MR S A MOSELEY v SERVICE DIRECT (UK) PLC [2002] UKEAT 0482_01_2607

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 0482_01_2607

Case No Appeal No. EAT/0482/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR S A MOSELEYAPPELLANT

SERVICE DIRECT (UK) PLCRESPONDENT

Before

Mr Justice Burton Mr P R A Jacques

Date 26 July 2002

[1]APPEARANCES For the Appellant MISS REBEKAH WILSON (of Counsel) Instructed by: Messrs Birchall Blackburn Solicitors Waldorf House 5 Cooper Street Manchester M2 2FW For the Respondent MR JACK MITCHELL (of Counsel) Instructed by: Messrs Henmans Solicitors 116 St. Aldgates Oxford OX1 14A MR JUSTICE BURTON This is an application for a review, which is listed at the instance of the Court, of our decision of 8 February 2002. The relevant paragraph of the Employment Appeal Tribunal Rules 1993 is paragraph 33 and that lists situations where review may be appropriate. The Rule reads as follows: 33 (1) "The Appeal Tribunal may, either of its own motion or application, review any order made by it and may, on such review, revoke or vary that order on the grounds that – (a) the order was wrongly made as the result of an error on the part of the Tribunal or its staff; (b) a party did not receive proper notice of the proceedings leading to the order; or (c) the interests of justice require such review."

[2]The jurisdiction plainly is to be exercised only sparingly, and that has been made clear in a number of decisions, to which we have been referred by Miss Wilson, on behalf of the Appellant and Mr Mitchell, on behalf of the Respondent. They include Stannard & Co. (1969) Ltd. & Wilson

[1983] ICR 86

and Jenkins v P. & O. European Ferries (Dover) Ltd

[1991] ICR 652

[3]The most thorough review of cases under this jurisdiction is that of Wood J (the then President) in Blockleys Plc. v Miller

[1992] ICR 749

and the discussion of the question begins at 753 and is centralised in page 756. He says at 756 B as follows:

"It is clear that in the light of the general principles of law applicable, the power of review whether in an industrial tribunal or in this appeal tribunal must be exercised within a very narrow margin. The following instances appear from the cases: where the issue of jurisdiction arises…[and he gives 2 examples]; where there has been a fundamental procedural error – lack of due process…[and he gives an example]; fraud – appearing very soon after the decision…[he gives an example]; simple cases of minor or omissions – very much as one would use the slip rule…[and he gives an example]." and he then says there are other cases falling outside those categories, and he says: "

Accepting as we do, the submissions of [Counsel] on this point, we construe [the then] Rule…as covering the situation where some alteration is necessary to the form of the order made as a result of the judgment and Rule 26(1)(c) [which is the equivalent of the new 33(1)(c)] as being of limited scope intended to repair an error in jurisdiction or a defect in the process of the appeal, or the conduct or procedural unfairness – the absence of "due process" – the technical correctness of the decision. It is not to allow cases to be re-argued and re-heard."

[4]The original decision of the Employment Tribunal in this case was given on 14 June 2000. There was a hearing which, it seems, took only an hour, and Summary Reasons were given by the Chairman, Mr Doyle. The decision read as follows:

"The majority decision of the Tribunal is that the Applicant had not been continuously employed for a period of not less than one year ending with the effective date of termination of employment, and that the Tribunal does not have jurisdiction to hear this complaint of unfair dismissal, which is accordingly dismissed."

[5]The claim, of course, centred on the Originating Application of the Claimant then before him. The Originating Application read, in paragraph 1: 1 "The Applicant was employed as a Telesales Executive by the Respondent [that is Service Direct(UK) Plc.] from 1 st June 1998 until the 24 th November 1999."

[6]That was put in issue by the Respondent's Notice of Appearance, who alleged that in fact the Claimant had only been employed by them for 6 weeks, and if that were so then there would be, or could be, no claim.

[7]The pleadings therefore made no mention of what is in fact, as we now understand, the real issue between the parties, and that is as to whether there had been a TUPE transfer. The decision, so far as the majority reasoning is concerned, made no mention of TUPE either. The decision read as follows: 1 "By his Originating Application the Applicant complains of unfair dismissal. 2 By its Notice of Appearance the Respondent asserts that the Applicant had not been continuously employed by it for a period not less than one year ending with the effective date of termination of employment and so…he was not qualified to bring a complaint of unfair dismissal. 3 This question was considered at a preliminary hearing. 4 The majority of the Tribunal found that the Applicant had been employed by Samsung Telecoms (UK) Ltd and its predecessor in title from 1 June 1998 to 30 September 1999. On 30 September 1999 the Applicant left Samsung Telecoms (UK) Ltd, having been made redundant and commenced employment with the Respondent on 1 October 1999 until he was made redundant on 24 November 1999. The commencement of his employment with the Respondent on 1 October 1999 was not as a consequence of a relevant transfer of undertaking and was not otherwise to be treated as continuous employment in relation to his employment with Samsung Telecoms (UK) Ltd or its predecessors. Accordingly, the majority found that at the effective date of termination of employment (24 November 1999) the Applicant had not been continuously employed by the Respondent for a period of less than one year. 5 The minority of the Tribunal considered that the Applicant's commencement of employment with the Respondent on 1 October 1999 was as a consequence of a transfer of undertaking from Samsung Telecom (UK) Ltd to the Respondent and that the Applicant's contract of employment had transferred to the Respondent as a result, in circumstances such that his continuity of employment from 1 June 1998 to 24 November 1999 (the effective date of termination of employment) was continuous. 6 Accordingly, following the findings of the majority of the Tribunal, the Tribunal does not have jurisdiction to hear the Applicant's complaint of unfair dismissal and that complaint is dismissed."

