MR V GILL v WHITBREADS PLC [2000] UKEAT 1274_99_0704

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 1274_99_0704Case No Appeal No. EAT/1274/99 & EAT/1444/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR V GILLAPPELLANTWHITBREADS PLCRESPONDENT
Before
His Honour Judge Peter Clark Mr P DawsonDate 7 April 2000
[1]APPEARANCES For the Appellant NO APPEARANCE BY OR ON THE APPELLANT'S BEHALF JUDGE PETER CLARK : The appellant, Mr Gill, was employed by the respondent as a part-time cleaner at their Tut n' Snipe Public House in Doncaster from 4th December 1995 until his dismissal by letter dated 3rd September 1997.[2]It appears that during his employment he presented a complaint to an Employment Tribunal of breach of contract. Since his employment had not then terminated an Employment Tribunal sitting on 12th June 1997 declined jurisdiction under the Employment Tribunals (Extension of Jurisdiction) Order 1994 .[3]Following termination of his employment he presented a further Originating Application on 9th September 1997 (Case No. 2802086/97). That complaint came before an Employment Tribunal sitting at Sheffield on 1st December 1997. Again his complaint was dismissed. On this occasion he appealed to the EAT against that decision (EAT/193/98).[4]That appeal was heard by a division presided over by Judge Altman sitting on 21st June 1999. The appellant did not appear, but submitted written representations. The respondent was represented by Counsel. The appeal was allowed. The case was remitted to a fresh Employment Tribunal for rehearing on two issues:(1) what damage (if any) had the appellant suffered by reason of the respondent's breach of contract in failing to process the appellant's grievance? The EAT found, contrary to the finding of the Employment Tribunal, that the grievance procedure formed part of his contract of employment, and(2) whether the appellant had suffered a detriment in accordance with the provisions of the s.44 of the Employment Rights Act 1996 ['ERA'] (Health and Safety cases). That claim had not been dealt with by the Employment Tribunal; the EAT held that it did arise for determination.[5]The rehearing of those two matters was listed before an Employment Tribunal sitting at Sheffield on 6th September 1999. On 18th August, by letter of that date received by the tribunal the following day, the appellant applied for a postponement of the hearing. His grounds for that application were that his claim for damages for breach of contract included a claim in respect of National Insurance contributions for the tax (commencing 6th April) 1996-7 and 1997-8.[6]That application was refused by a letter from the tribunal dated 24th August. The Chairman's reason for refusing the application was that it would be unreasonable to adjourn for evidence of loss when the dismissal occurred as long ago as September 1997. The appellant then asked for a review of that 'decision'. In fact, we interpose, an order refusing an application for postponement under Rule 13(7) of the Employment Tribunal Rules of Procedure is not a decision within the meaning of Regulation 2(2) of the Employment Tribunals (Constitution etc.) Regulations 1993 and is therefore not reviewable under Rule 11. However, it is open to the party to renew his application; that is what in effect the appellant did; it was again refused by letter dated 27th August, for the same reasons as before. The hearing on 6th September was to go ahead.[7]On 30th August the appellant wrote again to the Employment Tribunal. The letter, we see from the Sheffield Employment Tribunal date stamp, was received on 31st August. In that letter the appellant indicated that he had not received a response to his review application and had therefore decided to appeal direct to the EAT for postponement of the hearing. He stated that he would not be at the hearing on 6th September, although he might swear out an affidavit if time allowed.[8]The appellant did indeed appeal to the EAT by a letter dated 30th August (EAT/1274/99). However, the copy of the Notice which is before us bears an EAT date stamp "received 17 September 1999". That is after the hearing fixed for 6th September. We also note that at the top of the document is a fax transmission record showing that it was faxed to the EAT at 09:46 on 17th September.[9]On 6th September an Employment Tribunal was convened at Sheffield consisting of a Chairman, Miss H A McWatt, apparently sitting alone. The decision promulgated with extended reasons on 23rd September 1999 does not identify any lay members sitting with the Chairman. The appellant did not appear. Nor did he submit written representations.[10]The Chairman referred to a letter from the appellant dated 5th September in which he had repeated his intention to appeal to the EAT. She caused a telephone enquiry to be made of the EAT. She was informed that no Notice of Appeal had been received. That would be correct, bearing in mind the date stamp on the Notice of Appeal eventually received here and the date and time of fax transmission thereon.[11]In these circumstances she dealt with the matter under Rule 9(3) of the Employment Tribunal Rules of Procedure. She decided that in the absence of the appellant, or any representations bearing on the two issues remitted by the EAT, she would dismiss the claim.[12]Finally, she gave a warning as to the possibility of a costs order being made in future if the matter were to be pursued by the appellant. No application for costs of that hearing was made by the respondent.[13]Against that decision the appellant launched a further appeal (EAT/1444/99) by a Notice dated 2nd November 1999 and faxed to the EAT on that date.[14]Both appeals, 1274/99 and 1444/99, come before us for preliminary hearing today. We shall refer to them respectively as the first and second appeals.[15]Again Mr Gill does not appear before us today. However, in addition to the grounds of appeal in each Notice he has submitted skeleton arguments, sent letters and sworn affidavits in these proceedings. We have read and considered all that material with the papers before us. The question is whether those appeals raise any arguable point or points of law to go forward to a full inter partes hearing.