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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Williams v. Ferrosan Ltd [2004] UKEAT 1005_03_0503 (05 March 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/1005_03_0503.html Cite as: [2004] UKEAT 1005_3_503, [2004] UKEAT 1005_03_0503, [2004] IRLR 607 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE HOOPER
MS N SUTCLIFFE
MR D WELCH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellant | MS DAPHNE ROMNEY (Of Counsel) Instructed by: Messrs Stanley Tee Solicitors High Street Bishop's Stortford Herts CM23 2LU |
For the Respondent | MR ADRIAN CRAWFORD (Solicitor) Messrs Donne Mileham & Haddock 100 Queens Road Brighton East Sussex BN1 3YB |
Jurisdiction of Employment Tribunal to entertain a review.
THE HONOURABLE MR JUSTICE HOOPER
After the remedies hearing there was much correspondence. The Inland Revenue directed that tax was payable on that part of the award that related to the loss of future earnings. Thereafter Mrs Williams set about seeking a review so as to put her in the position that all had agreed she should have been in at the hearing.
The tribunal reviewed the authorities and concluded:
"The result is that the Tribunal has concluded that the decision reached was the result of error of both representatives. On the authorities provided, that does not amount to a ground for applying for a review under rule 13(1)(e) of the Rules of Procedure. The respondent is entitled to the benefit of the principle of the finality of litigation, at least in so far at the tribunal as a court in the first instance is concerned."
The Tribunal declined to increase the award by the necessary £60,000 or so.
"The interests of justice require such a review."
"That the overriding objective of the rules is to enable tribunals to deal with cases justly."
By virtue of sub-paragraph (2):
"Dealing with a case justly includes, so far as practicable -
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate to the complexity of the issues;
(d) ensuring that it is dealt with expeditiously and fairly."
By virtue of sub-section 3;
"A tribunal shall seek to give effect to the overriding objective when it exercises any of the specified powers including the power to review a decision under paragraph 13 of schedule 1 which interprets any such rule."
By virtue of sub-section 4;
"The parties shall assist the tribunal to further the overriding objective."
"6. Instead of dealing with the substance of the matter, we have now got into a complicated series of reviews and appeals from reviews which will still leave the fundamental question unresolved. However, the parties, have chosen to adopt their course and, therefore, we must deal with the appeal against a review decision on its merits.
7. As it seems to us the fundamental question is whether or not the Industrial Tribunal's decision that Miss Trimble had failed to mitigate her loss was reached after Miss Trimble had had a fair and proper opportunity to present her case on the point, being aware that it was a point which was in issue. We do not think that it is appropriate for an Industrial Tribunal to review its decision simply because it is said there was an error of law on its face. If the matter has been ventilated and properly argued, then errors of law of that kind fall to be corrected by the Appeal Tribunal. If, on the other hand, due to an oversight or to some procedural occurrence one or other party can with substance say that he has not had a fair opportunity to present his argument on a point of substance, then that is a procedural shortcoming in the proceedings before the Tribunal which, in our view, can be correctly dealt with by review under Rule 10 however important the point of law of fact [sic] may be. In essence, the review procedure enables errors occurring in the course of the proceedings to be corrected but would not normally be appropriate when the proceedings had given both parties a fair opportunity to present their case and the decision had been reached in the light of all relevant argument.
8. It is suggested that there are authorities binding us to hold that it is inappropriate for an industrial Tribunal to deal with anything other than minor slips or small points of detail. The first case relied upon in support of that proposition, which was relied upon by the Industrial Tribunal, is Blackpole Furniture Ltd v Sullivan (1978) ICR 559. In that case this Employment Tribunal was having to consider whether there was any impropriety in an Industrial Tribunal considering an application for review even though their decision was under appeal to this Tribunal. The Employment Appeal Tribunal decided there was no impropriety in so doing and, in the course of giving their reasons for that, said this:
'One of the reasons why it is not necessarily undesirable to carry on with the application for a review is that experience shows that very often we have appeals perhaps related to compensation or matters of that kind where the real complaint is that some trivial error has been made - perhaps in computation, calculation or something of that sort – and where all we can do, if we are satisfied that it has, is to remit the matter to be reheard on that particular point.'
That passage does not indicate that only trivial matters can properly be the subject of review; the Employment Appeal Tribunal was there giving its reasons for saying that there was no harm in the review continuing as a general rule because, as is indeed the fact, many review applications relate to trivial matters.
9. The other case relied on was D G Moncrieff (Farmers) v MacDonald [1978] IRLR 112 where the Employment Appeal Tribunal, referring to an earlier decision, said that, in their view, review procedure was only appropriate in exceptional circumstances. We certainly do not demur from that; it will be only in exceptional cases that a review is appropriate in exceptional circumstances.
