MR BERNARD SMYTH v LONDON GENERAL TRANSPORT SERVICE [2001] UKEAT 1452_99_1506

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1452_99_1506Case No Appeal No. EAT/1452/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR BERNARD SMYTHAPPELLANTLONDON GENERAL TRANSPORT SERVICERESPONDENT
Before
Mr Justice LindsayLord Davies of CoityDate 15 June 2001
[1]APPEARANCES For the Appellant IN PERSON MR JUSTICE LINDSAY (PRESIDENT) We have before us, by way of being an adjourned preliminary hearing, the appeal of Mr Bernard Smyth in Smyth v London General Transport Services Ltd and, today, Mr Smyth has appeared before us in person. There is quite a procedural history that has to be borne in mind in this case.[2]On 6 May 1999 Mr Smyth presented an IT1 form of complaint for unfair dismissal and wrongful dismissal that was given a number that ended (it is not always clearly written) either 1887/99 or 1881/99 but one sees references to both those numbers. On 11 May 1999, LGTS Ltd put in its IT3. They said that Mr Smyth had been dismissed as unfit to drive on ill-health grounds. On 6 September 1999 there was a hearing before the Employment Tribunal and before any formal decision was reached, (or at any rate promulgated in writing) on 15 September 1999 Mr Smyth issued a second IT1 for wrongful dismissal and breach of contract and that was given a number which ended 34/99. That second IT1 said inter alia:
"Reason for Applying Out of Time . The Wrongful Dismissal claim here concerned is a re-application for it was originally jointly launched (though not detailed) with an Unfair Dismissal claim; Case No 2301881/99, heard on 06-09-99. The Wrongful Dismissal claim was however not heard while I had been led to believe that my having had the original application accepted meant that the Wrongful Dismissal claim would also be heard. Re-application for the claim has therefore been necessary."
[3]On 24 September, Summary Reasons were promulgated in the first IT1 case, 1887/99. It held that there had been no unfair dismissal. It also said that the claim for wrongful dismissal had been withdrawn and then dismissed on withdrawal. This decision, promulgated, as I say, on 24 September, was a decision of the Employment Tribunal at London South under the Chairmanship of Mr Adrian Keane. It was a full three-member panel consisting not only of Mr Keane, but also Dr B Redman and Mr J Bartell. The decision was:
"The unanimous decision of the Tribunal is that the Applicant was not unfairly dismissed."
Amongst those Summary Reasons at paragraph 2, one finds this:
"At the start of the hearing, the name of the Respondent was amended, by agreement, to "
London General Transport Services Ltd" and [ more importantly, and still continuing with the quote ] "the complaint of wrongful dismissal was dismissed on withdrawal by the Applicant." And in paragraph 4, turning to the remaining subject, unfair dismissal, the Tribunal said this, still in their Summary Reasons:
"The Tribunal was satisfied, on the evidence adduced, including in particular the evidence relating to the internal appeal, that the employer had acted reasonably in treating the Applicant's ill-health and consequent absenteeism as a sufficient ground for dismissal; that the employer had adopted a fair dismissal procedure, having consulted the Applicant, having informed themselves properly of the true medical position, and having considered alternative employment; and that in all the circumstances, the dismissal, having regard to the terms of section 98(4) Employment Rights Act 1996 was not unfair."
[4]On 27 September 1999 the respondent, LGTS Ltd, put in an IT3 to the second of the IT1s that Mr Smyth had lodged. The IT3 to the second one said, inter alia, this:
"The Applicant has previously issued Tribunal proceedings alleging wrongful dismissal, under case number 2301881/99, which has been decided. Cause of action estoppel and/or issue estoppel apply. This new IT1 is an abuse of process. In view of (2) and (3) above, [ and I should say that (2) is an assertion that the originating application, that is to say the second one, was out of time ] the Respondent requests that the originating Application be struck out/dismissed."
That was 27 September 1999. On 12 October a letter was written to Mr Green, whom I apprehend was assisting Mr Smyth, to say:
"It appears that your complaint of wrongful dismissal was withdrawn by you at an earlier hearing (see case number 2301881/99). That being so the Chairman considers that this originating application should be dismissed on the grounds that the matter has already been dealt with or on the grounds that it is frivolous in the sense of having no reasonable prospect of success. If you wish to give reasons why this should not be done please give reasons in writing by 21 October 1999."
On 23 October Mr Smyth asked for a review of the decision which had been promulgated on 24 September and on 1 November asked also for Extended Reasons. On 10 November the second of the IT1s, 34/99, was struck out as being frivolous. The Tribunal said:
"In exercise of powers conferred on me under Rule 13(2)(e) of the Employment Tribunals Rules of Procedure 1993, I order that the Originating Application be struck out on the ground that it is frivolous."
