Appeal No.	 EAT/670/99 & EAT/671/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 December 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MRS A GALLICO
MR D J JENKINS MBE

(1) MR A GENTLE (2) MR J RACKSHAW (3) MR S ROBINSON	APPELLANTS

PERKINS GROUP LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	THE THIRD APPELLANT IN PERSON AND ON BEHALF OF THE FIRST AND SECOND APPELLANT	
For the Respondents	MR J TAYLER
(of Counsel)
Messrs Wragge & Co
Solicitors
55 Colmore Row
Birmingham
B3 2AS	

MR JUSTICE LINDSAY (PRESIDENT):		We have before us today a further hearing in the matter Gentle, Rackstraw and Robinson v Perkins Group Ltd.

1.	The matter  came before the Employment Appeal Tribunal at some length on 12th June 2000 when the Employment Appeal Tribunal (a different panel of three – but I am common to both hearings) remitted to the Employment Tribunal questions as to re-engagement and reinstatement. But one of the issues that did arise on 12th June, although in a rather incomplete form, was whether there were any other issues properly then in front of the Employment Tribunal, issues other than re-engagement and reinstatement. That hearing on 12th June took the full day that was given to it and, as I shall explain shortly, an issue remained left over and was adjourned for further hearing. This is that further hearing; I will have explain the procedural background rather more fully.

2.	The relevant chronology begins with what one might call an original Notice of Appeal. It was dated 14th May 1999 and received at the EAT on 21st May 1999. It was lodged by Messrs Gentle, Rackstraw and Robinson. It is headed “Notice of Appeal for Re-engagement” and at paragraph 5 it says:

“The grounds upon which this Appeal is brought are that the Employment Tribunal erred in law as follows:-“

	Then there are a series of alphabetical headings running a) to o) and then at paragraphs 6 and 7 it said this:

“6)	The Appellants respectfully asked the Employment Appeal Tribunal to consider in addition to this Application and in particular in light of the attached Certificate of Correction, the compensation and costs order made by the Employment Tribunal to ensure that the amounts awarded are correct and just and equitable in all the circumstances.
7)	Further the Appellants respectfully ask the Employment Appeal Tribunal to consider awarding costs for all the associated hearings in connection with this matter which includes the tribunal hearings and interlocutory hearings that the Chairman has refused and all the hearings before the Employment Appeal Tribunal.”

	The alphabetical grounds, which I have mentioned, go, broadly speaking, to questions of reinstatement or re-engagement, but paragraphs 6 and 7, as one has seen, relate to a different subject. 

3.	That Notice of Appeal was headed as to re-engagement and there was a corresponding one, in slightly different form, for reinstatement but not including an equivalent, certainly not a precise equivalent, of the paragraphs 6 and 7 which I have just cited.

4.	On 18th October 1999 there was directions hearing that came on at the Employment Appeal Tribunal before His Honour Judge Hicks QC. An order was then made, the relevant part of which is this:

“THE TRIBUNAL ORDERS that the Appeal be allowed to proceed to a full hearing of the Employment Appeal Tribunal
THE TRIBUNAL FURTHER ORDERS that leave be granted to amend the Notice of Appeal in the terms annexed hereto.”

	The form annexed thereto we have, it is a page and a third long, and it is headed “Amended Notice of Appeal” and it says “6.” (there is no reference to the preceding paragraphs 1 to 5) and “6” begins:

“The grounds of appeal are that the tribunal erred in law in holding that by reason of the lack of trust and confidence between the appellant and the respondent, re-engagement was not practicable in that:”

	There are then subparagraphs (1) to (5) that are there set out. The fact that it begins with paragraph 6 is plainly a reference to schedule 1, form 1 of the EAT Rules which is to be found at page 1300 of Butterworths Employment Law Handbook, Eighth Edition, where, in the form, one sees “6”:

“The grounds upon which this appeal is brought are that the [employment tribunal] erred in law in that (here set out in paragraphs the various grounds of appeal).
Date 
Signed.”

	It is plain that reference “6.” in the amended Notice of Appeal was meant to set out the grounds upon which the appeal was brought.

5.	That form emerged by way of assistance which Mr Hillier of Counsel, who was then appearing for the appellants under the ELAAS scheme, prepared for the hearing and was plainly put before His Honour Judge Hicks and before Mr Tuffin and Professor Wickens, who were sitting with Judge Hicks. It is convenient to call that form that begins with paragraph 6 and is divided into 5 subparagraphs as the “Hillier Form”.

