MR C BOWDEN v SIGNET GROUP PLC [2001] UKEAT 1503_00_0205

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1503_00_0205Case No Appeal No. EAT/1503/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR C BOWDENAPPELLANTSIGNET GROUP PLCRESPONDENT
Before
Mr Justice LindsayLord Davies of CoityDate 2 May 2001
[1]APPEARANCES For the Appellant MR C BOWDEN (The Appellant in Person) MR JUSTICE LINDSAY (PRESIDENT) We have before us by way of a Preliminary Hearing the appeal of Mr Bowden in Bowden v Signet Group plc . This morning Mr Bowden has appeared in person before us. I should say that immediately before this hearing there was a hearing of another related matter where Mr Bowden was appealing against the Registrar's refusal to extend time for the lodging of a Notice of Appeal. In that matter, as is the custom, I sat on my own and delivered a judgment. For a fuller picture of the whole chronology one truly needs to read both judgments together but I would hope that we will set out enough of the matter in this part of the case to make the present judgment intelligible.[2]On 12 December 1996, Mr Bowden lodged an IT1 for constructive dismissal but at the time he was still in Signet's employ. The IT1 itself indicated that he was still in Signet's employ because it was dated, as I mentioned, 12 December 1996 and in box 6 – 'please give the dated of your employment' – he claimed that his employment was from 6 December 1996 to the end of December 1996, so plainly the employment was still current at the time. There is no suggestion in the IT1 that notice had by then been given to Mr Bowden by the Signet Group. That IT1 was given the reference number which ended 62/96.[3]Noticing immediately that the employment still continued and yet that the claim was for dismissal, albeit constructive dismissal, the Employment Tribunal, on the very next day, 13 December 1996 wrote to Mr Bowden asking him whether his claim was not premature. On 16 December, Mr Bowden wrote to say that he believed that his employment would terminate on 31 December 1996; so, again, that in itself suggested that it was current as at 12 December 1996, when the IT1 had been presented.[4]On 30 December 1996, Signet put in its IT3 and, amongst other assertions, asserted that there could be no constructive dismissal as there had been no dismissal at all, as Mr Bowden was still working for the company. Unsurprisingly, on 30 December 1996, Signet, in its IT3, took the point that there had in fact been no dismissal. They took it in succinct form; they said:
"Mr Bowden is still employed by the company and as such we cannot respond to a claim of constructive dismissal."
The case was not dropped though; it continued.[5]On 7 January 1997, the Employment Tribunal referred to Section 111 of The Employment Rights Act 1996 , in a letter to Mr Bowden, the Tribunal said:
"I am directed by a Chairman to acknowledge your letter of 16 December 1996 and to reply:- (1) Section 111 Employment Rights Act 1996 in its material part provides:- "
An industrial tribunal shall not consider a complaint …. Unless it is presented to the tribunal before the end of the period of 3 months BEGINNING WITH the effective date of termination…. Where a dismissal is with notice an industrial tribunal shall consider a complaint……. if it is presented after the notice is given but before the effective date of termination." (2) It was in the context of section 111 Employment Rights Act 1996 that the enquiry as to the possible premature presentation of your Originating Application was raised. (3) The timing of the presentation of an application impacts upon tribunal's jurisdiction. (4) In light of the details set our above do you consider that your Originating Application was not presented prematurely?" Correspondence nonetheless continued. On 20 January 1997 the Employment Tribunal told Mr Bowden that he really ought to seek legal advice.[6]One way or another – and there might be a dispute about exactly how it came to pass – on 10 March 1997 there was a pre-hearing review which also included a hearing at which directions were given, at the Employment Tribunal at Middlesbrough. No award of costs, properly-so-called, was then made, but, as is not uncommon, a costs warning was given by the Tribunal. I had the circumstances of that costs warning explained to me in the earlier case before me; the position was that the Chairman orally indicated that if the case was persisted in there might be a risk that Mr Bowden would have to pay costs, the costs, presumably, of Signet. An envelope was sealed which had within it a note from the Chairman to be opened after the conclusion of a substantive case, if it went ahead, which would give the Tribunal which heard the substantive case notice of the fact that at an earlier hearing, namely, that of 10 March 1997, Mr Bowden had been warned that if he persisted in the case he was at risk as to costs. There was no formal order made for a deposit under Rule 7, but that sort of warning, as I have described, was given.[7]On 3 November 1997 - and one sees therefore quite a considerable gap between the pre-hearing review and the eventual next relevant step – that IT1 62/96 was dismissed on withdrawal by Mr Bowden. Mr Bowden indicated to the Tribunal that he withdrew it and accordingly, ultimately, an order was made for its dismissal on that withdrawal. That was in 1997.[8]On 29 October 2000, Mr Bowden applied for a review of the decision of 62/96. He wrote:
"My grounds are that in the case 2501762/96 a preliminary hearing and hearing for directions was held in Middlesbrough on 10 th March 1997. It was necessary to establish the validity of my claim and the existence of an ACAS settlement for the jurisdiction of the Tribunal. These matters were not resolved and the chairman proceeded to hear evidence, state opinions, reach decisions and apply a costs warning without establishing jurisdiction. I believe this action was contrary to normal Tribunal procedures and the interests of justice."