[16]In correspondence Mr Gill has pressed us to consider the first appeal before the second appeal. We are content to deal with the cases in that order. First appeal (1274/99)[17]A tribunal Chairman's discretion to grant or refuse a postponement under Rule 13(7) is a wide one. Carter v Credit Change Ltd [1979] ICR 908 . We can only interfere with an exercise of that discretion if it is shown to have been " Wednesbury unreasonable". Bastick v James Lane [1979] ICR 778 , 782B-C, per Arnold J; that is to say, that the Chairman took into account an irrelevant factor; failed to take into account a relevant factor or otherwise reached a perverse conclusion.[18]Here, the only ground advanced by the appellant for a postponement of the hearing of the 6th September was that he was not in a position to quantify his loss arising from the breach of contract as found by the EAT. The Chairman thought that he had long enough to quantify his loss in respect of a breach during employment which ended two years earlier. That seems to us to be a perfectly good reason for refusing the postponement. At all events it cannot be said to be a perverse conclusion. Accordingly no error of law is made out in this appeal. It must be dismissed. Second appeal (1444/99)[20]We shall first dispose of the following argument raised by the appellant:(1) that there should not have been any communication between the Employment Tribunal and the EAT on 6th September 1999. We disagree. It was plainly material to the Chairman sitting on that day to know whether the appellant had in fact lodged an appeal against the earlier postponement order. That had a bearing on whether to proceed in the appellant's absence that day, or to adjourn the proceedings pending determination of that appeal. In the event it turned out that the appellant had not lodged his Notice. That was a relevant consideration for the Chairman in deciding to proceed with the hearing.(2) that the Chairman ought not to have threatened him with costs in paragraph 5 of her reasons. We see nothing wrong in the Chairman giving a costs warning. It will be a matter for any subsequent Employment Tribunal to decide the question of costs, should it arise.(3) he cannot quantify his breach of contract damages claim until after the first Sunday in January 2001. The precise significance of that date, it has to be said, escapes us. No explanation is given by the appellant. We can see no grounds for putting off the assessment of damages until that date.[21]It follows that having considered these various points we reject them. No arguable point of law is there raised.[22]That leaves one final submission. The appellant takes a jurisdiction point. The Employment Tribunal's Jurisdiction[23]We have earlier observed that on the face of the decision promulgated by Miss McWatt she sat alone on 6th September 1999.[24]In his Notice of Appeal dated 2nd November 1999 the appellant says this:
"Further I with respect submit that the Tribunal held in Sheffield on the 6th September 1999 should have had 3 members and not just a chairperson given the subject matter."
In his skeleton argument he adds this:
"I submit with respect the constitution of the tribunal was not correct to deal with matters under section 44 of the Employment Rights Act 1996."
[25]The power granted to a Chairman to sit alone is to be found in s.4 of the Employment Tribunals Act 1996 [ETA].[26]S.4(2) provides that, subject to subsection (5) the proceedings specified in subsection (3) shall be heard by a chairman alone.[27]S.4(3) sets out a list of the proceedings which may be heard by a Chairman alone. They include claims for damages for breach of contract (s.4(3)(d)) but not, we think, claims brought under s. 44 ERA.[28]It therefore seems to us arguable that the Chairman did not have jurisdiction to sit alone to hear a complaint under s.44 ERA.[29]As to the claim for damages for breach of contract, although provided for in s.4(3)(d), that is subject to the provisions of s.4(5). We have in mind two decisions of the EAT on the effect of the discretion granted to a Chairman to sit with lay members on "s.4(3) cases" by s.4(5), namely Sogbetun v London Borough of Hackney [1998] IRLR 676 (Morison J) and Post Office v Howell [2000] IRLR 224 (Charles J). It is not, at this preliminary hearing stage, appropriate to venture an opinion on the apparent divergence of views expressed in those two cases. What can be said, here, is that if the Chairman was bound to sit with lay members to hear the s.44 complaint, it was arguably a wrong exercise of her discretion, if she exercised it at all, to sit alone to hear the breach of contract claim which was to be heard together with the s.44 claim.[30]Does it make any difference that the Chairman did not actually "hear" the claims in the substantive sense, but dismissed them under Rule 9(3)?[31]We think it may be necessary, at a full hearing, for this EAT to consider the effect of Rule 13(8) of the Employment Tribunal Rules of Procedure.[32]Rule 13(8) provides, so far as is material:
"(8) Any act required or authorised by these rules to be done by a tribunal may be done by a chairman except- (a) … (b) an act required or authorised to be so done by rule 9 or 10 which the rule implies is to be done by the tribunal which is hearing or heard the originating application; …"
[33]We thank it is arguable that where s.4 ETA requires a full Employment Tribunal to hear the case (see above) it is implicit that an order dismissing the claim under Rule 9(3) cannot be made by a Chairman alone by virtue of Rule 13(8)(b).[34]In these circumstances we shall allow the second appeal to proceed to a full hearing on what we have identified as the jurisdiction point only. All other grounds are dismissed. Directions and order[35]The first appeal is dismissed.[36]The second appeal is allowed to proceed to a full hearing on a the jurisdiction point only.[37]That hearing will be listed for half a day, Category B. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged at the EAT at the same time. Also, Mr Gill should notify the EAT whether he intends to appear at the hearing. If not, he should submit written representations not less than 14 days before the date fixed for the hearing or indicate if he wishes to rely solely on his skeleton argument.