MR V GILL v WHITBREADS PLC [2001] UKEAT 1444_99_2802

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1444_99_2802

Case No Appeal No. EAT/1444/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR V GILLAPPELLANT

WHITBREADS PLCRESPONDENT

Before

His Honour Judge D Pugsley Mrs D M Palmer Mr G H Wright

Date 28 February 2001

[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondents NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENTS JUDGE PUGSLEY : This is a case which goes back for several years. Neither party was represented at the hearing before us, although we had the benefit of written submissions. We gratefully adopt the judgment of His Honour Judge Peter Clark in a preliminary hearing on 7th April 2000 as providing us, where relevant, a historical chronology. His Honour Judge Peter Clark was dealing with two different appeals. In the first of those appeals the tribunal came to the view that there was no error of law and it must be dismissed. In the second appeal the tribunal found that there was one issue and that related to the issue of jurisdiction. We do not apologise from rehearsing the background set out so helpfully by His Honour Judge Peter Clark of the preliminary hearing which took place on 7th April 2000:

"1. The appellant, Mr Gill was employment the respondent as a part-time cleaner at their Tun n'Snipe Public House in Doncaster from 4th December 1995 until his dismissal by letter dated 3rd September 1997. 2. It appears that during his employment he presented a complaint to an Employment Tribunal of breach of contract. Since his employment had not then terminated an Employment Tribunal sitting on 12th June 1997 declined jurisdiction under the Employment Tribunals (Extension of Jurisdiction) Order 1994. 3. Following termination of his employment he presented a further Originating Application on 9th September 1997 (Case No 2802086/97). That complaint came before an Employment Tribunal sitting at Sheffield on 1st December 1997. Again his complaint was dismissed. On this occasion he appealed to the EAT against that decision (EAT/193/98). 4. The appeal was heard by a division presided over by Judge Altman sitting on 21st June 1999. The appellant did not appear, but submitted written representations. The respondent was represented by Counsel. The appeal was allowed. The case was remitted to a fresh Employment Tribunal for rehearing on two issues: (1) what damage (if any) had the appellant suffered by reason of the respondent's breach of contract in failing to process the appellant's grievance? The EAT found, contrary to the finding of the Employment Tribunal, that the grievance procedure formed part of his contact of employment, and (2) whether the appellant had suffered a detriment in accordance with the provisions of s.44 of the Employment Rights Act 1996 ['ERA'] (Health and Safety cases). That claim had not been dealt with by the Employment Tribunal; the EAT held that it did arise for determination. 5. The rehearing of those two matters was listed before an Employment Tribunal sitting at Sheffield on 6th September 1999. On 18th August, by letter of that date received by the tribunal the following day, the appellant applied for a postponement of the hearing. His grounds for that application were that his claim for damages for breach of contract included a claim in respect of National Insurance contributions for the tax (commencing 6th April ) 1996-7 and 1997-8. 6. That application was refused by a letter from the tribunal dated 24th August. The Chairman's reason for refusing the application was that it would be unreasonable to adjourn for evidence of loss when the dismissal occurred as long ago as September 1997. The appellant then asked for a review of that 'decision'. In fact, we interpose, an order refusing an application for postponement under Rule 13(7) of the Employment Tribunal Rules of Procedure is not a decision within the meaning of Regulation 2(2) of the Employment Tribunals (Constitution etc.) Regulations 1993 and is therefore not reviewable under Rule 11. However, it is open to a party to renew his application; that is what in effect the appellant did; it was again refused by letter dated 27th August, for the same reasons as before. Th hearing on 6th September was to go ahead. 7. On 30th August the appellant wrote again to the Employment Tribunal. The letter, we see from the Sheffield Employment Tribunal date stamp, was received on 31st August. In that letter the appellant indicated that he had not received response to his review application and had therefore decided to appeal direct to the EAT for postponement of the hearing. He stated that he would not be at the hearing on 6th September, although he might swear out an affidavit if time allowed. 8. The appellant did indeed appeal to the EAT by a letter dated 30th August (EAT?1274/99). However, the copy of the Notice which is before us bears an EAT date stamp "received 17 September 1999"