[8]The representation before the Tribunal was recorded as being:

"For the Applicant: In person For the Respondent: Mr Nigel Russell (Managing Director)"

He was then Managing Director of the Respondent Service Direct (UK) Plc, although shortly afterwards he ceased to be so.

[9]The Claimant sought Extended Reasons from the Tribunal but, due to an application for legal aid which, understandably, delayed matters, did not make such application for Extended Reasons within the time limit laid down by the Employment Tribunal's Regulations. Mr Doyle, by a decision given on 6 September 2000 refused the request for Extended Reasons and declined to extend the time for requesting such reasons.

[10]An appeal was brought before the Employment Appeal Tribunal against that refusal to give the Extended Reasons by the Claimant, the purpose of course being to obtain reasons so that he could understand, and his advisers could understand, the basis upon which he had failed before the Tribunal, not otherwise clear from the short Summary Reasons which we have read.

[11]A second and separate fallback appeal was also brought, seeking to persuade the Employment Appeal Tribunal to deal with and, in effect, find for the Appellant by quashing the decision of the Employment Tribunal, even without the Extended Reasons.

[12]The two appeals came on before this Tribunal, differently constituted, on 12 March 2001 for a Preliminary Hearing, and the learned Recorder on that occasion concluded that both appeals should proceed to a full hearing without, at that stage, considering a course open of at least dealing with the outstanding appeal in respect of the Reasons, although it is right, to be fair, that the Respondent was not represented before the Tribunal on that occasion, and the Tribunal did not consider adjourning or contacting the Respondent to see what the Respondent's view would be.

[13]Whatever the position was, the Order was made simply permitting both appeals to go ahead, and it took nearly another year before the matter came on before this Tribunal, constituted as we are now, on 8 February 2002.

[14]On that occasion, being of course the hearing of both appeals, the Appellant and Respondent were both represented; the appellant on that occasion by Mr Simon Robinson of Counsel and the Respondent not by a lawyer but by Mr Russell, who by that time had ceased, as we have earlier indicated, to be Managing Director of Service Direct Plc, but was looking after their interests and spoke on their behalf.

[15]We took the view that what was before us appeared most unsatisfactory, and that we could not do justice on what we had, certainly not by dealing with the second appeal when we had no idea of the basis upon which the Tribunal had reached its decision, but, whereas we took the view that we differed from the Employment Tribunal in its decision as to extending Reasons, we were unhappy that sending back the appeal hearing for such reasons would necessarily achieve anything.

[16]We did so because we laboured under the following apprehensions which are evidenced in the following paragraph which we shall first read: 4 "It is unclear to us how the point upon which the minority member attached, namely, that the real issue was TUPE, had arisen. It may be that it did not arise until the hearing itself because we have been told by Mr Russell, who has appeared before us today, the Managing Director, as he then was, of Service Direct PLC, who appeared at the Tribunal…that there was no actual witness evidence given at the hearing, but that he simply addressed the Tribunal, as did the Appellant in person, with the benefit of a relatively small bundle of documents; and so it may be that the Tribunal was not given advance notice that the real issue before it was whether or not there was a TUPE transfer."

[17]And then we said later at paragraph 7: 7 "It is entirely clear to us that neither of those courses are sensible in the least [that is dealing with the appeals that were before us]. First of all, we would not be able to decide this ourselves without the further consideration which would be necessary, and secondly, if, as would be in our judgment inevitable, we sent this back for further Reasons because we are satisfied both that there was a good reason for delay and, in any event, that justice demands that this Decision be explained, then the best that could then happen would be that Reasons would then be given, which would inevitably, in our judgment, lead to a further appeal against the substance of the judgment, once so explained." We were, of course, under the misapprehensions which I shall explain in a moment, to which we referred in paragraph 4 of our then decision.

