Appeal No.EAT/1433/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 31 January 2002

Before
MR RECORDER BURKE QC
MISS C HOLROYD
MR T C THOMAS CBE

MR V A DAVOREN	APPELLANT

LONDON FIRE PROTECTION SERVICES	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

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

MR RECORDER BURKE QC
1.	On 8 August 2000, the Employment Tribunal at London (South), received an Originating Application form IT1 from Mr Davoren, claiming that he had been wrongfully dismissed by London Fire Protection Services by whom he alleged he had been employed from January 1996 to July 2000.  In their Notice of Appearance, London Fire Protection Services denied that Mr Davoren was an employee and asserted that he was an independent contractor or consultant whom they used from time to time.  

2.	The Tribunal fixed 11 of October as the hearing date of Mr Davoren’s claim.  However it is clear that Mr Davoren and London Fire Protection Services reached an agreement through the offices of ACAS and set out in the appropriate COT 3 form signed by the parties that the claim would be withdrawn on terms agreed between the parties on the basis that London Fire Protection Services would pay £2500.00 to Mr Davoren, to put it broadly, in settlement of his claim and that that sum was to be paid immediately on receipt by London Fire Protection Services of a faxed copy of the COT3 form, signed by Mr Davoren.  It is not in dispute that that sum was paid as agreed.  It is clear from correspondence from ACAS to Mr Davoren that that agreement was reached on 9 October.  We would comment that the signature of Mr Davoren is dated 11 October and that of London Fire Protection Services is dated 12 October; but the agreement was reached on 9 October; there is no reason to doubt that that was so. Nor is there any reason to doubt (for it has been confirmed by ACAS in correspondence) that the ACAS representative told Mr Davoren that he, the ACAS representative, would advise the Tribunal of the agreement.  Mr Davoren and, no doubt, London Fire Protection Services understood that they needed to do nothing further.  It is worth stating specifically that the ACAS representative said in terms, in a fax to Mr Davoren, dated 9 October, “I will tell the Tribunal to stop the hearing”.  
3.	Neither party attended the hearing on 11 October.  Mr Warren, sitting alone as chairman, was not given any explanation of this non-attendance.  While ACAS assert that the Tribunal offices were informed of the agreement that had been made on 9 October and therefore that there need be no hearing, the Tribunal offices deny that they were so informed.  It is obvious that we cannot resolve that issue of fact.  For some reason the chain of information from ACAS to Mr Warren broke down.  As a result, Mr Warren dismissed Mr Davoren’s claim.  In the decision sent to the parties on 16 October, the Tribunal said, “The decision of the Tribunal is that the application fails and is dismissed”.  Mr Davoren applied on 24 October for a review of Mr Warren’s decision.  He set out the history; he indicated his concern that the register showed his application to have been dismissed rather than withdrawn as a result of settlement between the parties.  He sought a review on the grounds that the decision was reached in the absence of the parties, that new evidence had become available namely the evidence as to the agreement, and that the interest of justice required a review.  

4.	On 8 November, Mr Warren refused the application for a review, on the grounds that it had no reasonable prospect of success.  He accepted that an agreement had been reached through ACAS, pointed out that neither ACAS nor the parties had notified the Tribunal of the agreement and that it was not for the Tribunal itself to seek to find out why the parties had not attended, although the fact that neither party had attended might be thought to have given rise to some suspicion that something had gone wrong somewhere rather than there had been a deliberate decision by both parties not to attend a hearing in relation to a matter which on the formal papers appeared to be still in issue.  Mr Warren commented that Mr Davoren had no doubt received the agreed payment and concluded that the interests of justice did not require a review.  Mr Davoren today appeals against the refusal of that review which he had sought.  He has not appeared today and relies therefore on the simple papers before us; and London Fire Protection Service have written a letter dated 8 January saying that they do not oppose the appeal and that they have fulfilled the agreement reached at ACAS, no doubt by paying the monies due as we have already indicated.  

5.	We do not agree with the conclusion reached by Mr Warren, albeit one expressed by a very experienced chairman.  In our view, the failure to allow a review in this case amounted to an error of law.  It was not a decision which, on the facts before it, the Tribunal could reasonably have been reached.  We should say, first of all, that we regard the difference in the register and in the decision between the dismissal of the claim, as set out in the decision, on the basis that it had failed and a decision that it had been withdrawn or was dismissed upon withdrawal, the parties having reached agreement, as a difference of substance - a real difference.  We have no doubt that, if Mr Warren had been informed of the agreement on the original date of the hearing, the order he would have made would have been an order either that the application was dismissed upon withdrawal by agreement or an order that the application was withdrawn by agreement and that he would not have made an order that the application failed and was therefore dismissed.  Some may say that the difference is trivial; but we do not agree.  Mr Davoren is entitled to have the decision expressed in terms that reflect what had really happened and not what Mr Warren originally thought had happened.  Through no fault of Mr Warrens’, he had not been informed of the true situation.  

6.	One of the purposes of a review is to enable an order made in the absence of a party or of the parties to be corrected if it is appropriate to do so and in particular, if it is appropriate to do so in the interest of justice.  Far from the application for a review having no prospects of success, it appears clear to us that the only decision which could properly have been reached on the material before Mr Warren was that it had every prospect of success and indeed was bound to succeed.  No one would have been prejudiced by the replacement of the order dismissing the claim in the terms in which it was originally made by an order such as that which we have suggested.  It is possible that Mr Warren could have taken a slightly different course rather than granting a review; he could have simply corrected the error that we have described under the slip rule, that is to say under what was then rule 10 sub-rule 9 of the Employment Tribunal Constitution etc, Regulations Schedule 1.  Unfortunately he did not do that; nor did he grant a review.  One of these two courses should have been taken so as to correct the position which had mistakenly arisen; and in failing to take one or the other, we are satisfied that the Tribunal fell into error.  

7.	We have the power on appeal (i) to allow the appeal and direct a review or (ii) to allow the appeal, and if we are satisfied that a review could only have one result, to treat this as a review and make an order accordingly or (iii) to correct the error that was made under the slip rule which we have already identified.  It seems to us that the easiest and most sensible course is to take the last of those courses; and therefore we direct that the order and the register be amended, so as to substitute for the decision that the application failed and was dismissed an order that it be dismissed on withdrawal by agreement of the parties.  To that extent this appeal is allowed.