OUTWING CONSTRUCTION LTD v MR L J ELLIOTT [2000] UKEAT 740_00_0911

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 740_00_0911Case No Appeal No. EAT/740/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
OUTWING CONSTRUCTION LTDAPPELLANTMR L J ELLIOTTRESPONDENT
Before
His Honour Judge J R ReidLord Gladwin of CleeDate 9 November 2000
[1]APPEARANCES For the Appellant MR ALAN FOREMAN Representative Director Outwing Construction Ltd PO Box 2242 Caterham Surrey CR3 6ZX JUDGE J R REID QC This is an Ex Parte Preliminary Hearing on an Appeal by Outwing Construction Ltd against a decision of an Employment Tribunal at London (South), that being a Chairman's decision to refuse to review a decision that had been made following a hearing on 8 November 1999 and a consideration of the matter in Chambers on 6 December 1999. The decision was entered on the Register and sent to the parties on 14 January 2000.[2]The extended reasons for refusal to review, which was on the basis that had no reasonable prospect of success were given on 12 July 2000. The claim that was made against Outwing Construction was by a former employee. There had been an earlier application to review which was refused on 22 March 2000.[3]The decision of the Tribunal had been first of all that he was an employee. Second, that he was entitled to redundancy payment and third, that there had been a breach of contract in that there had been a failure to pay overtime, fourth that there was a sum due in respect of loss of use of vehicle and finally that there was a sum due in respect of the balance of notice money due.[4]The review sought was on a pretty wide-ranging basis because the Company's complaint essentially was that, that there was a serious error of fact by the Tribunal in its decision: in particular, paragraph 17 of that decision where the Tribunal held that initially in September 1996, when Mr Elliott started working, he was to be paid £500 a week but not to be paid any overtime but then in June or July 1997, there was a new pay scheme under which the amount of payment was increased, and he was in addition told that overtime would be paid. Then but that itself was altered because in September 1998 the Tribunal held that it was agreed that his salary would be increased to £33,600 per annum inclusive of all overtime work from that point.[5]What the Tribunal did therefore, was, hold that had been 2 variations to the original contract. The first to bring in a right to overtime and the second, on payment of a further increase, to take it out again. And Mr Foreman on behalf of the Company wishes to say that was wrong. That is a decision of fact made by the Tribunal on the basis of Mr Elliott's oral evidence primarily and it is a decision that we cannot interfere with.[6]But what Mr Foreman is anxious to do is to obtain re-litigation of that decision and of the decision that Mr Elliott is entitled to 1 month's notice rather than 1 week's notice, on the back of an error by the Tribunal as to the amount which was payable to Mr Elliott by way of the balance of money for his month's notice.[7]The Tribunal, in its review, did say paragraph 17:
"It would therefore appear that although an arithmetic error has been made by the Tribunal, it has been made in the Respondent's favour and not on the basis or for the reasons put forward in the Respondent's second ground. One week of notice was taken as holiday and paid as such and the remainder of the notice money was not paid to the Applicant."
[8]In effect, what the Tribunal was there saying was "Yes, we made a comparatively minor error as a result of which we gave Mr Elliott rather less than he should have had". And on the back of that error Mr Foreman is saying:
"The Tribunal should have reviewed its decision and re-opened the entire matter."
[9]The basis on which a Tribunal can review its decision is set out in paragraph 11 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 in these terms:
"(1) 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 – (a) the decision was wrongly made as a result of an error on the part of the Tribunal's staff or (e) the interest of justice require such a review"
[10]Mr Foreman, as a Director of Outwing has said that the error by the Tribunal in the calculation of the notice pay, gives rise to a right to review because it was a decision wrongly made as a result of error on the part of the Tribunal's staff.[11]In our judgment, that is wrong. The error was an error by the Tribunal. It was not an error on the part of the Tribunal's staff. There is a clear distinction between the Tribunal and its staff and this error was an error by the Tribunal.[12]It follows that the ground on which Mr Foreman has to rely is (e) in the interest of justice require such a review. So far as that is concerned the interest of justice do not, in our view, require a review of the decision because of that error. The only acknowledged error is one in favour of the Appellant and against Mr Elliott who has not seen fit to take up this comparatively small point.[13]The object to review is not to have an entire rehearing but to deal with a particular matter, which needs to be dealt with. Sometimes, of course, that does lead to an entire review but this appears to have been an arithmetical matter. And in our judgment, it cannot be said that the interest of justice require such a review.[14]The Tribunal I should add is not obliged to review a matter when an error or other matters pointed out to it. It is given power. The Tribunal "shall have power" are the words used. That gives the Tribunal a discretion as to whether or not the matter should be reviewed. The Tribunal took the view that it was not appropriate for the matter to be reviewed and it does not seem to us that there can be any complaint about that matter.[15]The reality of the matter is that Mr Foreman thinks that the Tribunal was wrong as a matter of fact in preferring Mr Elliott's evidence as to the terms of his employment to the evidence produced on behalf of Outwing Construction and is seeking to have the matter re-litigated. That is not, in our view, a course that he can follow by means of the review procedure, which he has sought to adopt.[16]As to the second of the points that he seeks to raise, namely that there was an error in awarding Mr Elliott 1 month's notice. The short answer to that is that although 1 week would have been a minimum permissible by law, there being no specific term of any contract proved as to the length of notice, the question for the Tribunal was what was a reasonable period of notice for someone employed in Mr Elliott's position. There can our judgment be no serious complaint about the Tribunal having fixed the period of 1 month's notice for a person in a very senior capacity, earning the time of his dismissal well in excess of £30,000 a year.[17]It follows that this attempt to re-litigate the case fails, there is no point of law which has been put before the Tribunal, and the matter is not one which is appropriate to send to a full hearing. It should be dismissed at this stage.