And Extended Reasons were then given as follows:
"1. On 15 September 1999 the Applicant presented an Originating Application to the Tribunal, by which he claimed wrongful dismissal. 2. The Respondent served a Notice of Appearance on 27 September 1999. The Respondent submitted that the Applicant's complaint of wrongful dismissal had been withdrawn by the Applicant at the full merits hearing of the Applicant's original complaint – Case No. 2301881/99. 3. It is recorded in the decision of case 2301881/99 that the Applicant withdrew his complaint at the hearing. 4. On 12 October 1999 the Applicant was warned that unless written reasons be given within 14 days as to why an Order should not be made a Chairman would consider striking out the Originating Application on the grounds that it was frivolous, in the sense of having no reasonable prospect of success. 5. On 20 October 1999 the Tribunal received a letter in response from the Applicant. The Applicant claims that the Chairman said he would not hear his case of wrongful dismissal, and claimed not to have withdrawn his claim. 6. The Applicant may, if appropriate make an application for a review of the decision in case no 2301881/99. He cannot effect a review by presenting a Second claim on the matter. 7. Therefore, I order that the Originating Application be struck out on the grounds that it is frivolous."
And that decision was sent to the parties on 10 November 1999.[5]On 17 November 1999 a review was refused and full Extended Reasons were refused in respect of the first decision. On 30 November 1999 Mr Smyth lodged a Notice of Appeal at the Employment Appeal Tribunal. It was not a formal Notice but rather framed as a letter. It began:
"If it is possible I wish to appeal against the decision of the Employment Tribunal in the case of Smyth v London General Transport Service Ltd Case No 2301881/99 (heard on 6 th Sept) and related case no 6103634/99 (struck out)."
So it was an appeal on the face of things, against both the decisions that had by then been made.[6]On 6 January 2000 the Employment Appeal Tribunal replied, as it does time after time in such cases, to point out, that a pre-cursor of a correct appeal in the ordinary course is Extended Reasons and that it would be necessary for Mr Smyth to get Extended Reasons for whatever decisions were sought to be appealed. In the second of the two decisions it had Extended Reasons but in the first it did not.[7]On 7 January 2000 Mr Smyth asked the Employment Tribunal for Extended Reasons. On 20 March 2000 the matter came before the Employment Appeal Tribunal and on that day it came before me sitting with Mr N D Willis and Miss S M Wilson and we heard Mr Smyth, who appeared on that day, and there were some points that we considered were such that we needed further information and we sent the matter away for the further information to be gathered together. We also indicated that an affidavit would be necessary from Mr Smyth and on 30 March 2000 Mr Smyth made an affidavit. It said, amongst other things, this:
"On the 6 th Sept. 99 at the Employment Tribunal hearing (Smyth v LGTS Ltd) I did not wish then, or at all to withdraw my claim of wrongful dismissal. It was the Chairman's decision he would not hear this claim, and when I objected he said I would not be compensated twice."
On 18 May the respondents' solicitors wrote to the Employment Appeal Tribunal. The individual concerned at David Wagstaff & Co appears to have been Mr Wagstaff himself and he said this:
"I have retrieved my old file from storage and looked at my file note of the hearing on 6 th September 1999. At that hearing the Appellant was represented by Mr Tindall of the Transport & General Workers' Union. My note records (although it is in short hand form) that Mr Tindal explained to the Tribunal that his client had an unfair dismissal claim and also an claim regarding entitlement to sick pay. My note goes on to record that the chairman of the Tribunal told Mr Tindall that he could not see that there was a breach of contract claim and was not minded to allow it. The note goes on to record that Mr Tindall withdrew the claim for wrongful dismissal and that he confirmed the only remaining issue was unfair dismissal. The Chairman then announced that the wrongful dismissal claim was dismissed on withdrawal."
A little later he says:
"It is fair to say however that there was clearly some discussion between the chairman and Mr Tindall as to the grounds of the wrongful dismissal claim and that my note clearly indicates that Mr Tindall withdrew the claim."
