MRS MARGARET FOX v (1) WILLIS HOWELLS FINANCIAL SERVICES (2) GIBBS DENTLEY (3) SECRETARY OF STATE FOR TRADE AND INDUSTRY [2001] UKEAT 1399_99_0103

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1399_99_0103Case No Appeal No. EAT/1399/99 & EAT/53/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS MARGARET FOXAPPELLANT(1) WILLIS HOWELLS FINANCIAL SERVICES (2) GIBBS DENTLEY (3) SECRETARY OF STATE FOR TRADE AND INDUSTRYRESPONDENT
Before
Mr Justice HooperLord Gladwin of CleeDate 1 March 2001
[1]APPEARANCES For the Appellant MISS LEILA ONG (Lay Representative) Cambridge Citizens Advice Bureau 72/74 Newmarket Road Cambridge CB5 8DZ For the Respondents THE RESPONDENTS NEITHER PRESENT NOR REPRESENTED MR JUSTICE HOOPER : This is an appeal against the decision of the Employment Tribunal, Mr D R Crome, sitting alone, given on 21st October 1999. The appeal was set down for an ex parte preliminary hearing. On 5th May 2000 the Employment Appeal Tribunal ordered that the appeal be allowed to proceed to a full hearing. The respondents are not represented, although we have the benefit of short written submissions in which reliance is placed on the reasoning of the Chairman. To understand the background to the case, we shall recite what His Honour Judge Peter Clark said about the matter, giving the judgment of the tribunal at the preliminary hearing:
"1. The Appellant, Mrs Fox was employed by the 1st Respondent; Willis Howells Financial Services for many years. She contends the business of the 1st Respondents was transferred to the 2nd Respondent Gibbs Denley. The 2nd Respondent denies that a relevant transfer took place. It appears that the 1st 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 3rd 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 plain 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 Appellants appealed by a Notice by dated 5 October 1999 ("The First Appeal.") Further, by letters dated 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."[2]The principal issue that we have to resolve today is whether or not Mr Crone, not having dismissed the application summarily under Rule 11(5), could himself conduct the review.[3]We have reached the conclusion, for reasons which we shall now give, that he did not have the jurisdiction to do that. In those circumstances it is not necessary for us to consider the appeal against the original decision (called by His Honour Judge Peter Clark "the first appeal"). Ms Ong, who appears for the appellant agrees with that course.[4]The answer to the question posed by this appeal is to be found in Schedule 1 of rules 11 and 13 of the Employment Tribunals (Constitution etc) Regulations 1993 . Mr Crone, sitting alone, had the jurisdiction to make the original decision the subject matter of the first appeal, that is to dismiss the claims if they had been withdrawn by the applicant. Under rule 11(5) he had the jurisdiction, sitting alone, to decide whether or not to dismiss the application for a review on the grounds that it had no reasonable prospect of success. It might be thought that, having decided that he would not summarily dismiss the application for review, he would have the right to continue and the review the decision. That, it appears, is not the case.[5]Rule 11(6) provides:
"(6) 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 practicable 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."
[6]Although rule 11(6) uses the words "which decided the case", that must include the making of a decision as well as the deciding of a case. That follows from the wording of rule 11(1), which refers to the power to "review any decision". In so far as rule 11(6)(b) is concerned, the decision made by Mr Crone to dismiss the claims was a decision made by a chairman acting alone under rule 13(8).[7]It does not appear that Mr Crone was specifically appointed by the President or Regional Chairman to conduct the review. There is, however, a further difficulty. Rule 13 limits the circumstances in which a chairman acting alone can do any act required or authorised by the Rules to be done by a tribunal. One of the things which a chairman sitting alone cannot do by virtue of rule 13(8)(c) is to conduct a review of a decision under rule 11(1).[8]For those reasons, we are unanimously of the view that this second appeal succeeds and the review will be remitted to a tribunal appointed by either the President or a Regional Chairman. The first appeal is withdrawn because of the decision we have made on the second appeal.