6.	That form must have been sent to the respondents at some stage as being the amended Notice of Appeal which was required to be answered because on 24th November 1999 the “Respondent’s Answer” as the “Respondent’s Notice” was framed. It is spread over some three and a bit pages and it exactly fits the Hillier Form. It says, for example, in paragraph 3(1) “As to ground (1) of the Appellants’ Amended Notice of Appeal”, and then in 3(2) “As to ground (2)” and so on and it runs down to “As to ground (5) and it exactly fits the subparagraphs of the Hillier Form and it deals with nothing but the Hillier Form.

7.	That Respondent’s Answer must have been sent to the appellants, who, I should mention, have throughout acted in person and, generally speaking, with Mr Robinson, one of the three, as their spokesman. The Respondent’s Answer needed to be sent to the appellants so that appellants would know the sort of case that they would have to meet from the respondents. The appellants should have seen that the Respondent’s Notice exactly fitted the Hillier Form and did nothing but answer the Hillier Form. 

8.	On 31st January 2000 the appellants sought to introduce a new form of amended Notice of Appeal. A document headed “Appellants’ amended Notice of Appeal for Re-employment” emerged, which includes the Hillier Form, but goes beyond it in several respects, in particular in relation to compensation and costs claims. It ends up saying:

“This amended notice of appeal supersedes the previous dated ones dated 14.5.99 and 18.10.99.”

	It had no authority so to state because there had been no permission given for this new form of 31st January 2000, nor for the super-cession of the document of 18th October 1999. 

9.	There was then no application for leave to amend to that new form put before the EAT and no respondent’s appearance to this amended for was called for either. But it was perhaps in that circumstance that a directions hearing was arranged for hearing on 17th May 2000. 

10.	That hearing came before His Honour Judge Peter Clark here at the EAT with Mr Robinson speaking for the three appellants and Mr Sean Jones of Counsel for the respondent company. So both sides were present. His Honour Judge Peter Clark described how there were two current appeals before the EAT, both instituted by separate Notices of Appeal of 14th May 1999, one going to reinstatement and one going to re-engagement. He sets out that there had been a hearing before Judge Hicks QC on 18th October 1999. He mentions a note of the judge’s judgment on that occasion. He says in his paragraph 3:

“Separate orders were made in both appeals allowing each to proceed to a full hearing.”

	He mentions that Mr Hillier had appeared under the ELAAS scheme and at paragraph 4 he says:

“Pursuant to the order made by Judge Hicks’ Tribunal the full hearing on these appeals, which are consolidated, is to take place on 12 June 2000. This is a directions hearing held to determine the following procedural matters:
(1)	Whether the Appellants ought to be granted leave to rely upon a proposed further amended Notice of Appeal dated 31 January 2000.
…”

	and that is the only passage I need to read at the moment. Then he turns to that subject a little later under a heading “The application for leave to re-amend the Notices of Appeal”:

“Following discussion with the parties this morning, it seems to me that Judge Hicks’ Tribunal allowed these appeals through to a full hearing on the basis of the amended Grounds of Appeal settled by Mr Hillier only. I read the orders made at that stage as amounting to a substitution of those grounds of appeal for the grounds appearing in the two original Notices of Appeal dated 14 May 1999.
In these circumstances I shall not grant leave to the Appellants to further amend in the form of the composite proposed re-amended Notice of Appeal dated 31 January 2000. The issue at the hearing on 12 June will be whether or not the Tribunal below erred in law in concluding that there was a loss of trust and confidence between the parties such that neither reinstatement nor re-engagement was an appropriate remedy.”

	That led to an order of 17th May 2000, which includes:

“IT IS ORDERED that in accordance with the Judgment of the Employment Appeal Tribunal leave to re-amend the Notice of Appeal be refused”

	and the rest we do not to go into.

11.	On 27th May 2000, Mr Gentle, writing on behalf of the all three appellants, wrote to the Employment Appeal Tribunal a letter:

“FOR THE ATTENTION OF H. H. JUDGE PETER CLARK
Dear Sir
RE:	GENTLE, RACKSTRAW & ROBINSON –v- PERKINS GROUP LIMITED
…
On the grounds of the following facts, the Appellants request that you review your decision from the Directions hearing of 17 May 2000, and change SUBSTITUTE to AMEND NOTICE OF APPEAL.
…”

	There are then references to the appellants having obtained a copy of the ELAAS note made by Mr Hillier relative to the hearing on 18th October 1999 and there is reference to EAT staff sending Mr Hillier’s submission to the respondents but the important thing is, for immediate purposes, that the letter invites His Honour Judge Peter Clark to review the decision of the 17th May 2000.

