Appeal No. UKEAT/0520/04/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 August 2004

Before
HIS HONOUR JUDGE MCMULLEN QC
(SITTING ALONE)

SAFEWAY STORES LTD	APPELLANT

MISS K Z ROYER	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	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

1.	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

1.	This case is about Employment Tribunal procedure in apparently reviewing a decision recording the Applicant’s withdrawal from the proceedings.  I will refer to the parties as Applicant and Respondent.

Introduction

2.	It is an appeal by the Respondent in those proceedings against an instrument of the Employment Tribunal Regional Chairman London (South), Mr John Warren, sitting alone, entered in the register on 12 May 2004, described as an order following a case management discussion.  At that discussion the Applicant was represented by a solicitor and the Respondent by Miss Caroline Barber who appears today.

3.	The Chairman decided to breathe life into the Applicant’s withdrawn claim.  The Applicant had made two Originating Applications and the substance of the Chairman’s decision was that the first withdrawn Originating Application should be revived.  The Respondent contended there was no power to do so.  The essential issue is to consider the effect of the three Tribunal instruments, to use a neutral term, in this case, for it is contended that as a matter of law and reality the Applicant’s first Originating Application is dead.

4.	Directions sending this appeal to a full hearing were given by Burton J, President.  The Applicant is represented by her mother, Ms Gayle.  The Registrar ordered on 23 August 2004 that the Applicant be debarred from taking further part in the appeal because of her failure to reply to the EAT letters of 21 July and 2 August 2004 and to comply with the Registrar’s Order of 17 August.  This was an ‘unless’ order indicating that unless the Applicant filed a Respondent’s Answer with an application for an extension of time giving reasons for the delay by 18 August she would be debarred.

5.	She has not attended today, although a doctor’s certificate was produced and lodged at the EAT on 25 August (yesterday) indicating Miss Gayle was unwell and not medically fit to attend today’s hearing.  That of course is academic in view of the Registrar’s previous decision.

6.	The chronology of this case is important.  On 24 September 2002 the Applicant presented her first Originating Application.  The complaint was that she had been dismissed.  The outcome of the dispute she had with the Respondent was that the Applicant was reinstated.  The Applicant was represented on 7 May 2003 by solicitors who wrote in the following terms to the Tribunal:

“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 17th 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 17th March 2003.
We apologise for the late notification to the Tribunal and would stress that no discourtesy is intended.”

7.	In response, the Regional Secretary, on 9 May 2003 wrote in the following terms:

“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.

8.	As predicted in the withdrawal letter, a second Originating Application was lodged on 12 June 2003, in respect of which a case management discussion was conducted on 8 January 2004 by Ms C E Taylor, Chairman sitting alone, at London (South).  The Applicant did not appear.  Some days earlier she had sought postponement because her mother, who was representing her at that time, was unwell and a sick note supported that application.

9.	The Regional Chairman, Mr Warren, refused the application on the grounds that the substantive hearing of the case was only a short while ahead (19-20 February 2004) and so the case management conference went ahead.  The Respondent was represented by a trainee solicitor.  The Ms Taylor said as follows, amongst other observations and directions which she gave:
“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 next relevant step was a further case management discussion on 10 May 2004.  By this time the Applicant’s case was in the hands of different solicitors, Ray & Co, the papers having previously been passed on from CFB Partnership and from the Wandsworth Law Centre who were in charge of the Applicant’s advice in March 2004.
11.	The case management discussion on 10 May 2004 was conducted by the Regional Chairman, Mr Warren.  The Applicant was represented by a solicitor and the Applicant by Ms Barber.  The heading of the proceedings is “ORDER following a Case Management Discussion”.  The day before the discussion Ms Barber had been told an application would be made and she formed the view that the Applicant’s solicitor was applying for a review of Ms Taylor’s decision and would be applying out of time.  The Regional Chairman said this:

“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

12.	The relevant provisions of the Rules which regulate these proceedings are as follows:

“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.