That was the application for a review of the decision of 10 March 1997, or perhaps, more strictly, that of 3 November 1997. On 20 November 2000, the Employment Tribunal, by the Regional Chairman, Mr David Reed, said:
"I do not consider that any review or other interlocutory hearing is appropriate. My reasons are as follows:- He then sets out a number of reasons and at the end of the decision says: "
On any reckoning the application which you now seek to make is out of time by more than 3½ years. The lapse of such a period of time is by no means inconsequential but perhaps of greater moment is the fact that the application in respect of which the opinion was expressed by the Tribunal which sat on 10 March 1997 was dismissed on 28 October 1997 on withdrawal by you." [I just paused because that date of 28 October 1997 is sometimes expressed as 3 November which is the date I have given] That withdrawal took place after arrangements had been made for a preliminary hearing and was the result of word of your wish to withdraw communicated by your solicitors."[9]On 29 November 2000, the Employment Tribunal received Mr Bowden's Notice of Appeal. It is directed against the refusal to review of 20 November 2000. The Notice of Appeal says this:
"I have challenged that the Tribunal had no jurisdiction in the case 2501762.1996. A pre-hearing review and hearing for directions was called in Middlesbrough on 10 th March 1997. The question of jurisdiction should have been treated as a primary issue as both the Tribunal and the respondent had promulgated that my originating application had been presented prematurely. There was also my contention that the case had been compromised by an ACAS settlement. The hearing did not attempt to address these issues and therefore did not establish its jurisdiction. This Tribunal did apply a costs warning which ultimately caused my withdrawal. Although I did have the opportunity of a preliminary hearing in November 1997 it was not without an unreasonable risk of a substantial cost award. I believe this was not in accordance with normal Tribunal procedures and was certainly not in the interests of justice."
We also have before us a very full skeleton argument from Mr Bowden, and documents including transcripts of 'phone calls made at or around 10 March 1997.[10]Because the IT1 was presented before any dismissal of Mr Bowden and without notice having been given to him, it is plain that the Employment Tribunal and Signet were right to raise that issue, namely, that the IT1 had been premature and that the Employment Tribunal therefore had no jurisdiction to hear the IT1. But that is not to say that the Employment Tribunal had no jurisdiction to hear the question of whether it had jurisdiction. Some Court or Tribunal, when such an issue is raised, has to hear questions such as whether there is or is not jurisdiction, and here the Employment Tribunal was plainly the correct body to hear the question of whether, indeed, it had jurisdiction to hear the IT1. So it was quite right for the Tribunal at the first pre-hearing review on 10 March 1997 to look into matters. Equally, the Tribunal was, in our view, perfectly entitled to warn Mr Bowden that if he proceeded with what seemed to them to be a case doomed to failure that he was at risk of having to pay the costs of the other side, and of course, whatever costs he might incur himself. It was a wise warning to give. If Mr Bowden had proceeded, the likelihood would have been – perhaps one can put it more higher than a likelihood – the probability would have been that 62/96 would have had to have been dismissed for want of jurisdiction on the grounds that it had been a premature application. It was both wise and to some extent kindly of the Tribunal to point out to Mr Bowden the risk that he would run if he persisted. Of course, Mr Bowden now looks upon that warning as something that deterred him from proceeding further. One can see that it could well have had that effect, but it cannot be said that there was no jurisdiction to hear the matter by way of pre-hearing review on 10 March 1997, nor that it was in any way improper of the Tribunal to have given the warning that it did on that day. On 10 March 1997, the Tribunal was, in our view, fully entitled, as a matter of jurisdiction, to do as it did.[11]There was then no timely appeal against the decision of 10 March 1997. Then, as we have explained, on 3 November 1997, (although it may have been a date instead in late October), the case 62/96 was dismissed on withdrawal, the withdrawal having been made by Mr Bowden. The power to review that decision on 29 November 2000, was a power conferred by Rule 11 of the Employment Tribunal Rules. Rule 11(1) which says:
"Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or 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 [then that is explained] and (e) the interests of justice require such a review"
Sub rules (4) and (5) say:
"(4) An application for the purposes of paragraph (1) may be made at the hearing. If no application is made at the hearing, an application may be made to the Secretary at any time from the date of the hearing until 14 days after the date on which the decision was sent to the parties and must be in writing stating the grounds in full. (5) An application for the purposes of paragraph (1) may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success."
That 14 days can be extended under Rule 15.[12]After so long an interval, namely, between March 1997 and November 2000, a truly clear and powerful case would need to made for a review, given that there is no suggestion that Rule 11(1)(a)-(d) was satisfied, and hence that that left only sub paragraph (e) - the interests of justice. What interest of justice is engaged when the position was that the IT1 62/96 was withdrawn, as the Chairman explained in his response, which I have already read, but which said:
"That withdrawal took place after arrangements had been made for a Preliminary Hearing and was the result of word of your wish to withdraw communicated by your solicitors."
No fraud, or relevant mistake, or undue influence is alleged in relation to the withdrawal and dismissal of case 62/96.[13]We fail to see any error of law in the Chairman's decision which is under appeal. We can interfere with the Chairman's decision not to review the 3 November 1997 decision only if we are able to spot some arguable error of law in the Chairman's decision. So far from finding an error of law, we can only conclude that no Employment Tribunal could reasonably have held other than did Mr Reed on that day. We find no arguable error of law in Mr Bowden's present appeal and accordingly must dismiss it, even at this preliminary stage.