[18]Then, at paragraph 9 we said this: 9 "We direct that the fresh application be heard by a differently constituted Tribunal. The issue is bound [we emphasise that word] now to be, not least because the facts are clear that in fact, as a matter of history, the Appellant was employed first by Samsung Telecom (UK) Ltd, and then by Service Direct PLC, so that, subject to TUPE, he only did have a period of employment from 1 October 1999 to 24 November 1999 with the Respondent, whether there was a TUPE transfer."

[19]Before we explain what the misapprehensions were, we should say what thereafter happened. What thereafter happened is that, having dispatched the matter back to the regional Tribunal with the Direction to which we have referred, and the parties having been contacted for the purpose of a hearing in front of a differently-constituted Tribunal, the Chairman, Mr Doyle (of the original Tribunal), having had notice of this decision, produced, or rather was willing to produce, and said he was able to produce, the Reasons.

[20]I ordered that, in those circumstances, the Extended Reasons which were promised were indeed available and could be produced, we, the Tribunal, would consider whether to list this matter for a review, once we had seen such Reasons.

[21]Extended Reasons were then very speedily produced and considered by this Tribunal. Whether or not they constitute a sufficient answer to the Appellant's case is quite another matter which hereafter falls to be considered, but the fact is that those Extended Reasons disclose the misapprehensions that we were under.

[22]We do not blame anybody as to how we came under the misapprehension. Mr Russell who had been present at the hearing, gave us his account of what had occurred. Either we misunderstood him or he misrecollected but, on any basis, no blame can lie at the feet of the Respondent when the Appellant agreed with what was said.

[23]The misapprehensions are as follows: 1 There was a hearing specifically dedicated towards a decision as to whether TUPE applied or not. That was the purpose of the Preliminary Hearing. As is clear from the extract from our judgment in February, which we have read, we had no understanding of that; instead we were puzzled as to how TUPE appeared to have been plucked from the air, and were concerned as to whether, in fact, it had been properly considered at all. 2 Far from the position being that the Tribunal was simply addressed by both parties, without evidence being called, evidence was called and fully considered.

[24]In those circumstances, the basis upon which we took the view that there would be no purpose in calling for Extended Reasons, was false. It is entirely clear to us, therefore, that this is a most unusual case, and one which can plainly fall within the concept of justice requiring a review, and certainly if error has to be identified in order to justify the jurisdiction, error there has been.

[25]But, let us say a few further matters about the wider concepts which Miss Wilson has addressed us on. The first is that, in her Skeleton Argument before us, she referred to Blockleys , and to the risk of abuse of process if this review jurisdiction is used other than sparingly. We entirely agree. What this jurisdiction would not, without good justification, be used for, is, where there has been a fully considered hearing, to cause a re-hearing of it.

[26]However, unless we do use the jurisdiction in this case that will be exactly what will occur without it. 1 We are reviewing a decision of ours which was not fully considered, which took something like 15 minutes, and the re-hearing of which could not possibly be said to amount to any kind of relitigation in any sense; and 2 Unless we now consider, as an Appeal Tribunal, which all parties are ready to do, the substance of the Reasons which resulted from the hearing below, which hearing now appears to have been (whether it reached the right conclusion or not is another matter), a full and proper hearing, then we will in fact ourselves be achieving what Blockleys is intended to prevent; namely a re-hearing of something that has already been heard.

[27]The other matter that was put before us today, by Miss Wilson, was that it was unfair to her Client to have the matter re-opened when he concluded in February that it was all going back for a full re-hearing before a different Tribunal. It is certainly right that that is the effect of our decision in February.

[28]Insofar as he was under that belief, it was the result of the errors to which we have referred, to which those representing him were party; but we must make plain the following: 1 That understanding of the Claimant only ran between 8 February 2002 and the time when the parties were notified about the existence of the Extended Reasons and the proposed review, which was possibly the middle of June, so it was a relatively short period. 2 The passage of time of which Miss Wilson complains, and perfectly understandably, goes right back to February 2000 when the original hearing occurred. There may be unfortunate aspects arising out of the delays caused in this case, but none of those have any relevance to the very short period since February 2002. 3 If her Client was prejudiced in some way, that position certainly was not taken when a Skeleton Argument setting out, in very persuasive detail by then Counsel on his behalf, his case for the purposes of this application, 2 weeks ago, when no point such as this was made. 4 Fourthly, and perhaps most persuasively, so far as this Tribunal are concerned, the Appellant came to this Court in February to get the Reasons, and he has now got them. The purpose of the main appeal which this Appellant brought has thus been achieved and, it seems to us difficult for the Appellant to complain of what in effect is, the success of his own appeal.

[29]In all those circumstances we do not see that there is any reason why we should not follow the overwhelmingly proper course of, now we have the reasons, considering them: effectively now, therefore, pursuing the second appeal of the Appellant, for which all parties are now ready, namely to conclude whether the Tribunal below was correct in its decision that TUPE did not apply.