Appeal No. EAT/775/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 March 2002

Before
MR COMMISSIONER HOWELL QC
MR I EZEKIEL
MS G MILLS

MRS M CLARKSON	APPELLANT

(1) RUNSHAW COLLEGE 
(2) SECRETARY OF STATE FOR EDUCATION	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	No appearance or
representation by or 
on behalf of the Appellant 	

MR COMMISSIONER HOWELL QC

1	Mrs Marion Clarkson seeks to have set aside as erroneous in law the Decision of an Employment Tribunal Chairman on 6 April 2001 set out in Extended Reasons sent out on 10 April 2001, confirming on review a previous unreasoned Decision by the Tribunal given in a document sent to the parties on 29 December 2000. That recorded that the Originating Application Mrs Clarkson had made on 2 August 2000 to the Tribunal was dismissed on withdrawal by her.  

2	According to the information she provided to the Tribunal subsequently, the application by her to withdraw her proceedings had been based on information provided to her by the Respondents, the Runshaw College, which led to the conclusion that her proceedings were not worth pursuing.  These proceedings were one of many thousands of proceedings seeking to have backdated pension entitlements in relation to part time employment.  The reason she withdrew them was solely that figures she had been given by the college, or from the Teachers Pension Association, about her pension entitlement, meant that, given the actual calculations in her case it would not have been worth pursuing the proceedings, on the point of principle at all.  

3	That information, as explained in the application she subsequently made for her proceedings to be reinstated, was incorrect.  That appears to be tacitly accepted by the college, since they wrote to the Tribunal confirming that they consented to the reinstatement of her proceedings, so that the points of principle could be decided in her case, along with the many thousands of others.  

4	The Tribunal Chairman, in his Decision, rejected the application for the original dismissal of the proceedings to be reviewed.  In doing so, he held that it was not a case within Rule 1 of the Employment Tribunals Rules 1993, as then in force, and in particular, referred to the general principle of estoppel which operates in the normal courts against bringing a fresh claim after the dismissal of a previous one.  He held that by analogy, the same principle applied in relation to an application for review in the circumstances that Mrs Clarkson’s application had been made.  In effect, therefore he shut her out by operation of the doctrine of what is sometimes called “action estoppel” from renewing her proceedings, even though the actual dismissal had been purely a formal one on voluntary discontinuance by her. 

5	Her grounds of appeal against the Decision are simply that the result is patently unfair, and that she is being penalised after relying in good faith on information that was provided to her from a source which ought to have known the correct position; and the college also said that they had agreed to the reinstatement of her proceedings, so that there was no substantive objection to what she was seeking.  

6	Without determining the legal issues in the case, we simply say today that we have been satisfied that there is a sufficiently arguable point of law in what she seeks to put forward to warrant our directing that this case should go forward to a full hearing before the Employment Appeal Tribunal, inter partes.  

7	In particular we say that because we consider it is arguable that the Tribunal Chairman misdirected himself in holding that he was effectively bound by the doctrine of “action estoppel” to dismiss the application for review when the proceedings had previously been only formally dismissed; and we say that in the light of recent Court of Appeal authority which may give rise to a need for the Chairman’s approach to be reconsidered.  

8	Secondly, it appears to us arguable that the Tribunal Chairman may have misdirected himself by failing to take into account that the information, on which the original withdrawal had been based, had been provided by the Respondents themselves and that they specifically did not object to the proceedings being reinstated in the way that Mrs Clarkson sought.  

9	For those reasons we will direct that this case should go forward to a full hearing before the Employment Appeal Tribunal to be set down in listing category C, time estimate half a day; no Chairman’s Notes are considered by us to be needed for the full hearing and we will direct that Skeleton Arguments should be exchanged between the parties and lodged with the EAT not later than fourteen days before the date fixed for the full hearing.