MR C A JONES v BALFOUR NEWS [2000] UKEAT 507_98_0110

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 507_98_0110Case No Appeal No. EAT/507/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR C A JONESAPPELLANTBALFOUR NEWSRESPONDENT
Before
His Honour Judge J R ReidDate 1 October 2000
[1]APPEARANCES For the Appellant MARY STACEY (of Counsel) Appearing under ELAAS JUDGE REID QC : We have before us an ex parte preliminary application to determine whether the appeal by Mr Jones against the decision of the Employment Tribunal sitting at London (North) on 11th February 1998 should go to a full hearing or not. The reason that the appeal has taken long to get this far is that although it was launched on 23rd March 1998, there was a stay granted until the determination of the case of Regina v Secretary of State for Employment ex parte Seymour-Smith in the House of Lords. That case has now been decided and, as is so often the way when a case, is held up pending a decision in another case, the decision in Seymour-Smith in fact does not help us one little bit. The background to the case is that Balfour News employed Mr Jones on 12th April 1994. He was dismissed on 11th March 1996. He then brought his application before the Industrial Tribunal on 4th June 1996. By it he claimed unfair dismissal and his complaint was in these terms:
"Failure to quote reasons given for dismissal in their full context, thus altering the meaning. Failure to explain some reasons for dismissal. Failure to supply copies of incident reports and disciplinary letters which would be required for civil action, even after repeated requests."
[2]In the light of that application, not surprisingly, the Chairman of the tribunal decided by a letter dated 9th January 1998, that the matter should be listed for a preliminary hearing pursuant to Regulation 6 in Schedule 1 of the Employment Tribunals (Constitution etc) Regulations 1993 . The terms of the letter are as follows:
"A Chairman of the Tribunals has considered the papers in this case and notes that the Applicant complaints of unfair dismissal but that there is an issue as to whether or not the Applicant had the necessary two years' service to qualify him not to be unfairly dismissed as provided by section 108 of the Employment Rights Act 1996. Accordingly, the Chairman has directed that the case be listed for a Preliminary Hearing by a Chairman alone to consider any argument put forward by the parties as to the Applicant's entitlement not to be unfairly dismissed. The Chairman may dismiss the claim and/or give further directions. The Applicant should not that the burden of proving the right not to be unfairly dismissed lies on the Applicant."
[3]At the hearing, conducted before a Chairman sitting alone, Mr Jones raised certain further points beyond those set out in his application:
"4 The Applicant also argued that the statutory time limit did not apply because he was dismissed for asserting a statutory right under section 104 of the Employment Rights Act 1996. The right that he said he was asserting was to go for another interview for a job whilst working for the Respondents and that this was part of European law. He could give details of the statutory right which he says he was asserting. 5 The Applicant also stated that he was dismissed for health and safety reasons and therefore the two-year rule did not apply. The circumstances which he says led to his dismissal were that he was accused of shutting up the shop and leaving it unattended. He claims that the reason he shut up the shop was that the sun streamed into the shop making it unbearably hot and affecting his health. He was disciplined for doing that, and he claims it is therefore within section 100 of the Employment Rights Act."
[4]The Chairman, having considered the matter and having set out the relevant parts of s. 100:
"10 There was no evidence from the Applicant in regard to the danger that he felt that he was in and it is not set out anywhere in the pleadings or in the claim that he made to this Tribunal. I rule therefore that the Applicant has not brought himself within the protection set out in section 100."
[5]The relevant part of s.100 to which Mr Jones had referred was s.100(1)(d) which reads:
"In circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work …"
What the tribunal's decision boiled down to therefore was this: first, that, as was evident on the face of the documents, Mr Jones did not have two years qualifying service; second, that there was no evidence of any breach of any statutory right that he was asserting or dismissal for asserting such a right and, thirdly, that there was no evidence upon which it could be said that s.100(1)(d) applied. The Chairman was not making a decision as to whether or not she accepted what Mr Jones said about the sun streaming in and making the shop unbearably hot, she was simply deciding that, on the evidence which had been placed before her, there was no case for him to say that he did not require two years service before he was entitled to assert a claim for unfair dismissal and she therefore decided the arguments as to his entitlement against him and it followed that, as had been suggested might happen in the letter of 9th January 1998, he was not someone who could take advantage of the 1996 Act and claim for unfair dismissal.[6]It seems to us that those findings were unobjectionable and that no real point of law could be raised as a result of them. However, it has been said, on behalf of Mr Jones by Ms Stacey, who has represented him extremely competently through the ELAAS scheme, that the decision of the Chairman was a decision which should never have been made because she should have been sitting not as a Chairman alone but with other members of a tribunal.[7]It seems to us that that is not a submission that we should accept. A tribunal can be composed of a Chairman sitting alone in certain circumstances. In this instance, it seems to us, that the tribunal could comprise a Chairman sitting alone, because by virtue of s.4(6) of the Employment Tribunals Act 1996 it is provided:
"Where (in accordance with the following provisions of this Part) the Secretary of State makes employment tribunal procedure regulations, the regulations may provide that any act which is required or authorised by the regulations to be done by an employment tribunal and is of a description specified by the regulations for the purposes of this subsection may be done by the person mentioned in subsection (1)(a) alone."
Then when one looks at the provisions of the Regulations those provide under Regulation 13(8):
"Any act required or authorised by these rules to be done by a tribunal may be done by a chairman except- …"
Then it sets out three matters, none of which is material to this case. So that one of things that could be done by a Chairman sitting alone was a determination, pursuant to Regulation 6, of an "issue relating to the entitlement of any party to bring or contest the proceedings to which the originating application relates". Thus it seems to us that by virtue of those Regulations, the tribunal could properly be constituted by a Chairman alone and that the point as to jurisdiction was without substance.[8]I add that even if we had taken a different view and had gone along with Ms Stacey's arguments that those Regulations, despite their clear words, were subject to the provisions of s.4(5), so that the Chairman could not act alone unless various hoops set out in subsection (5) had been gone through, we would have taken the view that the letter determining that a Chairman should decide this point, should be read on the assumption that, omnia rite , i.e. that everything had been done properly before the letter was written, so that the requirement of subsection (5) had been complied with and the Chairman had considered whether or not it was appropriate to order the matter to be dealt with in that way, in particular, in this instance, because of the likelihood of a dispute of fact arising, which at that time there was not.[9]We should further add that even if we had been with Ms Stacey that far down the line, (which we are not) we would have been inclined to prefer the view of Charles J to the view of Morison J and would have held that the decision of the tribunal, constituted by the Chairman alone, was an irregularity rather than a nullity and that in those circumstances it could not be said that we should proceed to an full hearing of the appeal merely because the decision had been that of a Chairman sitting alone in the absence of any indication that the Chairman sitting alone was in error.[10]As I have already said, we take the view that the Chairman sitting alone was not in error. It follows that we take the view, for the reasons I am afraid I have expressed at rather greater length than is usual on a preliminary hearing, that this is not a case which should go to a full appeal.