That, as I say, was the 18 May. On 19 June the Chairman made his comments on what had by then transpired to be a form of complaint. He exhibits a photocopy of his contemporary handwritten note, explaining matters more fully in the letter and, by reference to the note, he says:
"In this case it will be seen that I have recorded that the name of the Respondent was amended by agreement in the way indicated, what the issues were in the case of the complaint of unfair dismissal ('UD'), and that the complaint of wrongful dismissal ('WD') was dismissed on withdrawal by the Applicant. When I enquired about the complaint of wrongful dismissal, I recall that there was some discussion between Mr Smyth and his representative, Mr Tindall, a trade union representative. However, I also recall that Mr Tindall made it quite clear that the complaint of unfair dismissal was being withdrawn. I then declared that the complaint of wrongful dismissal was dismissed on withdrawal by the Applicant and made the written note to which I have referred. I have no recollection of any dialogue between me and Mr Smyth of the kind alleged in his affidavit or at all: at this stage of the hearing, I did not speak to Mr Smyth directly."
His reference to "Mr Tindall made it quite clear that the complaint of unfair dismissal was being withdrawn", is plainly a typing error in that, consistently with all his other references, he understood, and Mr Tindall indicated, that it was the complaint of wrongful dismissal that was being withdrawn.[8]On 4 December 2000 a second affidavit of Mr Smyth was made and he says inter alia :
"The chairman did not enquire about my claim of Wrongful Dismissal, but rather, ruled he would not hear such a claim, at which point I rose my arm. The chairman saw my arm, and I objected to his decision, at which point the chairman ordered a brief adjournment. The chairman has omitted this fact, both from his letter and also his notes on the hearing."
On 13 December the matter came back to the Employment Appeal Tribunal, still as an adjourned preliminary hearing. Counsel then appeared for Mr Smyth under the ELAAS scheme and an extension was asked for and granted. The matter now comes back to us for the third time - a different panel than the first, but it is the third time at which it has been opened to the Employment Appeal Tribunal.[9]Mr Smyth overlays the case with considerable doubts that he has, indications of confusion or maladminstration on the part of the Employment Tribunal Service and on the part of the Employment Appeal Tribunal itself and even raises the possibilities (although he admits they are speculative) as to some form of bad practice or even conspiracy.[10]We are prepared to look at the matter leaving aside procedural points such as that there are no Extended Reasons of the first decision, leaving aside disputes as to whether notice was given in time for an application for a review and leaving aside also doubts or difficulties about whether decisions were sent to the correct addresses or not.[11]The underlying questions which underline the whole process are two. First of all, was wrongful dismissal indeed withdrawn and, secondly, could a review have led anywhere to Mr Smyth's benefit? In relation to the question of withdrawal of the claim for wrongful dismissal, the Chairman who heard the case with two others on 6 September 1999 records as we have seen, his understanding of the withdrawal. The decision as we have already cited, says, "and the complaint of wrongful dismissal was dismissed on withdrawal by the Applicant."[12]The Chairman has been asked in some detail as to what happened and we have seen his answer that I have read already from the letter of 19 June. His written contemporary note confirms his letter. One sees from that "WD dismissed on withdrawal by (A)" exactly what one would expect in a handwritten contemporary note if wrongful dismissal was withdrawn and dismissed having been withdrawn by (A), the applicant.[13]The respondents' solicitor, we have seen, Mr Wagstaff, confirms that withdrawal of wrongful dismissal. For all that, Mr Smyth is adamant that his wrongful dismissal claim was not withdrawn, or, at any rate, he appeared at first to be so adamant, but at the hearing on 6 September 1999 he had a representative, Mr Tindall. The Chairman would naturally attend to what Mr Tindall said. The ordinary dialogue in such a case is, of course, between the Tribunal and the representative. It is plain that Mr Smyth is dissatisfied with Mr Tindall. He complains inter alia that Mr Tindall misunderstood him. It could be that there was some misunderstanding between Mr Tindall and Mr Smyth as to the instructions that Mr Tindall was given. On balance, though, the probability, as it seems to us, is that Mr Tindall did indeed agree the withdrawal of wrongful dismissal in cross-talk with the Chairman. It may be that Mr Smyth failed to appreciate that that is what had happened. That it was gone into seems clear, because although the Chairman's notes do not recall this, the other versions do make the point that an adjournment was specifically allowed, as it would seem, for the purpose of Mr Tindall discussing more fully with Mr Smyth whether or not to withdraw wrongful dismissal. And it seems to us plain that when that discussion was over and that adjournment was concluded and the matter was restored, Mr Tindall then indicated that the claim was indeed withdrawn and accordingly it was then dismissed.[14]Mr Smyth does not, in turn, say what the purpose of the brief adjournment was but it seems to us unthinkable that if the Chairman had allowed an adjournment to resolve whether wrongful dismissal was withdrawn that he would then have recorded it as having been withdrawn if it had not been. We have heard nothing direct from Mr Tindall but we have seen a letter from Messrs Pattison & Brewer received on 6 March 2000 which says:
"The Employment Tribunal dismissed Mr Smyth's complaint of wrongful dismissal on withdrawal by the applicant. Mr Smyth strongly objects to this on the basis that his complaint of wrongful dismissal was not withdrawn by him. However, we have been advised by Ron Tindall that he in fact did withdraw this application with Mr Smyth's authority. Ron Tindall says that at the beginning of the hearing, the Tribunal Chairman suggested that there was no legal merit in the claim of wrongful dismissal. There was then a short adjournment whilst Ron Tindall discussed this matter with Mr Smyth, after which Ron Tindall withdrew this aspect of the claim with your member's consent. On this basis, there would be no ground for arguing on appeal that the Tribunal erred in law in dismissing the application of wrongful dismissal on withdrawal by the applicant."
