KENNETH COLLINSON v CENTRAL PARKING SYSTEM OF THE UK LIMITED [1999] UKEAT 561_99_2807

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 561_99_2807Case No Appeal No. EAT/561/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
KENNETH COLLINSONAPPELLANTCENTRAL PARKING SYSTEM OF THE UK LIMITEDRESPONDENT
Before
Mr Justice MorisonLord Gladwin of CleeDate 28 July 1999
[1]APPEARANCES For the Appellant NEITHER PRESENT NOR REPRESENTED For the Respondents NEITHER PRESENT NOR REPRESENTED MR JUSTICE MORISON: This is a hearing of a review of a previous order made by the Employment Appeal Tribunal. The background to this case is as follows. The Applicant/Appellant, Mr Kenneth Collinson, presented a complaint to an Employment Tribunal alleging that he had been unfairly dismissed by his former employers, Central Parking System of the UK Limited. His complaint was heard by an Employment Tribunal held at Newcastle on 2 October 1998.[2]The Tribunal dismissed the application unanimously and in a Decision, which is headed Summary Reasons, the Tribunal referred to the surrounding circumstances, held that the Applicant was dismissed by reason of conduct, and said that the employers investigated fraudulent activities at the Carparks at Newcastle Airport in which many were involved and that they believed that Mr Collinson was implicated as he was a kiosk attendant. They indicated that Mr Collinson denied his involvement but that the Respondents were unable to believe him and he was dismissed because the employers believed on reasonable grounds, reasonably investigated, that he was indeed involved in dishonesty. The Respondent had therefore acted as any reasonable employer would in the circumstances and the dismissal was not unfair.[3]After the decision was sent to the parties, the Applicant, being dissatisfied with the result went to solicitors. It is not clear precisely when he first consulted them, but in due course very much at the last minute, they filed a Notice of Appeal dated 17 December 1998. The Tribunal's Summary Decision had been sent to the parties on 22 October 1998.[4]The grounds of appeal were that the Tribunal was wrong in law in coming to the decision it did on the evidence before it. Secondly that the Applicant, Mr Collinson, felt so intimidated by the procedure of the hearing that he was unable to give his evidence fully, and read from a pre-prepared statement. He did not cross-examine Respondent's witnesses, nor does he recall being invited to do so. He feels there were several relevant points which he did not bring up. The third ground was that the Applicant was handed a bundle of documents at the hearing and did not get a chance to read those. Blatant lies he says were stated in the bundle.[5]Under rule 3(2) of the Employment Appeal Tribunal Rules, it is stated that the period within which an appeal to the Appeal Tribunal may be instituted is 42 days from the date on which Extended Reasons for the Decision or order of the Industrial Tribunal were sent to the Appellant. The Employment Appeal Tribunal has, by a practice direction dated 29 March 1996, stated that the Notice of Appeal must, in a case of an appeal from an Employment Tribunal, be accompanied by a copy of the Extended Written Reasons for the Decision appealed against. It goes on to provide that where a request for Extended Written Reasons has been refused by the Employment Tribunal, an Appellant may appeal against that refusal and may also apply to the Employment Appeal Tribunal to exercise its discretion to hear the appeal on Summary Reasons only.[6]Having received the Notice of Appeal, to which I have referred, the Employment Appeal Tribunal in accordance with its normal practice wrote to the solicitors pointing out that their Notice of Appeal was not accompanied by a copy of the Extended Written Reasons. Attention was drawn to the case of William Hill Organisation v A Gravas [EAT/645/88]:
"in which the EAT stated that without extended written reasons, an appeal cannot properly continue and on a further upon appeal to the Court of Appeal the view of the EAT was upheld."