. That is after the hearing fixed for 6th September. We also note that at the top of the document is a fax transmission record showing that it was faxed to the EAT at 09:46 on 17th September. 9. On 6th September an Employment Tribunal was convened at Sheffield consisting of a Chairman, Miss H A McWatt, apparently sitting alone. The decision promulgated with extended reasons on 23rd September 1999 does not identify any lay members sitting with the Chairman. The appellant did not appear. Nor did he submit written representations. 10. The Chairman referred to a letter from the appellant dated 5th September in which he had repeated his intention to appeal to the EAT. She caused a telephone enquiry to be made of the EAT. She was informed that no Notice of Appeal had been received. That would be correct, bearing in mind the date stamp of the Notice of Appeal eventually received here and the date and time of fax transmission thereon. 11. In these circumstances she dealt with the matter under Rule 9(3) of the Employment Tribunal Rules of Procedure. She decided that in the absence of the appellant, or any representations bearing on the two issues remitted by the EAT, she would dismiss the claim. 12. Finally, she gave a warning as to the possibility of a costs order being made in future if the matter were to be pursued by the appellant. No application for costs of that hearing was made by the respondent. 13. Against that decision the appellant lodged a further appeal (

EAT/1444/99

) by a Notice dated 2nd November 1999 and faxed the EAT on that date. 14. Both appeals, 1274/99 and 1444/99, come before us for preliminary hearing today. We shall refer to them respectively as the first and second appeals. 15. Again Mr Gill does not appear before us today. However, in addition to the grounds of appeal in reach Notice he has submitted skeleton arguments, sent letters and sworn affidavits in these proceedings. We have read and considered all the material with the papers before us. The question is whether those appeal raise any arguable point or points of law to go forward to a full inter partes hearing. 16. In correspondence Mr Gill has pressed us to consider the first appeal before the second appeal. We are content to deal with the cases in that order."

[2]The tribunal went on to consider the appeal against the refusal to grant a postponement and decided that there was no error of law and that that appeal must be dismissed. The tribunal then went on to consider the second appeal (

EAT/1444/99

). In terms the division of the Employment Appeal Tribunal dealing with the matter under His Honour Judge Peter Clark, disposed of the argument that there should have been no communication between the Employment Tribunal and the EAT on 6th September 1999 saying it was perfectly proper that the Chairman should have tried to find out whether an appeal had been lodged against the earlier postponement order and secondly, they saw nothing wrong in the Chairman giving a costs warning. There was, however, one final submission that the tribunal did consider. It seems that Miss McWatt sat alone on 6th September 1999 and in his Notice of Appeal the appellant says this:

"Further I with respect submit that the Tribunal held in Sheffield on the 6th September 1999 should have had 3 members and not just a chairperson given the subject matter."

In his skeleton argument the appellant said:

"The constitution of the tribunal was not correct to deal with matters under section 44 of the Employment Rights Act 1996."

[3]His Honour Judge Peter Clark noted that the power granted to a Chairman to sit alone is to be found in section 4 of the Employment Tribunals Act 1996 . Section 4(2) provides that, subject to subsection (5) the proceedings specified in subsection (3) shall be heard by a Chairman alone. Section 4(3) sets out a list of the proceedings which may be heard by a Chairman alone. They include claims for damages for breach of contract (section 4(3)(d)) but not claims brought under section 44 of the Employment Rights Act. At paragraph 29 of the preliminary hearing judgment, His Honour Judge Peter Clark states thus:

"As to the claim for damages for breach of contract, although provided for in s.4(30(d), that is subject to the provisions of s.4(5). We have in mind two decisions of the EAT on the effect of the discretion granted to a Chairman to sit with lay members on "s.4(3) cases" by s.4(5), namely Sogbetun v London Borough of Hackney [1998] IRLR 676 (Morison J) and Post Office v Howell [2000] IRLR 224 (CharlesJ). It is not, at this preliminary stage, appropriate to venture an opinion on the apparent divergence of views expressed in those two cases. What can be said, here, is that if the Chairman was bound to sit with lay members to hear the s.44 complaint, it was arguably a wrong exercise of her discretion, if she executed it at all, to sit alone to hear a breach of contract claim which was to be heard together with the s.44 claim."

[4]The judgment of His Honour Judge Peter Clark then questions whether it makes a difference that the Chairman did not actually "hear" the claims in the substantive sense, but dismissed them under Rule 9(3). Rule 13(8) provides, so far as it is material:

"(8) Any act required or authorised by these rules to be done by a tribunal may be done by a chairman except- (a) … (b) an act required or authorised to be so done by rule 9 or 10 which the rule implies is to be done by the tribunal which is hearing or heard the originating application; …"

His Honour Judge Peter Clark and members in the preliminary hearing said:

"We think it is arguable that where s.4 ETA requires a full Employment Tribunal to hear the case (see above) it is implicit that an order dismissing the claim under Rule 9(3) cannot be made by a Chairman alone by virtue of Rule 13(8)(b)."

