph 3 where they had said, apropos Mrs Worth's evidence:

"We accept her evidence that she was uncertain of her position until January 1998 when she decided she had to do something to try and find alternative employment. We accept that it was the respondents' breaches which caused her indecision. We find that that was not a failure to mitigate her loss in the circumstances which we have found."

So it is a point that goes to mitigation. Now whether Mrs Worth took adequate steps to mitigate her losses is very much a matter of fact. It is very much a matter in the particular province of the local Industrial Tribunal which hears the evidence and sees the witnesses and has local experience of conditions in the local employment market. The Industrial Tribunal held that there had been no failure to mitigate and we find no error of law in that.

We have dealt, it seems to us, with the matters raised in the Notice of Appeal of 9th June 1998 and we dismiss that appeal.

There is the second appeal, that one received on 9th July 1998. It concerns, and concerns only, the declining of a review on 2nd July 1998. The Rules in relation to review are set out in Rule 11 of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993 .

(e) says:

"Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that-

...

(e) the interests of justice require such a review."

Rule 11(4) says this:

"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 is sent to the parties and must be in writing stating the grounds in full."

As we have mentioned, the hearing before the Industrial Tribunal as to the breach of contract was promulgated on 20th May 1998 and the request for a review was on 25th June 1998, and so the request was out of time. Also the request for a review stated no grounds for a review, it was simply a bald request that the decision be reviewed. It seems to us that the Chairman had no choice but to decline a review. The Chairman refers to both those points in her decision sent to the parties on 2nd July 1998. She says:

"The respondents have not given any grounds for reviewing the decisions of the Tribunal promulgated on 9 April 1998 and 20 May 1998. I treat their application as being on the grounds that the interests of justice require a review. The respondents have not given any reasons for the delay in asking for a review of the decision promulgated on 9 April 1998."

Moreover, although perhaps unnecessarily, the Chairman concluded:

"It is not in the interests of justice to allow a review for the purposes of a party rehearsing evidence and arguments which have been rejected or which could have been raised but were not."

It can hardly be an error of law to treat the time limit specified as if they are indeed applicable, which is what the Chairman seems to have done. We find no error of law in her decision.

Accordingly, we have already dealt with the first Notice of Appeal and, turning only to the second Notice of Appeal (bearing the date 8th July 1998, and received on 9th July) we must dismiss that one also. Taking both appeals together, we find no error of law and accordingly must dismiss the Gibbons' Appeals.