So we have not heard directly from Mr Tindall but we have heard that, and we have already seen the other versions of the event. We have not heard, either, from the Lay Members that sat with the Chairman, Mr Keane.[15]All in all, we are quite unable to conclude that wrongful dismissal was not withdrawn; rather, on the balance of probabilities, it seems to us, that it was. Indeed, today, in all the discussion, Mr Smyth has agreed that he did withdraw although, as he puts it, he withdrew under what he calls distress. He says that he should not have withdrawn it, but that, of course, presupposes that he did. We, on balance, have to conclude that there was a withdrawal, at any rate so far as the appearance of things was concerned, by which I mean what the representative of the applicant then said, what the representative of the respondent then understood and what the Chairman and the Lay Members of the Tribunal then understood. Once one gets to that stage - there was, indeed, a withdrawal of the claim for wrongful dismissal - then it can only have been right for the Employment Tribunal to have dismissed the second IT1, that of 15 September. One cannot have proceedings for a given complaint based on their withdrawal one day only to have the same complaint lodged afresh three days later. In turn there can be no complaint that wrongful dismissal was not ruled upon in the decision of 24 September; it was ruled upon in the sense that it was ruled that it had been dismissed on withdrawal.[16]But, so far as concerns consideration of a failure to review the decision of 6 September as recorded in Summary Reasons that were promulgated, we need to remind ourselves of Rule 11 of the Employment Tribunal Rules:
"(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 staff; (b) a party did not receive notice of the proceedings leading to the decision; (c) the decision was made in the absence of a party; (d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing; or (e) the interests of justice require such a review."
[17]An applicant for a review, if to have any chance of success, has got clearly to bring himself within one or other of those cases. So far as concerns a review of the dismissal of wrongful dismissal, for reasons we have already given we cannot take it that wrongful dismissal was not withdrawn. We have no sufficient material to disbelieve in any way the paragraph 2 of the decision sent out on 24 September that said, "and the complaint of wrongful dismissal was dismissed on withdrawal by the Applicant."[18]On the basis that wrongful dismissal was withdrawn, there can have been no basis for a review of that decision. The interests of justice would have been the only relevant heading but if, as we have taken to be the case, that probability was that the Chairman could take it that wrongful dismissal was withdrawn, then the interests of justice, namely, finality of proceedings, would militate in favour of the dismissal being left unchanged. To seek a review of the dismissal of wrongful dismissal would have lead nowhere or, at any rate, nowhere that would have assisted Mr Smyth.[19]So far as concerns seeking a review of the decision so far as it involved unfair dismissal (and, leaving aside, as we said we would, questions about whether the review was sought in or out of time because that gives rise to all sorts of doubts that Mr Smyth has as to letters being sent or not sent, being hidden or being destroyed or being taken off the file or not being sent to the right address) the Summary Reasons given were concise. We have seen them in paragraph 4 which we cited earlier. No reason for a review appears in the informal Notice of Appeal, still less one that falls within Rule 11 that we have cited. Nor have we heard anything from Mr Smyth that suggests that any reasonable ground for a review, so far as concerns unfair dismissal, has been shown to us. No particular identified interests of justice in relation to unfair dismissal have appeared.[20]So far as the Notice of Appeal concerns, if it does, the Employment Tribunal's decision on unfair dismissal (not as to a review but as to the decision itself) and, again looking at the decision, short as it was, in relation to unfair dismissal, we have not been able to detect any error of law, nor has Mr Smyth suggested in any way that any reasonable ground has emerged. All in all, leaving aside the considerable doubts and difficulties with which Mr Smyth overlays the matter (as he is, of course, entitled to do) if one comes back to the basic questions it seems to us that there is nothing here that discloses any arguable error of law and, accordingly, even at this preliminary stage, the appeal of Mr Smyth in all its aspects is such that we have to dismiss it.