VIDFILM EUROPE v MR C D SINGLETON [2001] UKEAT 742_00_2501

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 742_00_2501Case No Appeal No. EAT/742/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
VIDFILM EUROPEAPPELLANTMR C D SINGLETONRESPONDENT
Before
Mr Justice LindsayDate 25 January 2001
[1]APPEARANCES For the Appellants MR G POLLARD (Representative) Pollard Associates Apex House 15 Ambleside Crescent Sprotborough Doncaster DN5 7PR MR JUSTICE LINDSAY (PRESIDENT) : We have before us as a preliminary hearing the appeal of Vidfilm Europe in the matter Mr C D Singleton v Vidfilm Europe . Today, Mr Pollard has addressed us on behalf of Vidfilm and has addressed us with moderation and skill. On 20th December 1999 an IT1 from Mr Singleton against Vidfilm Europe was presented, claiming unfair dismissal. Mr Singleton said that he had been employed from April 1998 to October 1999 and that he had been made redundant.[2]On 30th December 1999 the employer, Vidfilm, put in an IT3 accepting that Mr Singleton had been made redundant but saying, in effect, that he had been fairly made redundant. The proper processes, it said, had been gone through.[3]On 20th March 2000 there was a hearing at Employment Tribunal before a panel of three under the chairmanship of Mrs R S Martin. Both sides were represented and at the conclusion of the hearing a decision was given orally. On 21st March 2000 Vidfilm asked for a review of the decision that had been given orally on 20th March.[4]On 28th April 2000 there was the oral hearing of the application for a review. That oral application for a review was, in effect, tacked onto what had been understood to be a remedies hearing, but compensation was, as it transpired, ultimately agreed between the parties and so what had been intended as a remedies hearing became, in effect, an oral hearing of the application for a review. Still at this stage no extended reasons had been sent to the parties in relation to the substantive hearing. That decision was sent to the parties on 4th May 2000. The unanimous decision of the tribunal was that:
"Mr Singleton, the Applicant, was unfairly dismissed. The remedy hearing has been adjourned to 28 April 2000 in order to give the parties an opportunity to agree the compensation to be awarded."
Of course, by then, the compensation had already been agreed, because that decision was actually sent out on 4th May 2000.[5]On 22nd May 2000 reasons for the refusal of the review application were sent to the parties. They included an award of costs against Vidfilm. The application for the review had, of course, been heard by the same people who had heard the substantive case and the decision on the review application was:
"The unanimous decision of the Tribunal is that this application for a review is not granted."
In the decision thus sent out on 22nd May 2000, the tribunal said at paragraph 7 of their reasons:
"We have considered all the aspects of this application for a review and our decision is that it should not be granted. 8 The Applicant's representative then made an application for her costs. The Respondents objected to this application on the grounds that there had been no formal notice given that this application would be made, although the Tribunal understands that Mrs Alderton had informed Mr Pollard on 26th April that she would make such an application for costs if the review application was to proceed. 9 We have considered this application and we find that it is an application for a review which has been brought frivolously and unreasonably. It was an application formulated the day after the Full Merits Hearing, and before the Respondents had seen a promulgated decision setting out the Tribunal's Extended Reasons. 10 We have made it clear in our decision that no "interests of justice" issue has been argued [ that is a reference to one of the grounds upon which a review can be sought ]. The written submission contained some legal argument, allegations of perversity, and references to the conduct of the proceedings, all of which are matters which are capable of being appealed. We find there was no justification for continuing with today's hearing once the compensation had been agreed between the parties. We therefore grant the Applicant's application for his costs of today's hearing.

(c) "

