SAFEWAY STORES LTD v MISS K Z ROYER [2004] UKEAT 0520_04_2508

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0520_04_2508Case No Appeal No. UKEAT/0520/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
SAFEWAY STORES LTDAPPELLANTMISS K Z ROYERRESPONDENT
Before
His Honour Judge McMullenDate 25 August 2004
[1]APPEARANCES For the Appellant MISS CAROLINE BARBER (Solicitor) Messrs Bond Pearce Solicitors Bristol Bridge House 138-141 Redcliff Street Bristol BS1 6BJ For the Respondent RESPONDENT DEBARRED Ms Jean Gayle (Representative) SUMMARY Practice and Procedure ET Chairman has no power sitting alone to review a decision of Chairman or a Tribunal: R15 (8)[2]A's withdrawal of IT1 on legal advice was final. HIS HONOUR JUDGE McMULLEN QC Introduction "We write further to correspondence in this matter and advise that our client, the Applicant, wishes to withdraw her claim for Unfair Dismissal and Racial Discrimination against the Respondent, Safeway Stores PLC. The Applicant informs us that she was reinstated by the Respondent at the time but then dismissed while this claim was still outstanding. Further she wishes to inform the Tribunal that she will now be seeking to issue a new IT1 for the most recent dismissal as at 17 th March 2003, this dismissal could have been for no other reason than the fact that the Applicant had this outstanding claim, which included racial discrimination. We further advise that at the instigation of this claim, the Applicant was not legally represented and therefore did not appreciate, nor fully understand the nature of her claim. As you are aware we became involved recently and upon review of the Applicant's file, she has accepted our advice to withdraw this current action. We should be grateful if you could kindly remove the case from the List. The Applicant will be submitting a fresh claim based on further actions taken by the Respondent, which culminated in her dismissal on the 17 th March 2003. We apologise for the late notification to the Tribunal and would stress that no discourtesy is intended." "WITHDRAWAL OF COMPLAINT … We have been advised that the above case has been withdrawn. If the case has been listed it has been taken out of the lists. Accordingly we have closed our file." A copy was sent to the Conciliation Officer, as was a copy of the Applicant's solicitor's letter, to which I have referred. " Complaints relating to the 2002 disciplinary procedures are dismissed . 12. For the avoidance of doubt the complaints relating to 2002 and subject matter of an Originating Application (Case number 2304924/02) cannot be determined by the forthcoming Tribunal on the ground that it is a matter which has been withdrawn. Miss Hinton handed to the Tribunal a copy of that Originating Application and the notice of withdrawal of the complaint dated 9 May 2003 and therefore all complaints relating to the 2002 disciplinary procedures are dismissed." "10. The legal position appears to me to be that the Tribunal's letter of 9 May 2003 acknowledging the withdrawal and taking the matter out of the list in respect of the first application was not a decision of the Tribunal, therefore it was open to the parties to resurrect that application. What is the position following the decision of Ms Taylor contained in paragraph 12 of the Order made after the Tribunal Case Management Discussion on 8 January, in my view that is a decision. 11. I consider in my capacity of Regional Chairman that I am entitled to review that decision to review it out of time. In the checkered history of these applications I do consider that it would be fair and just to allow the first allegation of direct race discrimination arising out of the Applicant's dismissal in August 2002 to be able to proceed to a full Tribunal and to be heard on its merits. The basis of the complaint in any event clearly set out in the second application and would, up until today have been background, but I allow it to go forward as a complaint. I allow the review of Ms Taylor's decision on the basis that the Applicant was not represented at that hearing and had not been able to make representation in respect thereof." Thus, life was breathed into the first Originating Application. The Legislation "13(1) Subject to the provision of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that - … (e) the interests of justice require such a review. 15 …(2) A tribunal may - (a) if the applicant at any time gives notice of the withdrawal of his originating application, dismiss the proceedings. … 17 (1) A chairman may, on the application of a party or of his own motion, extend the time for doing any act appointed by or under these rules (including this rule) and may do so whether or not the time so appointed has expired." It will be noted that under Rule 13 power is given to review a Tribunal's decision on various grounds. These include that the interests of justice. "2. (2) … "decision" in relation to a tribunal includes – a declaration an order … but does not include any other interlocutory order or any other decision on an interlocutory matter." Further assistance is given on the meaning of "decision" by Rule 12, which provides as follows:
"12. (2) The decision of a tribunal, which may be given orally at the end of a hearing or reserved, shall be recorded in a document signed by the chairman." (3) The tribunal shall give reasons for its decision in a document signed by the chairman… "30. In my judgment, however, Mummery J was correct when at 11B of the transcript of his judgment he said that there was nothing in the principles of cause of action or issue estoppel which stipulated that they could only apply in cases where a tribunal has given a reasoned decision on the issues of fact and law in the previous litigation. Section 140 of the 1978 Act contains provisions which render void any agreement to preclude a person from bringing proceedings before an industrial tribunal. A tribunal has therefore to be satisfied that a withdrawal is properly made. 31. I am satisfied that the order which was made by the industrial tribunal on 5 May 1993 was a judicial decision made by the industrial tribunal in the exercise of its powers under the 1978 Act and the 1985 Regulations. It was not a mere administrative act."
The correct approach to the Tribunal's instruments