[5]We have not had the benefit of oral argument from either the appellant nor the respondents. However, we have read all the submissions made by the appellant and in particular we note for the record that we have a skeleton argument dated 27th November 2000 from Mr Gill. On behalf of the respondents we have skeleton argument drafted by counsel, namely by Mr Gorton, dated 8th June 2000. The appellant reiterates those matters that were before His Honour Judge Peter Clark and we have had regard to those matters. The submission of the respondent is simply this: the Employment Tribunal on 6th September 1999 was faced with an applicant who elected not to attend at the Employment Tribunal nor present any written submissions as a substitute for his attendance. There is, the respondent contends, no judicial authority on the construction of Rule 9(3) and its relationship to Rule 13(8). Having set out the Rule the skeleton argument advances the contention that this Rule contemplates the act of not attending by the party is the trigger for the Employment Tribunal's power under Rule 9(3). It does not require the hearing to actually begin and crucially the Employment Tribunal to be assembled but rather only non-attendance to be established at the Employment Tribunal. The Employment Tribunal can either assemble and formally open the proceedings and then dismiss the application or it can do something less than that (like in this case) and yet still validly exercise its powers under Rule 9(3). The mere fact that the Employment Tribunal is directed to consider an originating application does not mean that the Employment Tribunal has to commence a formal hearing. Rule 13(8) permits the Chairman to sit alone unless prohibited by Rule 13(8)(a)-(c). The issue here is whether Rule 13(8)(c) prohibits the exercise of the Rule 9(3) power by a Chairman sitting alone.

(c) provides:

"An act required or authorised to be so done by rule 9 or 10 which the rule implies is to be done by the tribunal which is hearing or heard the originating application."

The respondent's contention is that Rule 9 does not imply the act is to be done only by the Employment Tribunal hearing the Originating Application. The respondent submits that Rule 9(3) can be exercised on the applicant not appearing at the Employment Tribunal, i.e., at the time and place fixed for the hearing and is not dependent on the full Employment Tribunal assembling and dealing with the case; it does not require the applicant to not appear before the Employment Tribunal. If it did the Rule would read "at a time and place fixed for the hearing and before the tribunal listed to hear the application". The respondent's contention is that a sensible reading of the Rule leaves the Employment Tribunal, however constituted, free to speedily and efficiently dispose of cases as and when the need arises.

[6]The respondents argue in the alternative that if they are wrong in that submission the Employment Tribunal was not seised of the section 44 complaint and thus section 4 of the Employment Tribunal Act was not offended. As the Employment Tribunal had jurisdiction to hear the contract complaint it validly exercised its discretion to hear and dismiss the complaint in the circumstances of the appellant (yet again) not appearing at a hearing.

[7]The respondent accepts that a complaint under section 44 of the Employment Rights Act is not a qualifying proceeding for the purposes of section 4 of the Employment Tribunals Act so that if the Employment Tribunal was hearing the complaint on 6th September 1999 by a Chairman sitting alone, the same would have no jurisdiction to do so. However, the respondents submits that the Employment Tribunal were not seised of the section 44 complaint at the time of the hearing on 6th September 1999 and thus were not dismissing any such complaint and thereby not offending the provisions of section 4 of the Employment Tribunals Act. In support of this contention the respondents point out that the Originating Application of the appellant under Box 1 made a clear complaint of breach of contract and no complaint of detriment under section 44; the appellant had never made any application to amend his Originating Application to include a claim for section 44 detriment and that the Employment Appeal Tribunal on 21st June 1999 did observe that a section 44 complaint was to be discerned from the body of the Originating Application, it did not however give the appellant leave to amend the application to claim a section 44 breach. The most the Employment Appeal Tribunal decided (and could decide) was that there were pleaded facts which could give rise to such a claim. As the Employment Appeal Tribunal stated:

"29 … the application did raise matters purporting to be under s.44: they were not addressed as such by the Employment Tribunal; that they erred in not doing so; and that new Tribunal should consider; that they erred in not doing so; and the new Tribunal should consider it and of course in preparing for that, it is right that the Respondent should have an opportunity should they so wish to file a further statement of their case in relation to that. All the serious matters which have to be raised, and which may of course completely defeat the claim, can be properly canvassed."

[8]The respondents point out that the facts pleaded by the appellant were not accompanied by the label that he was pursuing as section 44 Employment Rights Act case. It was therefore necessary for an amendment application to be made. No such application had been made by 6th September 1999 and thus no such claim was before the Employment Tribunal.