13.	Powers are given to Chairmen sitting alone under Rule 15.  By Rule 15 (8) a review must be conducted by a three-person Tribunal and not by a Chairman alone.  A decision is described in the interpretation of the Regulations as follows:

“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…

14.	The Court of Appeal has considered the impact of decisions being withdrawn, for in Barber v Staffordshire County Council [1996] IRLR 209 at paragraphs 30 and 31, upholding the EAT’s (Mummery J presiding) judgment said this, in the judgment of Neill LJ, with whom the other two Lords Justices agreed:

“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

15.	It must be noted that in the Barber case a withdrawal had been made in front of a three-person Tribunal at a hearing without any evidence being called and a decision, properly so called, had been reached, dismissing the Originating Application on withdrawal by the Applicant.  The contention of the Respondent in the instant proceedings is that, however it is put, finality had been reached in withdrawing the Applicant’s claim, either in May 2003 or January 2004.

16.	The withdrawal of complaint signed by the Regional Secretary does not comply with the conditions for it to be a decision.  It seems to me it is an order.  It can only be understood in full by reference to the letter which accompanied it.  In that case there is no doubt that the Applicant was calling a halt to the matters complained of in the Originating Application, for things had moved on and she was to make a further complaint about new matters, as indeed she did.

17.	It seems that this can be described as an order, but it is in reality a decision, albeit lacking the central elements such as signature and a decision by a Chairman.  There was obviously some doubt about this because Ms Taylor at her case management conference made the Decision which from which I have cited above.  It is to be noted that she decided to make the comments she did “for the avoidance of doubt”.

18.	Whether she was referring to what happened on 9 May and simply recording her appreciation of those events, or whether she was making a new decision, does not seem to me to matter.  This document is undoubtedly a decision, for it is a decision of Ms Taylor and signed by her.

19.	Certain aspects of it might be described as an interlocutory order which would take it outside of the remit of being a decision, but it seems to me that the best view of it is that this records a decision made either on 9 May, taking the matter out of the lists, or finally determining the matter on 8 January 2004.

20.	The power to review an order may be doubted.  As I have noted, a decision can be reviewed but an interlocutory order cannot.  The mechanism for challenging or expressing disagreement with an order is to appeal to the EAT or to seek a variation or a discharge of the order within the liberty that is usually given by a set of standard words at the end of such orders.

21.	So, if it is an order it cannot be reviewed. For that reason the instrument is quashed.  

22.	It is further contended on behalf of the Respondent that the Chairman had no power as a Regional Chairman to review a Chairman’s decision.  I agree.  No special powers are given in this context to a Regional Chairman.  A Regional Chairman does have certain powers in the Rules, but not in this context.  If it is a decision it can be reviewed but not by a Chairman sitting alone: Rule 15 (8) (c).  There was no power in the Regional Chairman to review the earlier instruments of May 2003 and January 2004.  For that reason also the instrument is quashed.

23.	I am also asked to consider whether or not the decision was perverse, for it is contended that no reasons were given for allowing a review to take place either a year after the withdrawal or 4 months after the decision by Ms Taylor.  It seems to me that that submission is correct.  No grounds were given for exercising discretion to allow an extension of time, and for that reason also I would uphold the appeal.

24.	Whether or not the decision was perverse requires a high threshold to be passed by an Appellant.  It seems to me that if the Chairman did have power and, contrary to my earlier judgment, he did so correctly having exercised his discretion, the decision he made would not have been challengeable.  He certainly considered the matters within the Originating Applications and the circumstances surrounding it.  It would be difficult to contend that that was perverse if all he were considering were the decision of Ms Taylor.

25.	However, I have taken the view that full consideration of the order of May 2003 can only be given once the letter from CFB Partnership is also considered.  It is plain that effect was given to the application on of the Applicant following clear legal advice that her claim should be withdrawn and thus dismissed, and no additional reasons have been given for that matter to be reopened.  It is not in the interests of justice for litigation to continue open-endedly for the principles in Henderson v Henderson 1843 3 Hare 100 of cause of action estoppel (or more accurately right to complain estoppel) apply in the Employment Tribunal. 

26.	This appeal is allowed.  I would like to thank Ms Barber very much for her concise written and oral submissions this morning.

27.	At the Respondent’s submission I understand the hearing of this case will now take place next month and in the interests of justice, whilst it is made expressly clear by Ms Barber that there is no allegation of bias or apparent bias, it would seem preferable that the case be heard by a Chairman other than Mr Warren or Ms Taylor.

28.	I can see no basis for any criticism of him in the way he conducted the proceedings, but since the hearing is a month off and since it has had a chequered procedural background, it seems to me that out of an abundance of caution I will accede to Ms Barber’s submission.