12.	The EAT’s power to review is conferred by Rule 33 of the Employment Appeal Tribunal Rules 1993 and it reads as follows:

“33.-(1)  The Appeal Tribunal may, either of its own motion or on application, review any order made by it and may, on such review, revoke or vary that order on the grounds that-
(a)	the order was wrongly made as the result of an error on the part of the Tribunal or its staff;
(b)	a party did not receive proper notice of the proceedings leading to the order; or
(c)	the interests of justice require such a review.
(2)	An application under paragraph (1) above shall be made within 14 days of the date of the order.
…”

	and then there is a reference to clerical slips, which we are not concerned with. So there is Mr Gentle, on behalf of all three appellants, inviting His Honour Judge Peter Clark and the tribunal to review the order of 17th May 2000.

13.	By then the hearing, which was fixed for 12th June 2000, was really quite close. On or about the 12th June 2000 a letter was handed or sent to the parties relative to that application for a review and it says this (it is written on behalf of the Registrar):

“MR A GENTLE, MR J RACKSTRAW & MR S ROBINSON v PERKINS GROUP LTD
I refer to the above matter and your fax of 27 May 2000 which has been referred to His Honour Judge Peter Clark who directs you renew your application at the full hearing.
A copy of this letter and your fax of 27 May will be placed before the Appeal Tribunal.”

14.	The matter came on for hearing on 12th June 2000 for full hearing. As the matter began it emerged that the appellants wished to raise issues going beyond the Hillier Form and beyond that description which His Honour Judge Peter Clark had described as the subject matter of the appeal. Mr Sean Jones of Counsel, then appearing for the respondent company, objected on behalf of the company, that, properly speaking, only the Hillier issues were allowed to go forward by the preliminary hearing and that the respondents had not prepared any argument on any issues other than the Hillier issues and that it would not be right, therefore, to deal with them and that if they were insisted upon to be dealt with, there would have to be an adjournment.

15.	The argument of that character was such that it was plain that if non-Hillier issues, if I can call them that, were to be dealt with there would have had to have been an adjournment. So what was done was that only the Hillier issues were dealt with. They were plainly the most substantial, concerning reinstatement and re-engagement. The other matters were left over. 

16.	In the course of a long judgment, at paragraph 56 one finds this:

“There have been other issues sought to be raised at the very beginning of the hearing before us which went outside that which His Honour Judge Clark had indicated was the proper area to be investigated today. Quite what those other issues are we cannot be sure because they were never fully explained but they involve, for example, costs and forms of compensation and so on. We note that Mr Robinson made application that there should be a hearing of those other issues. We note also that, if that had been permitted, Mr Jones would, not unnaturally, have said that, not having come prepared to argue those issues, there would have had to have been an adjournment. It was on that basis that we elected to continue the hearing with what was plainly prepared as the matter for hearing today, leaving aside the other matters as matters to be adjourned. We have not really heard the full nature of a case on the subject of whether there are issues that can still properly be raised other than the ones we have already dealt with and whether there is, in fact, anything proper to be adjourned and before we finish today – it is now 18 minutes to 5 – we perhaps need to hear what those other issues are, whether they have already been thoroughly ruled out or whether it is still possible for them to be adjourned.”

The judgment continues:

“[After hearing parties further]
57	All we can do is adjourn the question of whether there were further issues that were capable of being raised today and that should have been raised today for restoration to the Employment Appeal Tribunal within two months.”

	Well, two months, of course, has plainly been exceeded.

17.	The parties then set about correspondence, not to any great effect. On 30th October 2000 a letter was written by the EAT - it had obviously been put to me for approval – to both Wragge & Co for the respondents and to Mr Robinson on behalf of the three appellants, and it says:

“This is a response to the letter sent to the Employment Appeal Tribunal from Wragge & Co on the 19th October 2000. It will be convenient to deal with the matters in numbered paragraphs thus:-
1.	The President does not understand any appeal to the Court of Appeal to have been lodged against the decision of His Honour Judge Clark of the 17th May 2000.
2.	The issues for the hearing on the 14th December are:
(a)	Whether any (and, if so, what) issues remain for hearing at the EAT, being issues that should properly have been heard on the 12th June 2000 but which were then adjourned upon their not then being reached;”

	Then there is further reference, which I do not need to read at this stage.

