PERFECT GLAZING LTD v MR A BUSSANIUS [2002] UKEAT 1282_01_2702

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1282_01_2702Case No Appeal No. EAT/1282/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
PERFECT GLAZING LTDAPPELLANTMR A BUSSANIUSRESPONDENT
Before
MRS R CHAPMANMR D NORMANDate 27 February 2002
[1]APPEARANCES For the Appellant MRS LINDA McGRATH (Solicitor) Instructed by: Messrs Challinors Lyon Clark Solicitors Guardian House Cronehills Linkway West Bromwich West Midlands B70 8SW For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT HIS HONOUR JUDGE J McMULLEN QC This case is about compensation for unfair dismissal. It is an appeal by the Respondent in those proceedings against the decision of an Employment Tribunal, dated 15 December 2000, sent to parties on14 March 2001. The Tribunal consisted of Mr P P Swann (Chairman) and Mr D Howell and Mr S Robinson. We will continue to use the terms of the parties below.[2]The Tribunal awarded the Applicant £14,618.48. The Respondent did not attend at the hearing. The Tribunal found against the Respondent that the Applicant had been dismissed on 1 March 2000 and that it was unfair because the Respondent failed to carry out a proper investigation, failed to notify the Applicant in writing of an investigation and failed to allow the Applicant to state his case.[3]In those circumstances the Tribunal decided to award the compensation. The Tribunal directed itself correctly by reference to the Employment Rights Act 1996 .[4]In due course, however, the Respondent complained that the calculation was in error and applied for a review. The basis of the application was that the nature of the Applicant's claim for compensation had changed between the Originating Application and his evidence.[5]The Respondent claimed that the interests of justice required a review because the Respondent did not have any opportunity to address the Tribunal on the question of the Applicant's losses. In particular the Respondent had relied on the inability of the Applicant to work as a window fitter, in arguing whether other work was available for him.[6]Secondly, the Respondent argued that evidence had been adduced by the Respondent that the Applicant had been seen working in May 1999 which, if true, would demonstrate both parties' recognising that the contract of employment had been frustrated.[7]The Chairman of the Tribunal, under Rule 11 (5) of the then Rules of Procedure 1993 , decided that all of the material had properly been forwarded to the Respondent to advise the Respondent Company of the hearing date and the Respondent should have ensured they were represented properly. As he put it, the paperwork was clearly there for the Respondent to react to.[8]In the application for review, in the interests of justice, the Respondent had contended that the evidence had not all been included by way of supporting documentation. The Chairman concluded that this was not a basis for securing a review.[9]The Respondent appealed and at a Preliminary Hearing, conducted by His Honour Judge Pugsley, sitting with Mr J C Shrigley and Mr P M Smith, it was ordered that a full hearing be conducted and the exchange of Skeleton Arguments was directed, together with notes of evidence being produced.[10]Our approach to this case has been informed by the realistic adoption of a course of proceeding by the Applicant, because on 15 April 2002 solicitors acting on behalf of the Applicant, who is not represented here today, accepted the following:
"…our Client is prepared to agree to an order in the following terms: - 1 The Respondent consents to an order being made that the case be remitted to the original Tribunal for an oral hearing to take place to establish whether or not there should be a review. 2 If a review is granted it should follow on from that hearing. To assist the EAT we are of the view that the matter of whether or not a review should have been granted should have been listed for an oral hearing or a request for further information have been made by the Tribunal [that is, we take it, the Employment Tribunal]. We can therefore agree that it is just and equitable that the matter is remitted back to the Birmingham Tribunal upon the above basis."
[11]That, however, does not satisfy the Respondent because the Respondent submits that it would be inappropriate if the EAT agreed to allow the appeal for it to be remitted to the original Tribunal. Further, the Respondent does not wish the remission to be contingent. In other words, it is submitted that we, as a matter of law, should direct that the review should take place, rather than allow the Tribunal to consider whether a review should take place.[12]We accept, not only in the light of that frank concession on behalf of the Applicant, but also having read very carefully the Skeleton Argument prepared on behalf of the Respondent, that this case should be allowed and the matter should be remitted for the reasons we give below.[13]We are grateful to Mrs McGrath for her extensive Skeleton Argument. It seems to us that she is right, when pointing to the issue of causation. The Applicant contended, in his Originating Application, that he was no longer able to work as a window fitter. He explained that on 18 April 1999 he was in hospital for 6 days as a result of an accident at work. He went on "As a result of the accident I am now disabled…I am no longer able to work as a window fitter."[14]We accept the Respondent's submission that the Applicant was no longer able to work as a window fitter as a result of the injuries sustained, as opposed to the decision to dismiss him. We accept that the Respondent was not aware that the Applicant claimed that his loss of earnings (if any) were attributable to his dismissal. That did not appear in the Originating Application and was not addressed in the Notice of Appearance and accordingly, when the Respondent, albeit subject to criticism of Judge Pugsley's Tribunal, did not attend, it did not envisage that the issue would be developed along the lines which fell before the Tribunal itself.[15]Secondly, the submission by the Respondent today in the Skeleton Argument, that the Tribunal got the figures wrong, appears also to have substance because the difference in take-home pay is between £150 and £250 respectively.[16]The latter issue is one which does not have as much force as the former but we consider that it is in the interests of justice a review take place of the compensation figures. The causation of the loss is not a matter upon which the Respondent had an opportunity to present an argument in writing in advance, or to attend the Tribunal to contest.[17]Realistically, again, the Respondent does not advance the argument that the decision was made in the absence of the Respondent, since we too echo Judge Pugsley's Tribunal in saying: 1 "We have little sympathy for those who choose not to take part in the hearing and then turn around and want to complain about the decision, but in this particular case we do think an issue has been raised that is at least arguable." Not only arguable, in our view, but which succeeds.[18]The question therefore arises as to how it is to be remitted. On behalf of the Respondent it is contended that this should not go back to the same Tribunal because it consists of the Chairman who made, in accordance with the Rules, the determination that it had no reasonable prospect of success.[19]That, however, is part of the structure of the Rules and if one looks at the Rules, which will apply in this case and are now contained in the 2001 Rules of Procedure at Rule 13 (1), it is envisaged that the same constitution should hear the case on review (see Rule 13 (6) which has a caveat only in respect of a case which it is not practicable to be heard by the original Tribunal).[20]We consider that the Tribunal will have an open mind when it reviews this matter, which we remit to it with a Direction that it conduct a review. That means that it will hear the evidence of the Applicant and the Respondents again and may reach the same or any other decision.