MR F CASTEL v DILLONS THE BOOKSTORE [1999] UKEAT 267_99_1706

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 267_99_1706Case No Appeal No. EAT/267/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR F CASTELAPPELLANTDILLONS THE BOOKSTORERESPONDENT
Before
His Honour Judge J Altman Mrs R ChapmanLord Davies of CoityDate 17 June 1999
[1]APPEARANCES For the Appellant MR A TWUMASI (Representative) JUDGE ALTMAN : We turn now in this case to the application for a review. The decision of the Employment Tribunal was promulgated on 20th January 1999. Indeed, before that and after the decision was given, on 13th January 1999 the appellant applied for a review of the decision setting out in written form over some five or six pages the grounds upon which such a review was sought, also dealing with the threatened claim for costs.[2]In due course the appellant was successful before the Employment Tribunal in avoiding an Order for costs. We only say in passing that bearing in mind the many allegations of bias that have been made against the Chairman and the members of tribunal, it is perhaps worth bearing in mind that the appellant did not end up having to pay any costs.[3]On 20th January 1999 that the decision on the application for a review was promulgated. It is in the following terms:
"DECISION ON AN APPLICATION FOR A REVIEW The Chairman has considered carefully your application for a review of the above case. The application is refused on the grounds that it has no reasonable prospect of success."
Nothing more is stated. No reasons are given for that decision.[4]Rule 11(5) of the Employment Tribunal Regulations, which provides the power on a tribunal to review its decision says this:
"An application … may be refused … by the chairman of the tribunal which decided the case … if in his opinion it has no reasonable prospect of success."
That is the only ground.[5]It follows that that decision in that bald standard form simply reiterates the position in law and states the only ground on which a Chairman can refuse an application for review.[6]The Employment Appeal Tribunal has to approach interlocutory decisions such as this in exactly the same way as it approaches a final decision. It must, if it is asked to do so, decide if on the reasons given by a tribunal there has been disclosed to be an error of law. Where, as here, no reasons whatsoever are given, the task of the Employment Appeal Tribunal is very difficult. There are, of course, possible arguments that a failure to give reasons for a decision should in itself be a ground of appeal. We do not go so far as that in this case, but we would simply request that the traditional way of dealing with an application for a review is maintained. That is, to explain sometimes in only one or two sentences the reasons for such a decision if it is refused. Not only does that enable the Employment Appeal Tribunal to access the case, it enables the parties to know the reason and it also enables the parties to feel that real consideration has been given to the application rather than to leave them with the impression, which we consider is inevitable from a document such as this, that it has simply been dealt with by way of a standard response. We are sure that that is not what happened in this case. We have no doubt that the Chairman gave consideration to the application. To express reasons enables the parties to know that that is what has happened.[7]We have looked at the application for a review and essentially it misunderstands, it seems to us, the nature of a review. Indeed, it complains that the same Chairman considered it because the appellant was dissatisfied with it.[8]Putting it very loosely, as it seems to us, "the interests of justice" which require a review are within the context that there should be finality in litigation; that once a tribunal has reached its decision that should generally be the end of it; that it would only be if something new, something different, some fundamental misunderstanding had taken place which required correction, that would one return to the same tribunal and say, for instance "Hey, you thought that, but so and so has happened" or "I am sorry you have misread this" or "you have lost this" or "you have got it in the wrong order" in a way which would enable the tribunal, without feeling any embarrassment, to look again and correct their decision. That is the context, a very narrow context, in which this particular rule applies.[9]We do not think that that is really what was meant in this application for review. What was meant was "the tribunal got it wrong. They were wrong to an extent they may have been biased and we want someone else to hear it again." That is not what this procedure is for.[10]Four matters have been raised before us. First, we are told that the Chairman was, in the words that have been put, continually throwing a blanket statement that unreasonable behaviour is not a ground for appeal since a particular case or a year. We do not understand that proposition. It is meaningless to us. It is obviously meaningless to the appellant and his advisors. It does not appear in the decision as a statement. Accordingly, whatever was said it does not seem to us to apply to the decision in this case.[11]Secondly, it is said that the tribunal was demonstrating discrimination and should have interpreted the letter, which suggested that the management posts were not appropriate for the appellant. I have already dealt with that in the context of our judgment on the appeal (EAT/272/99).[12]Thirdly, it is said that the tribunal failed to take account of matters that it ought to have taken account of and acted unreasonably thereby. Specific matters, I hope, have now been dealt with in the judgment on the appeal (EAT/272/99). It is not an appropriate application for a review.[13]Fourthly and finally, it is said that the tribunal erred in saying that their decision might have been different if these men had been required to work together because they did work together for some five days afterwards. That is an error of fact quite clearly on the statement of facts by the Employment Tribunal. However, they also found, as we have already determined, that the discriminatory remark by Mr Humphreys was not said. For the sake of completeness I revert to the paragraph in the substantive decision, in paragraph 12, it relates to the question of safety and that, had they carried on working together, then there may have been a continuing breach of health and safety. The tribunal said that in:
"… the immediate aftermath of this incident Mr Castel went sick … Mr Alec Humphreys and Mr Castel working together again never arose again …"
So although there was five days together, essentially they did not work together after that. It seems to us inevitable that even had the tribunal adverted to that error, they would have concluded that there was no continuing breach of health and safety.[14]In any event, it does not seem to us that those matters could ever have been a proper subject for review.[15]Accordingly, whilst it is unfortunate that the decision of the tribunal was expressed in the way it was in response to the application for a review, we have looked at the matters which were sought to be considered by way of review, and we are driven to the conclusion that no tribunal, properly directing itself, could conclude that those were matters which fell to be dealt with by way of review, as that is understood in Employment Tribunal procedure. Those were matters for consideration on appeal. That is exactly what the appellant sought to do. We have sought to deal with it. We know we have done so contrary to his argument, we appreciate that, but that was the proper forum for the matter to be debated as it has been.[16]Accordingly, we are driven to conclude that on the preliminary hearing that there is not a point of law arising from the appeal from the refusal of a review to merit this matter being argued in full before the Employment Appeal Tribunal. It is dismissed at this stage also.