MR PETER EDWARDS v MR C J WESTERN [2001] UKEAT 1092_00_1501

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1092_00_1501

Case No Appeal No. EAT/1092/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR PETER EDWARDSAPPELLANT

MR C J WESTERNRESPONDENT

Before

Mr Justice Lindsay

Date 15 January 2001

[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRESENTED MR JUSTICE LINDSAY (PRESIDENT) : Mr Edwards, the erstwhile employer, appeals against the Employment Tribunal Chairman's refusal to review the Employment Tribunal's decision of 6th March 2000 in the matter of Western v Edwards . Mr Edwards does not attend today, nor is he represented and we therefore deal with the matter simply on the papers. On 3rd November 1999 Mr Western lodged an IT1 for unfair dismissal and for wrongful dismissal. In box 11 there was reference to deduction from his wages. Thus in box 11 he said:

"I was given no verbal or written warning indeed previous to this, nor was I given a weeks notice or paid a week in lieu. Between the weeks of 11/10/98 and 13/12/98, Mr Edwards deducted a total amount of £130.00 from my wages. … When I collected my final weeks wages, he informed me that he was keeping £90.00 of the £130.00 he had deducted. The reason I was given was "

I had disrupted his business by being ill". Surely this is theft and there must be a law for this so I can get my money back and stop Mr Edwards from doing this to someone else."

[2]On 10th November 1999 there was an IT3 from Mr Edwards that threw no light on what the true issues between the parties were likely to be. What it said was:

"Mr Western's version of events differs from mine/ours, significantly. … I am not prepared to elaborate here. There is much for debate, if need be. I have the time – the circumstances must be suitable. [ Signed Mr Edwards ]"

Not a very helpful IT3.

[3]Although we have not seen it, the tribunal plainly made an order for exchange of witness statements to take place before the hearing. Mr Western supplied one to Mr Edwards only some five minutes before hearing, so, at any rate, Mr Edwards says, and there is no reason to doubt that. Mr Edwards did not supply documents at all. So both sides were in breach of the arrangements which the Employment Tribunal had made for the exchange of documents.

[4]On 25th February 2000 there was a hearing at the tribunal. The tribunal was held at Exeter, under the chairmanship of Mr C G Toomer and the decision was:

"The unanimous decision of the Tribunal is that:- (1) the applicant was unfairly and wrongfully dismissed; (2) the respondent must pay the applicant £1,449 as compensation for unfair dismissal; (3) the respondent must pay the applicant £90 as an unlawful deduction from pay."

[5]The way those sums were computed is set out in paragraph 16 onwards where the tribunal says:

"16. Therefore, in summary, the compensation for unfair dismissal is as follows:- Basic Award: £ 79.00 Compensation for losses of pay: £1,220.00 Loss of statutory rights: £ 150.00 Total: £1,449.00 17. The sum of £90 as the unlawful deduction from pay must be paid in addition. 18. As we have compensated the applicant for his losses of pay since the date of his dismissal, we make no separate award of compensation for wrongful dismissal."

That was sent to the parties on 6th March 2000.

[6]On 17th March 2000 there was an application by Mr Edwards for a review. It was set out in what is quite a long typed letter. As it seems to us, that application for a review was based on five different grounds. First of all, the hearing should not have proceeded as it did because witness statements had not been exchanged in the manner which the tribunal had required. Secondly, the deduction from wages should not have been ruled upon as it had not been raised in the IT1. Thirdly, the calculation of compensation had not been understood at the hearing itself by Mr Edwards and proved on reflection to be incorrect; so he asserted. Fourthly, the evidence given by Mr Western as to certain dates was confused and confusing. Fifthly, evidence given by Mr Western as to his illness had been either inadequate or false.

[7]On 4th April 2000 the Chairman alone responded to that request for a review. Full reasons are given. The decision of the Chairman was as follows:

"In the exercise of the powers conferred on me by Rule 11(5) of the Rules of Procedure set out in Schedule of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993, I refuse the application for Review made by the respondent in the letter dated 17 March 2000 since it has no reasonable prospect of success."

As that is a ground which entitles the Chairman to act on his own, so he did act on his own.