[9]The respondents' case is that all the Employment Tribunal had before them was a claim for breach of contract and that was a qualifying proceeding under section 4 of the Employment Tribunals Act and the Chairman had power to sit alone to hear this complaint. The fact that the Chairman exercised its discretion to sit alone is seen by the fact that she did sit alone and the fact that the election or decision does not appear in the extended reasons is not a ground on which to suggest that the Chairman did not consider and decide the point. The argument is simply this: as the Chairman was simply dealing with a Regulation 9(3) application or exercising its powers under Regulation 9(3), the section 4(5) guidance would not be a any real importance or significance thus entitling the Chairman to deal with the proceedings under Regulation 9(3).

[10]If one looks at the extended reasons of the hearing of 6th September 1999, at paragraph 3 it is said:

"The Employment Appeal Tribunal remitted the applicant's claims to the Employment Tribunal for two matters to be adjudicated upon – the applicant's losses resulting from his dismissal and the claim of detriment vis a vis the provisions of Section 44 of the Employment Rights Act 1996. The applicant has never suggested, despite his non-attendance at the Employment Appeal Tribunal, that he was not aware of the content of the decision dated 21 June 1999."

[11]The difficulty about the respondents argument is to be contained in paragraph 3 of the extended reasons where, in terms, the tribunal state that the Employment Appeal Tribunal remitted the appellant's claim to the tribunal for two matters to be adjudicated upon. The appellant's losses resulting from his dismissal and the claim of detriment vis a vis the provisions of section 44 of the Employment Rights Act 1996 . It seems to us wholly artificial to suggest that the tribunal was not at that stage seised of the section 44 claim. The respondents properly concede that the Chairman sitting alone did not have jurisdiction to sit alone to hear a complaint under section 44. We have carefully considered the argument that Rule 9(3) does not require a hearing to actually begin or the Employment Tribunal to be assembled but only non-attendance by the applicant to be established at the Employment Tribunal.

[12]We have not had any judicial authority cited to us on the construction of Rule 9(3) and its relationship to Rule 13(8). However, it seems to us, implicit that where section 4 of the Employment Tribunals Act requires a full Employment Tribunal to hear the case, as in case of section 44, it is implicit that an order dismissing a claim under Rule 9(3) cannot be made by a Chairman sitting alone by virtue of Rule 13(8)(b). If Parliament has laid down that there are certain actions which can only be heard by a full tribunal we do not consider the claim can be dismissed under Rule 9(3) by virtue of Rule 13(8)(b). In plain language, we consider that if only a full tribunal can hear the case then the proper interpretation of Rule 13(8) is that only a full tribunal can exercise its powers to dismiss under Rule 9(3).

[13]We have then asked ourselves this question that if the tribunal had no power to dismiss this claim under Rule 9(3) because only a Chairman was sitting alone and she was not empowered to do so by the provisions of Rule 13(8), whether it can be said that nevertheless the Chairman's dismissal of the case under Rule 9 is still valid as far as the breach of contract action is considered which she was empowered to hear alone.

[14]One of the advantages claimed for a tribunal system is that it values robust common sense rather than lawyer's formulism. We have not had the benefit of oral argument and we have considered the skeleton arguments before us. But it seems to us wholly misplaced to say if a tribunal has to be fully constituted to hear matter (a) then a tribunal consisting of a Chairman alone can properly exercise its powers in respect of action such as breach of contract which does not need a full tribunal.

[15]We do not consider it necessary to resolve a divergence of view expressed in the case of Sogbetun v London Borough of Hackney and Post Office v Howell on the facts of this particular case. As a matter of reality, the breach of contract and the section 44 claim were both going to heard at one and the same time. We consider that it would be wholly academic to say that the tribunal was correct to consider the breach of contract on its own when it was quite clearly contemplated the tribunal was going to consider both actions together. It is wholly artificial to say that if a full tribunal is required to consider one case that a Chairman is validly exercising her discretion to sit alone in the other case albeit a Chairman is empowered to sit alone. There is no hint in the decision that the Chairman exercised her discretion.

[16]The reality is that had the Chairman appreciated she did not have power to sit under section 44, we consider it would have been a perverse decision by a Chairman to exercise the discretion to sit alone on one aspect of the case. We therefore consider that the appropriate course is to remit this action to be afresh by a different tribunal consisting of a Chairman and two members and thus avoid the difficulties that have arisen. The appeal is therefore allowed in respect of both the actions under Section 44 and the breach of contract.

[17]We find it unnecessary to determine whether the original hearing in the case of the breach of contract was a nullity, as suggested by Sogbetun v London Borough of Hackney or, was a case in which the Chairman by failing to consider the exercise of her power under s.4(5) of the Industrial Tribunal Act 1996 was a material irregularity as suggested by Post Office v Howell . In either event we consider both actions should be considered by a full tribunal.