[6]On 7th June 2000 Vidfilm's Notice of Appeal was received at the EAT as to the decision sent to the parties on the 4th May and also as to the award of costs.[7]On 4th August 2000 the Employment Tribunal declined to review the decision that it had made on costs.[8]Looking at the Notice of Appeal that we have it seems to us to raise four chief points as follows:(1) that the Employment Tribunal's conclusion that redundancy had not been accompanied by adequate consultation was a perverse decision unsupported by the evidence.(2) The Employment Tribunal's conclusion that Mr Singleton had had a 20% chance at least of obtaining some other job within Vidfilm was another decision which had no basis at all in fact given in evidence to the tribunal.(3) The computation of Mr Singleton's loss was based on incredible and inadequate figures which Vidfilm had had no sufficient opportunity for challenge.(4) There was no right in law for the tribunal to have awarded costs in the way that it did.[9]Taking those latter two first. At for (3), the computation of loss, figures for Mr Singleton's loss were actually agreed between the parties and once that occurs the matter is taken out of the court's hands and ceases to be a matter which concerns the court and, equally, cannot be the basis of any further litigation, including appeal. So that ground, as it seems to us, is not a ground that raises any arguable point of law and hence cannot go forward.[10]As for ground (4), rule 12 of the Employment Tribunal Rules confers a jurisdiction as to costs. It is a broad jurisdiction. It cannot be said that it was premature for Vidfilm to have launched a review application even before it had received the formal written decision because rule 11(4) contemplates a request being made for a review in the interval between the hearing and 14 days after the written decision is sent to the parties. What perhaps was premature was the Employment Tribunal's decision to deal with the review application on 28th April 2000 before it had sent out its written decision to the parties on 4th May. It would have been more sensible for the tribunal to have said in relation to the review application "we will adjourn it and consider it only when the written decisions have been sent to the parties" so that the position could then be that the parties would have been able to see in writing precisely why the earlier decision had been made as it had been. Had the Employment Tribunal awarded costs simply on the ground that Vidfilm's application for a review was premature that would have been, as it seems to us, an error of law. But what in fact led to the award of costs seems to us have been that the review application relied wholly upon matters which were not what one might call review type grounds but matters which were appropriate only to appeal. In their paragraph 5 the tribunal says:
"We do not find anything in the application for review which is in itself an "interests of justice" issue. It seems to us that the Respondent disagrees with the Tribunal's decision, and that, too, is a matter for an appeal not for a review."
The only other argument was as to fresh evidence and that had been specifically dealt with in paragraph 6 of the Employment Tribunal's decision.[11]Mr Pollard complains that the Chairman was vexed with Vidfilm's behaviour and that led to a hearing which was, in effect, biased against Vidfilm and, to that extent, Vidfilm did not have a fair hearing. But he recognises that there is a difficulty in front of him and that is that that sort of allegation of bias or prejudice on the part of the tribunal or any member of it, under the Employment Appeal Tribunal's Practice Direction, requires that an affidavit should be lodged in support of the allegation so that the affidavit can then be sent to the Chairman involved or the lay members involved and further information can be given to the Employment Appeal Tribunal in relation to it. We have not got any such affidavit and we thus cannot pay attention to that type of allegation. Mr Pollard also complains that the Chairman accepted, simply on the basis that his opponent's solicitor said so, that Vidfilm had been warned of the possibility, at least, of an application for costs if the review application was to proceed. Well, it is quite often practicable for an Employment Tribunal to accept matters without their being put formally in evidence, especially procedural and inter-parties matters of that kind, and that is very much a matter of fact which is exclusively in the province of the Employment Tribunal and does not give rise to error of law. Mr Pollard recognises, of course, that it is only errors of law with which we can deal. We might well not have dealt with the application for costs as the tribunal did but we cannot say that there was an arguable error of law inherent in their decision as to costs. So the costs argument is not to go forward to a full hearing.[12]That leaves the first two grounds which we described, both of which depend on what, if any, evidence was given to the Employment Tribunal. We could either adjourn until we have Chairman's notes and then restore the matter still as a preliminary hearing to see what had by then emerged or, alternatively, we could ask for the Chairman's notes but go direct to a full hearing on the basis that error of law is asserted, even if not so far substantiated in the absence of any indication of what the evidence was that was given to the Employment Tribunal. The former course runs the risk of there being two further hearings (in other words, an adjourned preliminary hearing and possibly then a full hearing) but it offers the prize of there being only one, namely the adjourned preliminary hearing and it offers the prize of not unnecessarily involving the respondent. The latter course means that there will be only one further hearing but it might, of course, unnecessarily involve Mr Singleton in attendance and costs. Whilst neither course is wholly satisfactory, on balance, we prefer the latter.[13]Thus we permit the first two grounds which we have described as proper to go forward to a full hearing. We will invite the Chairman to supply her notes of oral evidence given on 20th March 2000 as to the adequacy or otherwise of consultation upon redundancy and as to the prospects of Mr Singleton's obtaining or failing to obtain some other job within Vidfilm. We shall, of course need, for the full hearing whatever written evidence was laid before the tribunal as well as the Chairman's notes of oral evidence.[14]We send the points as we have described as points(1) and(2) to a full hearing, but only those. At the full hearing the appellant is not to range beyond those two broad headings without the express leave of the Employment Appeal Tribunal at that full hearing. The matter is properly described as Category B. We estimate that it will take two hours and skeleton arguments are to be exchanged not less than 14 days before the hearing.