Appeal No. EAT/514/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 26th January 1993

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MR J D DALY

	MISS C HOLROYD

QUENCHERS LTD	APPELLANTS

MRS M M McSHANE	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR J S LAWTON
Solicitor
Messrs Aaron & Partners
Grosvenor Court
Foregate Street
Chester
CH1 1HQ

For the Respondent	NO APPEARANCE BY OR 
ON BEHALF OF THE RESPONDENT

	MR JUSTICE WOOD (PRESIDENT):  This is an appeal by Quenchers Limited who are the employers of Mrs McShane.  By an Originating Application dated the 12th September 1990 Mrs McShane alleged that she had been unfairly dismissed.

	Her case was heard by an Industrial Tribunal sitting at Manchester on the 21st January 1991 under the Chairmanship of Mr Hope, with the lay Members Mr Hilditch and Mr Wilson.  After hearing the evidence the Tribunal found that the Applicant had been unfairly dismissed and proceedings were then adjourned to give the parties an opportunity of discussing compensation and if they did not reach settlement then the adjournment was until Thursday, 21st March.

	The Reasons for the decision were promulgated on the 26th February 1991 and are before us.  Having criticised the procedural aspects of the dismissal the Tribunal in paragraph 8 of its decision, which is the last paragraph, say this:
"At this point the applicant, who had been accompanied throughout by her friend, who had sat by her but in no way counselled her when giving evidence, did not want to attend a further hearing.  It was also clear that Counsel for the applicant considered that to do justice to her claim for compensation he ought to call medical evidence to the effect that she was suffering from panic attacks, and from considerable stress since her dismissal, which made it quite impossible for her even to go out of the house let alone to look for or take another job . . ."

That was attributed to certain matters to which we need not refer.

	The case then was adjourned until the 21st March for the Applicant to obtain medical evidence and for negotiation to take place between the parties with a view to settlement.  The Tribunal then say:
"At the adjourned hearing the applicant herself would not be required to give further evidence."

	It is clear from the Notes of Evidence of the learned Chairman that the Applicant was asked certain questions during the course of that first hearing, so as to obviate the necessity of returning on the 21st March.

	This is a sad case because the Applicant had worked for many years and there had been no suggestion before the shortages in stock, which were concerned in this case, that she had in any way failed in her duties.  There is no doubt that she is suffering in her health but the question is, what is the cause of that?

	The Tribunal convened again on the 21st March as was indicated in the first decision.  By that time Mr Hilditch had died.  The Tribunal, therefore, consisted of the Chairman and one Member.

	At the first hearing the Applicant was represented, as she was throughout, by Mr Sutton of Counsel, but the Company was represented until the fourth hearing by Mr Kevin Kenney, the Managing Director.  At the hearing on the 21st March 1991, no evidence was called, submissions were made, and as a result the Tribunal made a basic award but did not make a compensatory award because doubt had been cast on the Applicant's medical condition and whether it was, in fact, caused by the dismissal.  Therefore, on that occasion the basic award of £2,722 was made.

	 Thereafter, by a letter of the 8th May which exhibited attached to it Counsel's opinion, an application was made for review.  Reference, in Counsel's opinion, is made to various medical records and one wonders what documentation was available.  The application of May 1991 for a review was heard on the 11th February 1992.  On this occasion the Company did not attend, and only Mr Sutton was there for the Applicant.  At that hearing on the 11th February in paragraph 4 the Tribunal note as follows:
"At the hearing, as previously, it was explained that one of the original lay members of the Tribunal had died and the applicant's Counsel agreed to the case proceeding before the Chairman and one member."

The Tribunal then deal with the application for review and decided that they would order a subsequent hearing by way of review, which ultimately was heard on the 16th June 1992.  By that time, indeed shortly before it, Mr Lawton, the Solicitor now instructed by the Company came on the scene.

	The Tribunal refused to adjourn to enable cross-examination of the Applicant or for further investigation of the medical evidence that was being put forward and indeed;  the documentation did not seem to be available for the Company until very late in the day.  There are a number of criticisms made by Mr Lawton, we do not need to go through each of them because of a point which we have taken on the constitution of the Tribunal.

	The first mention, as we have said, of the absence of a Member of the Tribunal and the consent of Counsel is in the decision of 11th February 1992 at which the Company were not present.  There is nothing to indicate that at the hearing of the 21st March 1991 anyone consented to the Tribunal sitting with only one lay Member.  The regulation which governs the constitution of tribunals is Regulation 5(1) of the Industrial Tribunals (England and Wales) Regulations 1965, that reads, subject to the provisions of paragraph 1(a) of this regulation:
"A tribunal shall consist of a chairman and two other members but, in the absence of any one member of a tribunal other than the chairman, an appeal may with the consent of the appellant and of the Board be heard in the absence of such member, and in that event the tribunal shall be deemed to be properly constituted.

Then there are certain situations where the tribunal may be differently constituted but they are not relevant for the present purposes.

	It seems to us that there was no evidence whatsoever that there was consent from the Company for the constitution of the Tribunal on the 21st March or on the 11th February and Mr Lawton confirms he was not asked to give his consent for the 16th June.  So that for those hearings the Tribunal must be considered to have been improperly constituted.  It seems to us therefore that we do not need to examine the substantial criticisms being made of various other matters because we are driven to the conclusion that the decisions of the 21st March 1991, and 11th February and the 16th June 1992 will have to be set aside.  This is tragic for the Applicant and how the matter is to be dealt with hereafter will be a matter for the learned Chairman to decide.

	We propose therefore to remit this matter to a different tribunal for consideration of compensation so that the decision on liability of the 21st January 1991 stands, but thereafter the matter is to be taken up by a newly constituted tribunal.

	We would suggest, without ordering it, that a hearing for directions is ordered and summoned by the chairman who will be conducting the matter hereafter, but this is a matter for the learned Regional Chairman to decide.  The appeal is therefore allowed and that Order will be made.