MR L THOMAS v MERTON RACIAL EQUALITY COUNCIL [2000] UKEAT 30_99_0203

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 30_99_0203Case No Appeal No. EAT/30/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR L THOMASAPPELLANTMERTON RACIAL EQUALITY COUNCILRESPONDENT
Before
His Honour JudgeDate 2 March 2000
[1]APPEARANCES For the Appellant Joanna Heal, (Of Counsel) Hodge Jones & Allen Twyman House 31-39 Camden Road London NW1 9LR For the Respondent Mr. J. Nero, former chairman of MREC JUDGE COLLINS: By an originating application dated 14 May 1998, the appellant, Mr Thomas made an application which he described in these terms:
"Breach of Contract of employment, failure to meet statutory obligations under Section 116 of the Employment Rights Act 1996, unfair treatment, dismissal and others."
[2]He had been employed by the respondent, the Merton Racial Equality Council, which was effectively wound up in 1998, when the Commission for Racial Equality and the London Borough of Merton withdrew their funding. The object of the exercise from Mr Thomas' point of view is to get an award of a redundancy payment from a tribunal so that recourse can be had to the Department of Trade and Industry[3]Today Mr Nero, who was the responsible officer at the Merton Racial Equality Council when it was alive and who has been kind enough to come along and assist us today has made it clear that subject only to the amount of the redundancy payment, which would have to be calculated, it is accepted that the appellant was indeed dismissed by reason of redundancy and there can be no possible defence to his claim for a redundancy payment, subject to the amount.[4]The matter came on for hearing on 6 November before a tribunal chaired by Mr Peters. It is recorded in para.7 of their order that the originating application was to be amended by defining clearly complaints of unfair treatment, which the appellant was making on sexual and racial grounds, and by dismissing, upon withdrawal by the appellant, all other complaints. The appellant had appeared in person. A week later on 13 November, solicitors who were then acting on his behalf wrote a letter to the tribunal saying that he had not intended to withdraw his claim for breach of contract or redundancy pay and asked for the order of the previous week to be reviewed.[5]On 24 November, the tribunal replied on behalf of the Chairman saying that the order correctly reflected what had transpired at the hearing and the order would not be amended. On 25 November, the solicitors wrote back saying "Thank you for your letter but we are not clear whether you specifically dealt with our application for a review or not." And on 27 November the tribunal wrote back on behalf of the Chairman saying that the order was not capable of review and in addition refused a request for extended reasons.[6]This appeal was originally brought by Notice of Appeal dated 11 November 1998 and was an appeal against the decision of the tribunal on 6 November, dismissing all complaints except the one which I have mentioned and was in addition an appeal against the decision of the tribunal not to review the decision of 6 November.[7]Today the position has changed. Miss Heal on behalf of the appellant has indicated in her skeleton argument and confirmed at this hearing, that the appellant does not now continue with his appeal against the order of 6 November. The reason for that is that by letter to this Appeal Tribunal dated 26 November, the Chairman set out in very great detail his note or recollection of what transpired on 6 November in a 4 page letter extending to 30 paragraphs. It was the Chairman's very clear understanding that the appellant understood very clearly the significance of withdrawing his breach of contract and redundancy pay claims, and in the light of that the view has been taken on behalf of the appellant that it would not be appropriate to ask us to reverse the order of 6 November.[8]We are concerned with a narrower issue, whether the Chairman was correct in deciding that the decision of 6 November was not one, which was capable of review and what order we should make if he was wrong. Before I come to the question of the review itself, I ought to mention that this appeal came on for preliminary hearing before a constitution of this Appeal Tribunal presided over by Holland J. on 24 March 1999. They did not have the benefit of the Chairman's letter and their understanding of what had transpired on 6 November 1998 was unclear but Holland J. expressed the clear view of this tribunal that there was no apparent advantage for any of the parties in the redundancy claim not being proceeded with and ordered that this appeal should be expedited.[9]It is in those circumstances; it is regrettable that it is not until 2 March 2000 that this appeal comes on for hearing. It has not been possible for counsel to give us any explanation as to why the order of this tribunal as to expedition has not carried into execution. But since there may be reasons of which we are unaware, I say no more about it.[10]Although the Chairman declined to give extended reasons he did give reasons for his refusal to review in the letter of 26 November 1999. In para.26 he says:
"I took the view that with regard to all of the paragraphs of the Order dated the 6 November (with a possible exception of paragraph 4 (I) the Tribunal has made no findings and had exercised no judicial discretion and accordingly had made no decision. It is only a decision, which is capable of review. The Tribunal had exercised administrative functions to prepare the case for hearing in exactly the same manner as if the case has been listed as an interlocutory directions hearing. "
[11]The power to review is set out in rule 11 of the Employment Tribunals (Constitution etc) Regulations 1993, which provides:
"Subject to the provisions of this rule, a Tribunal shall have power on the application of a party or of its own motion to review any decision on the grounds that ( I omit immaterial parts) the interest of justice requires such a review."
And with the sake of convenience I mention now that rule (11)(6) provides: - "If such an application is not refused under paragraph 5 it shall be heard by the Tribunal which decided the case or (a}, where it is not practical for it to be heard by that Tribunal or (b), where the decision was made by a Chairman acting alone under rule (13)(8) by a Tribunal appointed by either the President or a Regional Chairman."[12]The decision not to review appears to have been the decision of a Chairman acting alone under (13)(8) and accordingly any review we order must be heard by or a tribunal appointed by the President or a Regional Chairman. Before I leave the Employment Tribunals rules, I must refer to rule (13)(2a) provides that :
"A Tribunal may (a) if the applicant at any time gives notice of the withdrawal of his originating application dismiss the proceedings" which indicates on the face of it that the tribunal has discretion whether or not to dismiss. That reading is borne out by the decision of the Court of Appeal in Barber v Staffordshire County Council 1996 IRLR 211 which revolved essentially around questions of issue estoppel. The Court of Appeal had to consider the status of a decision, which had been made on 5 May 1993. It was a decision recorded in these terms. "
The unanimous decision of the Tribunal is that this application is dismissed on withdrawal by the Appellant." And at paragraph 31of the judgment of Neill LJ it is said:
"I am satisfied that the order which was made by the Industrial Tribunal on 5th May 1993 was a judicial decision made by the Industrial Tribunal in the exercise of its powers under the 1978 Act and the 1985 Regulations. It was not a mere administrative act."
The Court of Appeal drew attention to the discretionary nature of the power to dismiss to which I have already referred.[13]Plainly the Chairman did not have the Barber case in mind when he expressed his view that the decision of 6 November was not one which was capable of review because it was a mere administrative act. We have no doubt that if the Chairman had had the decision of Barber before him he would not have expressed himself in that way and would not have precluded himself from hearing the review on its merits. We must reverse his decision not to review the decision. For the reasons, which I have given that review will have to take place before a tribunal, nominated by the President or a Regional Chairman.[14]It is no part of the function of this Appeal Tribunal to encroach upon the judicial independence of the tribunal, which does in fact entertain the review. We only draw attention first, to the fact that there is no dispute that the appellant is entitled to a redundancy payment, second, that there is no prejudice to the respondents who are defunct, and will not have to find the money themselves and third, that there must be some doubt as to whether his intentions, although apparently clear to the tribunal, were in fact his real intentions. But those observations are designed to help and guide the reviewing tribunal and are not in any way to encroach upon their freedom to do what justice requires on the reviews.