[8]The Chairman deals with the various grounds accordingly. So far as concerns witness statement and their failure to be exchanged, he says this:

"5 Firstly, it is suggested that the hearing should not have taken place until statements had been exchanged in accordance with the tribunal's earlier direction. At the hearing the applicant had available written statements, but had not served copies upon the respondent; the respondent had no such statement prepared. Although the respondent accepts some small blame for having overlooked the requirement, he says that the hearing should not have taken place until there had been such an exchange, and that in any event the tribunal should have reminded him of the requirement when a previous hearing was postponed. 6 The direction for the exchange of witness statements was issued in clear and unambiguous terms. In my view, a tribunal is entitled to expect that its orders will be obeyed, without devoting precious time and resources to reminding parties of their obligations. So far as I can see from my note, no application for a postponement was made at the time and I doubt if such an application would have been successful in any event. The object of a tribunal is to afford the parties a speedy resolution of their disputes and in this case the scope of the evidence was not so large or complex as to warrant an adjournment for this reason."

So that the first complaint dealt with. As to the evidence of dates the Chairman says:

"7 Complaint is made that the proceedings should have been suspended when disputes arose over the relevant dates. There was certainly a dispute, and some area of confusion, but I do not accept that the tribunal became "a shambles"

. Both parties are under a duty to bring to the tribunal the evidence on which they propose to rely; and where the parties were unable to agree upon the precise chronology it was for the tribunal to attempt to resolve the conflict upon the basis on the material in front of it. I do not accept that there was "a scramble" in order to achieve "a conclusion before lunch at all costs"; the tribunal simply heard both sides recollections as to the relevant dates and then proceeded to make a decision upon the point." So, again, that point is considered and dealt with. So far as concerns deduction from wages, the Chairman says:

"8 … It is well established that a tribunal is not required to abide by strict rules of pleading, but to adjudicate upon the substance of an individual's complaint, so long as that complaint lies within its jurisdiction and the other party has had adequate notice that the matter is being raised."

So far as concerns those first three topics of complaint, it seems to us that there is no error of law in the Chairman's handling of those three issues.

[9]So far as concerns the calculation of compensation, that is dealt with by the Chairman in his paragraph 9. He says:

"9 Complaint is made as to the calculation of compensation; the respondent alleges that the explanation given by me was too fast and there he did not understand it. It was, however, open to him to seek clarification if there was anything which he did not understand; moreover, it should be pointed out that there are numerous publications which explain the law relating to remedies for unfair dismissal in simple language, and any Citizen's Advice Bureau or office of Advisory Conciliation and Arbitration Service would be able to give free advice on the subject if asked. It was therefore open to the respondent to have undertaken at least some elementary research and to have prepared himself to deal with such issues in advance."

So that is, again, the subject as it is dealt with by the Chairman. Perhaps more importantly, if the tribunal had erred in law in its approach to the calculation of compensation that should have been a subject for appeal against the substantive decision. But no appeal against the substantive decision was lodged in time, a subject that I shall have to deal with on my own in separate proceedings.

[10]So far as concerns other broader complaints that Mr Edwards raised, the Chairman says:

"10 It appears to me that the remainder of the respondent's complaints refer to the tribunal's approach to the evidence and I have already indicated, the tribunal is not permitted to re-open a hearing because one party alleges that its conclusions were wrong. …"

It thus came to be that the Chairman concluded:

"For the reasons that I have set out, therefore, I have come to the opinion that the respondent's application for a review of this decision has no reasonable prospect of success and in those circumstances I refuse it as I am entitled to do under Rule 11(5) of the Rules of Procedure which govern tribunal proceedings, and to which I have already referred."

[11]We are only concerned with whether there is error of law in the Chairman's conclusion that the application for a review had no reasonable prospect of success. He appears to deal not summarily but in a fair manner with each of the complaints which Mr Edwards had raised and we have not been able to spot any error of law in the Chairman's reasoning. We mention again that we are not here concerned with an appeal against the substantive decision, but simply with the appeal against the refusal for a review.

[12]Finding no arguable error of law in the Chairman's conclusion in relation to the application to review, we must dismiss Mr Edward's appeal even at this preliminary stage.