18.	What we now have in front of us is an adjourned application for a review of Judge Peter Clark’s decision of 17th May 2000, namely the decision where the issues for the appeal were limited in the way that we have already cited.

19.	The respondents had no reason to think that anything but the Hillier Form had been authorised to go forward to a full hearing. The appellants should have been able to see from the form that the Respondent’s Answer took that the respondents were answering only the Hillier Form. His Honour Judge Peter Clark heard the parties on 17th May 2000 and ruled that it was only the Hillier Form that was to go forward but in fact broadening it so that both reinstatement and re-engagement should be covered in the way that the citation from his judgment shows.

20.	The power to review, as we have mentioned, is limited. We have no reason to think that the order of 17th May 2000 was derived from any mistake on the part of EAT staff, nor does the question of any party not receiving proper notice arise. So the question is, in practice, whether the interests of justice here require a review of that decision.

21.	The issues had been plainly ventilated on 17th May. His Honour Judge Peter Clark speaks of that. The new form that the appellants were seeking, that is to say the form of 31st January, was plainly ruled against. No leave to amend to that form was given. Although we have heard argument today from Mr Robinson on behalf of the three appellants, we have no been able to see a case for a review in the interests of justice of that decision of 17th May. There is no doubt at all that the three appellants feel very strongly, and, if one reads the whole of the judgment of the Employment Appeal Tribunal of 12th June (and it would be as well that anyone needing to consider this judgment does read the whole of that judgment for a fuller background) one can see that the appellants do indeed have grounds for a considerable unease, to put it no higher. Indeed, I think there are references in that judgment of 12th June to righteous anger being a justified possibility or response on their part. But, if we limit ourselves, as we must, not to more emotional issues but to the simple question of whether the interests of justice point to a review of the decision of 17th May, we are not able to find any such interests of justice requiring the review. But that is not really an end of the matter. Although the appellants might think that that denies them something of substance, Mr Taylor, who has appeared today for the respondents, has taken us carefully through the various heads of prospective appeal which the appellants would have liked, had they been able, to have brought to the EAT. We are bound to say, although it is no part of our case today so to rule, that it would seem to be the position that what is being denied by this judgment to the appellants is not anything of any great substance. For example, to the extent that the appellants wish to seek orders as to costs in relation to earlier Employment Tribunal hearings, well, they could not possibly be appealed within the framework of the wished-for Notice of Appeal or one of the Hillier Form or even in the original form; they were not matters that could have been in issue at the EAT following the Notice of Appeals of 14th or 21st May or later. To deny those issues as possibilities to the appellants is, in effect, to deny them nothing of substance. Then the appellants seek litigant-in-person costs in relation to Employment Tribunal hearings. But it is at least arguable, we need put it no higher than that, that the Employment Appeal Tribunal can only award litigant-in-person costs in relation to hearings at the Employment Appeal Tribunal. So again, for us to deny litigant in person costs in relation to Employment Tribunal hearings is to deny the appellants nothing. What about the cases where no costs were ordered in the appellants’ favour at the Employment Tribunal hearings? The appellants would like to have that subject looked at again and they would hope to have orders made in their favour where they had had none before. But, short of a perversity case being made out, it is hard to see how anything on those lines could ever be achieved in the appellants’ favour. No grounds as to perversity are set out even in the original Notice of Appeal of 14th and 21st May or the later form which was denied to the appellants the form of 31st January. Then the appellants would wish to seek compensatory awards of great substance. Why not? The history of the 12th June case shows that they have reason to feel that they have been poorly dealt with. This is not a matter for us today, but Mr Taylor argues - and it is all set out in writing sent to the appellants - that on any footing the earlier cap on awards of that nature is still applicable and that to deny them a chance at a higher cap depends upon them succeeding in an argument which plainly would , at lowest, be difficult and perhaps even more difficult than that. 

22.	It is some comfort to us, though it may not comfort the appellants, that in coming to our decision that there is no ground for a review of Judge Peter Clark’s decision we are probably denying the appellants little or nothing of real substance. That is not a ground which has affected our decision on the review, but it is some comfort to us when coming to the conclusion to which we have come. But, simply reverting therefore to the main matter, we see no ground for reviewing the judgment of His Honour Judge Peter Clark and accordingly, the only matter before the Employment Appeal Tribunal on 12th June was the Hillier matters which have already been dealt with, and nothing further, therefore, remains to be dealt with on appeal to the EAT.