MISS T FISHWICK v MITIE CLEANING NORTH LTD [2001] UKEAT 248_01_0108

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 248_01_0108

Case No Appeal No. EAT/248/01 EAT/249/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS T FISHWICKAPPELLANT

MITIE CLEANING NORTH LTDRESPONDENT

Before

Mr Justice Lindsay

Date 1 August 2001

[1]APPEARANCES For the Appellant Mrs J Fishwick Mother MR JUSTICE LINDSAY (PRESIDENT) We have before us two related preliminary hearings; in each case the Appellant is Miss T Fishwick. In each case she has been represented before us by her mother, who today has addressed us with moderation, and it is quite plain that both Miss Fishwick and her mother burn with a sense that no sufficient justice was done at the Tribunal. We have to examine whether that sense of injustice is in fact based on an error of law because we cannot over-emphasise that we have no power to deal with complaints generally; we have to find some error of law in the Tribunal's Decision.

[2]The history of the two matters is that on 11 April 2000 Miss Fishwick lodged an IT1 form of complaint for constructive dismissal, unfair dismissal and for unauthorised deduction from wages. She had worked for Mitie Cleaning North Ltd from 14 September 1998 to 14 January 2000.

[3]On 17 May Mitie put in their IT3 and on 19 October there was a hearing at the Employment Tribunal. On 3 November 2000 the Decision was sent to the parties. It was the Decision of the Tribunal at Manchester under the chairmanship of Mrs C Porter, sitting with Mrs Dawson and Mrs Forrest. The Decision was:

"The unanimous decision of the Tribunal is that the applicant's claims for unfair dismissal and unauthorised deductions from wages are hereby dismissed."

[4]The reasons given were headed "Summary Reasons" and they included that "we find that the applicant was paid any shortfall in the following week, number 44. There have been no deductions from the applicant's wages." And a little later:

"The respondent [Mitie] committed no fundamental breach of contract entitling the applicant to resign in response thereto. There was a change in the applicant's terms and conditions of employment when in November 1999 her hours were reduced on two weeks' notice. That was a fundamental breach of contract but the applicant acquiesced in that breach. She worked without protest until she resigned on 10 January 2000."

And a little later still:

"In all the circumstances we find that the respondent was not guilty of any fundamental breach of contract and the applicant was not dismissed."

[5]Now I mentioned that the Reasons were headed "Summary Reasons" because the rules are such that one cannot appeal in the ordinary way against Reasons which are "summary"; one has first to obtain Extended Reasons and at this stage, only Summary Reasons existed.

[6]On 6 December 2000, notwithstanding that only Summary Reasons had been given, Miss Fishwick signed a Notice of Appeal to the Employment Appeal Tribunal saying:

"Please see attached sheet and statement - showing new evidence not previously considered by the Tribunal - as grounds of this appeal."

It was, no doubt, pointed out to Miss Fishwick, perhaps by the Employment Appeal Tribunal, perhaps otherwise - one way or another it was drawn to her attention that an appeal to the Employment Appeal Tribunal required there to be Extended Reasons and accordingly on 29 December she asked the Employment Tribunal to give Extended Reasons. On 9 January of this year, the request for Extended Reasons was refused. The Employment Tribunal wrote to say:

"Thank you for your letter dated 29 December 2000. The Chairman of the Employment Tribunals, to whom the letter has been referred, has refused your request for extended reasons as it is made well out of time. The Chairman, Mrs Porter, notes that there may be an application for review: it has not yet been received."

[7]On 16 January of this year a request for a review was made by Miss Fishwick and on 26 January the review was declined. The Decision was this:

"In exercise of the power conferred upon me by Rule 11(5) of the Rules of Procedure set out in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 I refuse the application for a review by the applicant contained in her letter dated 16 January 2001 on the grounds that it has no reasonable prospect of success."

And in paragraph 4 of the Reasons it says:

"4. I cannot find that the interests of justice require such a review and I find that there are no other grounds under Rule 11 to justify such a review. 5. In any event the application should have been made within 14 days of the decision being sent to the parties and it was not so made. 6. There must be finality in litigation."

[8]On 13 February 2001 there was a Notice of Appeal as to the refusal to supply Extended Reasons and as to the failure to review. So far as concerns the appeal in relation to Extended Reasons, Extended Reasons have to be requested not later than twenty one days after the Decision is sent to the parties, which is Rule 10(4)(c)(ii), and that time expired on 24 November, but there was no request for Extended Reasons within that period. There is no explanation for that delay save simply and quite candidly, as advanced by Miss Fishwick's mother, that they did not know the procedure; they were ignorant of the procedure.

[9]We, as we mentioned earlier, have to detect some error of law in the conclusion of the Employment Tribunal in refusing extended reasons on the ground that the interests of justice were not made out, and that in any event the application was out of time. It is difficult to find any error of law, properly so-called, in their conclusion.

[10]As for the new evidence, which is at the heart of Miss Fishwick's application, it would not be admissible in any fresh hearing unless it could be demonstrated that it could not have been obtained in time for the hearing on 19 October even had due diligence been applied to its collection. There is no evidence, strictly so-called, as to that, and nor is there any evidence even of an informal character that amounts to that. True it is that the prospective deponent of the new evidence was on holiday at the time of the hearing but that is not to say that an application could not have been made for her evidence to be received in writing or that the case should have been adjourned in order to receive that evidence.

[11]This is one of those unfortunate cases where, perhaps, too much was being expected of applicants in person. Neither Miss Fishwick nor her mother pretends to have any legal expertise and it may be that the Tribunal was not as helpful as it might have been. We cannot go into that because we do not have sufficient information as to precisely what happened at the hearing but one has to recognise that if ignorance of procedure was truly a ground for there being a re-opening of a case, then very few cases would ever finish. As the Tribunal said, there has to be finality in litigation. So far as concerns the declining by the Tribunal to give Extended Reasons, we have not been able to find any error of law in their Decision.

[12]So far as concerns the failure to review, time for an application for review is fourteen days from the date of the Decision, that is Employment Tribunal Rule 11(4), and grounds for a review have to be stated in full. The fourteen days expired on 17 November 2000 and no request for a review was received until 16 January 2001. And, again, there is no explanation for the delay save for the candid admission on behalf of Miss Fishwick that they did not know the procedure; they did not know what the rules were. Again, the difficulty is "Can we find some error of law in the Decision of the Tribunal?" The only ground for a review is the new availability of evidence that had not been laid before the Employment Tribunal, and, again, the weakness of the position is that there was no adequate demonstration that that evidence could not have been received in due time had full attempts been made to get it. There is some dispute as to the materiality of the evidence, were it to be capable of being admitted, but that really only comes into play once a case is made out that it could not have been got even if due diligence been applied; and that part of the case is never satisfied.

[13]So, again, the difficulty is that we are unable to find an error of law, strictly so-called, in relation to the declining by the Employment Tribunal of a review. This is an unfortunate case because there is no doubt about it that Miss Fishwick and her mother feel that no justice was done and that Mitie got away, so to speak, with adducing false evidence; but unhappily for them, it is for the Tribunal to determine which evidence to accept, and evidence was accepted and the conclusion was arrived at, as we have described, and we are unable to find an error of law either in the Extended Reasons side of the thing or the review side of the thing and accordingly, although we appreciate the burning sense of injustice under which the Fishwicks suffer, we must, with some reluctance, dismiss the appeal.