MR S FORBES v CHURCHILL COLLEGE [2000] UKEAT 1038_99_1503

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1038_99_1503Case No Appeal No. EAT/1038/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S FORBESAPPELLANTCHURCHILL COLLEGERESPONDENT
Before
His Honour Judge CollinsDate 15 March 2000
[1]APPEARANCES For the Appellant Simon Wood (of Counsel) Lamb Chambers Lamb Building Elm Court Temple London EC4Y 7AS For the Respondent Jennifer Rigby, Bursar Churchill College Storeys Way Cambridge CB3 0DS JUDGE COLLINS : This appeal raises a question of construction of the Employment Tribunals (Constitution etc) Regulations 1993 which is some of general importance as to the power of a chairman sitting alone to review his own decision.[2]The basic facts are that Mr Forbes is a pastry chef employed by Churchill College, Cambridge. He took either 3 or 4 days holiday more than his entitlement. He was paid for those days. When the college discovered it they recouped the relevant sum of £183.74 out of his wages. He commenced an application before the Employment Tribunal based on unauthorised deductions. The matter was one which fell within s4(3)(d) Employment Tribunals Act 1996 as being one which the chairman could hear alone, unless he decided otherwise for a reason set out in ss5.[3]It is hardly surprising that the chairman, Mr Ash, proceeded to hear this case alone. In absolute terms it is extremely small and he was statutorily entitled to do so. It does not appear from the papers that he specifically articulated the question of whether or not he should exercise his discretion under ss5 to order that the case should be heard by a full tribunal, but we do not consider that that in anyway impinges on his statutory entitlement to hear the case. Mr Ash heard the case on 4 May 1999 and his extended reasons were promulgated on 24 May. He decided that Mr Forbes took 4 days more holiday than he was entitled to. He decided that the college was entitled to recoup that money and he decided in particular that there was no evidence of an established practice that holidays could be carried over. Mr Forbes was dissatisfied with that decision and applied for a review. On 7 July a hearing took place before Mr Ash. Mr Forbes was in person and Mrs Rigby, the Bursar of the college who is present today, appeared for the college.[4]The decision of the tribunal is expressed in this way: - "The decision of the Tribunal is that the application for leave to review the decision of the Employment Tribunal promulgated on 24 May 1999 is refused." In paragraphs 1 to 6 of his short extended reasons Mr Ash explains why he does not think any review is required and in paragraph 7 he says: - "I am satisfied that the interests of justice do not require review and leave is not granted."[5]Now the short point on this appeal is in our judgment that the appeal is misconceived. The appeal proceeds on the basis that Mr Ash did in fact conduct a review hearing and it is argued that he had no power to do so alone. The jurisdiction of the tribunal to entertain a review is set out in paragraph 11 of Schedule 1 to the Employment Tribunals (Constitution etc) Regulations 1993. Paragraph 11(1) gives the tribunal power to review its decision in 5 separate situations, which are set out and paragraph 11(5) says: - "An application for the purposes of paragraph 1 may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success."[6]It is quite clear to us on a proper reading of Mr Ash's decision that he thought that a review had no reasonable prospect of success and accordingly refused the application for one under 11(5). We say that because that is what the decision says in terms and also because it is reiterated in paragraph 7. Mr Wood has conceded that if that is an accurate analysis that is the end of this appeal and it is indeed misconceived.[7]But the chairman proceeded to consider an argument which had been raised as to the effect of paragraphs 11(6) and 13 (8)(c) of the regulations and took the opportunity to point out to the learned editors of Harvey on Industrial Relations and Employment Law that they had construed these regulations incorrectly. And it happens that in the most recent update of Harvey, they appear to have taken note. Paragraph 13 (8) says: - "Any act required or authorised by the rules to be done by a tribunal may be done by a chairman, except [a) and (b) which are immaterial] (c) the review of a decision under rule 11(1)." And 11(6) provides that if the application for review is not refused and carries on to a hearing, it shall be heard by the tribunal which decided the case or(a) [being immaterial](b) where the decision was made by a chairman acting alone under 13 (8) by a tribunal appointed by either the President or a Regional Chairman.[8]Mr Ash pointed out that when he heard the original case, he was not acting under paragraph 13(8). He was acting by virtue of section 4 of the Employment Rights Act 1996, which gave him jurisdiction. He expressed himself strongly by saying that the whole notion of a review was that the tribunal making the original decision should review its own decision, except where 11(6) says that an alternative course is possible or mandatory. He says not only was it inappropriate for anybody else to hear the review, nobody else was entitled to hear the review. Mr Wood emphasises that the clear wording of paragraph 13(8) gives force to the contrary argument, because whatever the source of the chairman's jurisdiction he was being asked to conduct a review under paragraph 11(1). I ought to refer to the way that Harvey now puts it at section T paragraph 1126:
" a distinction is to be drawn between decisions which are made under rule 13(8) and those made as a result of the enlarged powers granted to chairmen to act alone under the Employment Tribunals Act sections 2 and 3. Decisions made under rule 13(8) relate to those matters in respect to which chairman have power to act alone by virtue of the rules as for the example the power to hear and determine an issue relating to the entitlement of an party to bring or contest proceedings under rule 6. Where a chairman sits alone to hear such a matter, he is prevented by rule 11(6)(b) from reviewing his own decision. On the other hand, where a chairman sits alone to hear proceedings, (i.e. originating applications) by virtue of the express powers granted by the ETA s4(2) and (3), his decision is not made under 13(8) but under the ETA, with the result that the exception does not apply and he is the proper person to hear the review. A chairman acting alone may not however conduct a review of a decision reached by a full hearing rule 13(8) C."
[9]It seems to us that the appropriate way of construing these regulations is to look at them in their context and construe them in a way, which gives effect to the purpose of the regulations. The essential feature of a review is that it gives a tribunal which originally heard the case the opportunity to reopen its decision if it thinks it is right to do so for one of the reasons specified in paragraph 11(1). It would be nonsensical if the Act gave the chairman of a tribunal power to sit to alone to hear an originating application, but the rules took away from him the power to review his own decision and provided further that he could only do it while sitting with two other people who did not have jurisdiction to hear the original complaint unless he decided that they should. And it seems to us that it would be quite wrong for us to construe the regulations in a way which produced such a result unless there was clearly no alternative. We agree with the passage in Harvey set out above and are of the opinion, though it is not necessary for the outcome of this appeal, that paragraph 11(6) does not preclude the review by a chairman alone of his own decision where the original decision was made under statutory authority. Accordingly this appeal will be dismissed.