That letter, which was dated 11 January, would have been received in the normal course of post on or about 13 January.[7]The solicitors did not apparently communicate with the Employment Tribunal asking for Extended Written Reasons until 25 January 1999. That was considered by the learned Chairman and on 11 February 1999, the response came back that he refused to give full Extended Reasons "so long after the hearing". He then wrote very courteously indicating that if the Employment Appeal Tribunal "directs me to provide reasons", he would of course comply. As a matter of law, the Employment Appeal Tribunal does not, as we see it, have power to order a Chairman to provide Extended Reasons.[8]The solicitors for the Appellant then lodged a further Notice of Appeal by letter dated 18 March 1999, appealing against the refusal of the Chairman to give full Extended Reasons. That was a course which they were aware they could take as a result of the practice direction to which I have referred. In due time, the matter came on for a Preliminary Hearing before Altman HHJ with two lay members. The only appeal which it was competent for the Employment Appeal Tribunal to consider was the refusal by the learned Chairman to give Extended Written Reasons and to consider whether it would be appropriate to allow the appeal to proceed in any event having regard to the terms of the Summary Reasons.[9]It seems to us, and this is consonant with what was decided by the Employment Appeal Tribunal on 30 June 1999, quite clear that it would not be possible to adjudicate on the merits of the Tribunal's Decision to reject Mr Collinson's complaint by reference to the Summary Reasons only. As I have indicated, one of the grounds of appeal that is made is that the Tribunal erred in coming to the Decision that it did on the evidence before it. That would require findings of fact to be made by the Employment Tribunal together with any copies of the Notes of Evidence so that one could determine whether the conclusions of fact made by the Tribunal were unsupported by evidence or were perverse. Without the Tribunal's primary findings of fact on issues where the evidence conflicted, it seems to us clear that there could be no conclusion properly arrived at by the Employment Appeal Tribunal that the Employment Tribunal had erred in the way suggested.[10]That being so, the only issue before the Employment Appeal Tribunal was and must have been the question as to whether the Chairman was, in the exercise of his discretion, lawfully entitled to refuse to give Extended Reasons. The Tribunal's order was that the appeal was allowed and a direction given that Extended Reasons be provided in accordance with the judgment of the Employment Appeal Tribunal. I have indicated that the Employment Appeal Tribunal does not have power to direct Extended Reasons to be provided and if it orders that the appeal is allowed, it seems to us that the EAT is then functus having discharged its responsibility. It is difficult therefore to comprehend how it was that the Employment Appeal Tribunal went on to make further orders and directions in relation to a matter which, technically, was now over.[11]The Employment Appeal Tribunal has power in circumstances set out in the rules to review its own decisions where there has been manifest error. This is, in the President's experience, a rare course to take, but in common with other jurisdictions, the power to review is a valuable fall back position where the interests of justice require it because of some procedural or other mishap.[12]Following the judgment of the Employment Appeal Tribunal and the order, effectively, against the learned Chairman, we received a communication from the Employment Tribunal indicating that it was now not possible to provide Extended Written Reasons. What the Tribunal wrote and said was this:
"(a) Full oral reasons were given in the Tribunal and recorded on tape in the usual way. (b) The tape was not transcribed but was kept for 6 months [he believed].then erased. No appeal had been entered at that time. (c) It is now more than 9 months since [the Decision] was publicly stated…" whilst he had his notes taken at the hearing which he would be happy to provide to the Court, plus the 17 page proof of evidence which was typed, which the Applicant followed during the witnesses testimony, and he could produce his notes which do clearly show, he says, that the Applicant did ask questions of the Respondent's witness and gave evidence on oath and was cross-examined. He said this: "
Because of the time scale involved I would ask that Judge Altman be asked to consider whether the extended reasons can now be accurately given and should they not be replaced by notes of evidence and witness statement? Documents were submitted by the respondent, some 18 or so, but they were returned to the [employers] in the usual way long ago. I will not be able to refer to those documents other than by a number written on them I will not, therefore, be able to quote from documents or explain their content in any decision I am required to make, which is plainly a marked problem."[13]It is thus quite obvious that the learned Chairman against whom this order apparently has been made, cannot comply with it. The interests of justice demand, as it seems to us, that we should review this decision. In the first place, it was wrong to order that the appeal be allowed and then to make further orders in relation to the appeal because as I have indicated, if the appeal is allowed, the matter is then at an end and there is no purpose to be served by further orders or directions. Secondly, it seems to us now clear that this case is not going to be able to be dealt with fairly and justly in relation to any suggestion that the Tribunal has erred in law in arriving at its decision, having regard to the fact that it is a Summary Reason Decision only.[14]However, that leaves outstanding the question of alleged procedural impropriety. The paragraph of the Notice of Appeal alleges effectively that the Applicant was intimidated and felt unable to present his case or to cross-examine. It seems to us that if there was some procedural impropriety such that justice was not done at the Employment Tribunal then there would need to be a new hearing whether or not the Tribunal had produced Summary or Extended Written Reasons.[15]In those circumstances, it seems to us that the orders made by the Employment Appeal Tribunal on the previous occasion must be corrected. For the first order that was made, we simply request that that be deleted. The order should now be as specified and the final order, that is the Tribunal further directs, should be amended to read "the Tribunal further directs that upon receipt of the affidavit and the response from the Tribunal to it, the matter then be considered at a full hearing by the Employment Appeal Tribunal".[16]I want to make it plain in this judgment if it is not already clear, that the ambit of the appeal is inevitably to be confined solely to the question as to whether there has been a fair and proper hearing of the complaint. The appeal will not be concerned with the question as to whether in some way or another the Tribunal have wrongly approached the allegation of unfair dismissal or have arrived at a conclusion which Mr Collinson does not agree with. Accordingly, we make the orders indicated. This application for a review is granted and the orders made as indicated.