10. In British Midland Airways v Lewis (1978) ICR 782 at p.785E the Employment Appeal Tribunal said this:
'It seems to us that in a case like this where, as the law then was, a mistake may have been made and the matter has come to light, it is desirable for the Industrial Tribunal, if there is an application for review, to correct the matter even if it involves overturning the original decision of the Industrial Tribunal. From time to time we have appeals sometimes in relation to small matters of compensation, sometimes in relation to matters where there has been a slip or an error of law of some sort or another and the mistakes have come to light quite soon after the hearing of the Industrial Tribunal. It seems to us that the convenient course is for such mistakes, when they occur and are recognised, to be corrected by review rather than by appeal because the appeal takes much longer and is much more expensive.'"
"11. In Trimble v Supertravel Ltd [1982] IRLR 451, this court held that the industrial tribunal should have allowed a review where an applicant's solicitor had not had the opportunity to address the Tribunal on their decision announced at the end of the hearing before giving written reasons that there was a failure to mitigate. In Harber v North London Polytechnic [1990] IRLR 198, a representative's decision to withdraw a complaint of unfair dismissal was consequent upon the Tribunal Chairman putting the wrong question about continuous employment to the representative. At paragraph 26 Balcombe LJ put the position thus;
'In other words, if there is a mistake made by the litigant's representative, it is not conclusive. The court – in this case the chairman of the Tribunal being asked to exercise a power to order a review – had a discretion. That discretion should be exercised on certain well-established principles, one of which must be: was there any mistake made at the original hearing? It cannot be just to hold Mr Harber to the mistake of his representative if that mistake was induced in part by the failure of the [North London] Polytechnic solicitors to send all the relevant documents to the Tribunal so that the Tribunal was acting, at least in part, under a misapprehension, in part by a misunderstanding or misstatement of the law by the chairman of the Tribunal itself, and in part by an apparent refusal to look at the relevant cases which were put before the Tribunal in the correspondence and a refusal of the request for an opportunity to give oral submissions. In my judgment the learned chairman, in refusing to grant a review here did not properly exercise her discretion. The Employment Tribunal did not give proper consideration to the test that she should have applied. I have no doubt that there was here a mistake and that the interests of justice do require a review.'
12. Mr Linden for the Respondents has referred us to Lindsay v Ironsides Ray [1994] ICR 384. In that case the Tribunal had allowed a review following the failure of the Applicant's representatives to make submissions on the issue of extending time under Section 68(6) of the Race Relations Act 1976, which had been raised before the Tribunal by the employers. The Tribunal had observed that the representative was not a lawyer and that it was "apparent she was out of her depth". The employer's appeal was allowed by this Court and at page 394, Mummery J said this:
'The facts in the present case cannot be properly viewed as a 'procedural mishap' or 'procedural shortcoming' or 'procedural occurrence' of a kind which constitutes a denial to a party of a fair and proper opportunity to present a case. The facts, as they appear to us, are that the applicant was represented at the first hearing by Mrs Grenham. The solicitor representing the employers clearly raised before the industrial tribunal in his opening, as well as in his closing remarks, that there was an issue of extension of time under section 68(6). The tribunal was aware of this and made a decision on the point. The failure of Mrs Grenham to make any submission on the point and the failure of the tribunal to identify to Mrs Grenham the way in which it was considering its exercise of discretion did not, in our view, amount to denial of a fair opportunity to present an argument on a point of substance. The fact that the tribunal thought it necessary, in its review decision, to make criticisms of Mrs Grenham's ability indicated that the reason for granting a review was that, in the view of the industrial tribunal, the applicant's case was not properly argued as a result of Mrs Grenham's shortcomings. Failings of a party's representatives, professional or otherwise, will not generally constitute a ground for review. That is a dangerous path to follow. It involves the risk of encouraging a disappointed applicant to seek to reargue his case by blaming his representative for the failure of his claim. That may involve the tribunal in inappropriate investigations into the competence of the representative who is not present at or represented at the review. If there is a justified complaint against the representative, that be may the subject of other proceedings and procedure. It is thus our view that the industrial tribunal erred in law in granting a review under rule 10(1)(e) of the Rules of Procedure 1985.'
13. We take the view that the facts of this case are in no way different from the situation as set out in the Lindsay decision. There has not been a mistake, or a procedural mishap, or procedural shortcoming which constitutes a denial to a party of a fair and proper opportunity to present a case. Submissions on Polkey deductions are very much the 'bread and butter' of many Tribunal hearings and if there was any shortcoming on the part of Mr Bourne, we cannot see that this entitled the Tribunal to review the decision for that reason."