Appeal No. EAT/690/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 20th June 1994

	Before

	THE HONOURABLE MR JUSTICE MORISON

	MS S R CORBY

	MRS M E SUNDERLAND JP

MRS W MARTIN	APPELLANT

CYANAMID AEROSPACE PRODUCTS LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J BENSON
(Of Counsel)
Messrs Steggles & Mather
Solicitors
Crown Buildings
121a Saughall Road
Blacon
Chester
CH1 5ET

For the Respondents	MR B BRINE
General Manager
CYTEC Aerospace Ltd
Abenbury Way
Wrexham Industrial 
Estate
Wrexham
Clwyd
LL13 9UZ

	MR JUSTICE MORISON:  This is an appeal against an Industrial Tribunal's decision which was entered in the Register on the 21st August 1992, that is very nearly two years ago.  Regrettably the Industrial Tribunal have set out in their decision two statements which are mutually incompatible.  In paragraph 5 of their decision they say:
"Mrs Martin was told clearly that she was refused leave of absence;  that she had no right to return after her pregnancy and that her job would be filled.  Indeed, her job was advertised . . .  However, we find as a fact that it was the applicant who asked Mrs Wilson [of the employers] if she could have a letter terminating her employment in order to help her claim for benefit."

They then concluded thus, in paragraph 6 of their decision:
"Therefore we find unanimously that Mrs Martin was not discriminated against when she was dismissed on 28 December 1991."

It seems to us that there is an inevitable conflict between those two statements and when the matter was raised in a Notice of Appeal filed on the Appellant's behalf the case was referred back to the Industrial Tribunal.  

	The Industrial Tribunal Chairman has indicated in a letter, the contents of which were made known to the parties, that when he used the word "dismissal" at the end of the decision he meant something else.  It seems to us that we cannot possibly deal with this decision on the basis that there is a correction to be made in accordance with what the Chairman has written to us.  We do not know whether he consulted with his Members before he wrote that letter, there is no indication that he has done so and it does seem to us, with respect, that justice requires that Tribunal decisions should be self-contained and not to be interpreted in the light of subsequent correspondence.  This is not a minor error of the sort which is readily corrected or readily to be understood as corrected, this is an important matter where there appears to be incompatible findings by the Industrial Tribunal.

	It follows, therefore, it seems to us that there needs to be a proper hearing of the Applicant's complaint.  But that means that it will have to be taken before another tribunal freshly constituted so that there is no danger of there being thought to be any prejudice to either party by having the same panel.  What therefore emerges is this:  that two years very nearly have nearly gone past before this Appeal Tribunal has dealt with this case.  It is now remitting the matter to another industrial tribunal, who in the circumstances will not hear this case until 1995.  That means that justice has been delayed and as is the maxim, "justice delayed is justice denied".  That applies equally to both parties.  In so far as the Applicant is concerned she is entitled to have her complaint speedily adjudicated upon.  She is required to make such a complaint within a shortish period of time for the very reason that it is thought sensible that these disputes should be resolved as close as possible to the events which give rise to them.  So far as the employers are concerned, they too are going to be prejudiced, both parties have had the expense of attending before an industrial tribunal;  presenting their evidence;  in the employers' case valuable management time, this being a relatively small company, have been wasted together with the costs of today. All this will be thrown away because the process is going to have to be started all over again.  

	We have considerable sympathy with both parties in this case.  Mr Brine, on behalf of the Company, rightly complains that as the successful party before the original Industrial Tribunal, as a result of this error for which he is not in the slightest bit responsible, his Company is now going to have to go through the expense of defending yet another case.  It seems to us that the position is very unsatisfactory but we are satisfied that we ourselves do not have the power, either within our Rules or under the Statute, to make any awards of costs.  It may be that if, in the light of our decision, Mr Brine on behalf of his Company were to write to the Lord Chancellor's Department asking whether it would be possible in the circumstances for any kind of reimbursement to be made that that letter might be considered.  I can not do more than indicate that that is a possibility.  I am not suggesting that compensation would necessarily be appropriate, what I am suggesting is that he may have an avenue which he can explore in that connection.

	Because we are sending the matter back for hearing before another tribunal it seems to us that the less we say about the merits of the case the better.  As I say, this case will not be able to be heard until January 1995 and should not be heard before that date for two reasons.  Firstly because the principal witness on behalf of the Company will not be available for reasons which do not need to be gone into in this judgment until the New Year to give again her version of what happened at the critical interview, and in any event it seems to us desirable that the decision of the European Court in the case of Webb v. EMO Air Cargo (UK) Ltd [1992] IRLR 116 should be resolved before this case is reheard, simply with a view to avoiding the expense of yet another appeal to this Tribunal if that is at all possible.