MRS MARGARET FOX v WILLIS HOWELLS FINANCIAL SERVICES & OTHERS [2000] UKEAT 1399_99_0505

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1399_99_0505Case No Appeal No. EAT/1399/99 & EAT/53/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS MARGARET FOXAPPELLANTWILLIS HOWELLS FINANCIAL SERVICES & OTHERSRESPONDENT
Before
His Honour Judge Peter Clark Mr P DawsonDate 5 May 2000
[1]APPEARANCES For the Appellant MR P TILLETT Representative HIS HONOUR JUDGE CLARK: The Appellant, Mrs Fox was employed by the 1 st Respondent; Willis Howells Financial Services for many years. She contends the business of the 1 st Respondents was transferred to the 2 nd Respondent Gibbs Denley. The 2 nd Respondent denies that a relevant transfer took place. It appears that the 1 st Respondent is now insolvent. Hence the Secretary of State has been joined to these proceedings, commenced by an Originating Application presented to the Bury St Edmunds Employment Tribunal on 5 May 1999, as 3 rd Respondent. By that complaint she claimed :
"Unfair dismissal, redundancy payment, unpaid wages, breach of contract, insolvency payments."
In the particulars of her complaint she claims a redundancy payment; 12 weeks pay in lieu of notice and a shortfall in the employer's contributions to the pension plan of which she was a member, there quantified at £3,822.[2]On 11 August the Appellant's representative, Mr Tillett wrote to the Employment Tribunal in these terms: The third Respondent (the Secretary of State) has now settled Mrs Fox's claim for redundancy payment and that part of her claim is accordingly withdrawn. The Secretary of State has also settled her claim for notice pay. The matters that remain outstanding are as follows:(1) A claim against the first or second respondent for the deficiency in Mrs Fox's personal pension plan.(2) A claim against the first or second respondent for unfair dismissal…(3) A possible claim against the third respondent for unpaid pensions contributions under section. 123 of the Pensions Schemes Act 1993. However I am uncertain whether the Tribunal has jurisdiction to hear such a claim and I would welcome your advice. On 18 August a Chairman, Mr D. Crone, promulgated a decision (the original decision) which reads as follows:
"The claims for redundancy payment and breach of contract are dismissed on withdrawal by the applicant. The claims for unfair dismissal, unpaid wages and insolvency payments remain live."
Against the original decision the Appellant appealed by a Notice dated 5 October 1999 (EAT/0053/00). ("The First Appeal.") Further, by letters detailed 31 August & 19 October the Appellant applied for a review of the original decision. The Chairman, Mr Crone, did not dismiss that application summarily under rule 11(5) of the Employment Tribunal rules of procedure, as he was entitled to do. He held a review hearing on 21 October 1999. In a decision with extended reasons dated 5 November 1999 (the review decision) he, sitting alone, allowed the application for review and then went on to confirm the original decision. Against the review decision the Appellant brings her second appeal (EAT/1399/99).[3]We should add for completeness that the Appellant made a further application for a review of the review decision. That the Regional Chairman, Mrs C Tribe, dismissed by letter dated 13 December 1999. It seems to us, having heard Mr Tillet at this preliminary hearing, that both appeals ought to proceed to a full hearing on the following questions of law:[4]First Appeal It is arguable that on a proper construction of Mr Tillet's letter dated 11 August 1999 that whilst as he accepts the redundancy payment claim was withdrawn the breach of contract claim was not. The letter informs the Employment Tribunal that the Appellant's claim for pay in lieu of notice has been met by the 3 rd Respondent, but it is arguable that: a) The breach of contract claim has not been withdrawn on a construction of the letter and b) In any event, the breach of contract claim encompasses not just the claim for pay in lieu of notice but also a claim that the 1 st or 2 nd Respondent, if there was a relevant transfer, was in breach of contract by the 1 st Respondents failure to make contributions into the pension scheme applicable to the Appellant. Whether that also amounts to an unauthorised deductions from wages claim is, it seems to us arguable, nothing to the point.[5]Second Appeal The principal question here is whether the Chairman, Mr Crone had power to sit alone to hear the review application. The argument that he did not have power to do so runs like this. Rule 13-(2) (a) of the Employment Tribunal rules of procedure permits a tribunal to dismiss proceedings on notice of withdrawal by the applicant. Rule 13 (8) provides that a chairman, subject to the exceptions which follow, may do any act required or authorised by the rules to be done by a tribunal. The third exception (rule 13(8)(c)) concerns the review of a decision under rule 11(1) and the confirmation, etc of a decision and ordering of a rehearing under rule 11 (7). Rule 11 sets out the review procedure: Rule 11 (5) permits a chairman alone to summarily dismiss a review application. Under rule 11(6) if that step is not taken (as in the present case) the review application shall be heard by the Tribunal which decided the case, or, where the decision was made by a chairman acting alone under rule 13(8), by a Tribunal appointed by the President or a Regional Chairman. The interesting point arising in this case is whether Mr Crone was sitting alone "under rule 13 (8) "when he made the original decision. It is suggested in Harvey on Industrial Relations and Employment Law, Volume 4 paragraph T1126 that a distinction is to be drawn between a Chairman who sets alone under the powers expressly granted by section 4 of the Employment Tribunals Act 1996 and other cases in which the power to sit alone is derived solely from rule 13 (8). Thus, e.g. a Chairman sitting alone to hear a preliminary issue under rule 6(1) or a breach of contract claim derives his power to do so, expressly from section 4(3) of the Act. In the present case, it is argued by Mr Tillet, the power for a Chairman alone to dismiss proceedings under rule 13(2)(a) derives solely from rule 13(8) and is thus caught by the prohibition in rule 11(6)(b) on the Chairman alone determining the review application. It is this contention which requires full argument at an inter-partes hearing in the second appeal. We should add, that Mr Tillet takes a further point on the merits of the Chairman's review decision, if contrary to his principal submission, the Chairman had power to sit alone for that purpose. He submits that in his reasons for confirming the original decision, the Chairman has embarked on an analysis of the merits of the claim, in advance of a substantive hearing as to the merits, instead of restricting himself to the question as to whether or not Mrs Fox's breach of contract claim had been withdrawn on notice. If it should arise, we consider it should be open to Mr Tillet to pursue that argument[6]Directions For the purposes of the full appeal hearing we shall direct that these two appeals be consolidated. They will be heard together with a time estimate of ½ 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 with this tribunal at the same time.