Appeal No.	 EAT/582/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 November 2001

Before
HIS HONOUR JUDGE D M LEVY QC
MRS A GALLICO
MR R SANDERSON OBE

NETHERCOATS (PROJECTS) LIMITED	APPELLANT

MR S J SMITH	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	Mr M West
Representative 
Peninsula Business Services Limited
Stamford House
361/365 Chapel Street
Manchester M3 5JY	
For the Respondent	Ms M Batten
Representative
Messrs Finn Gledhill
Solicitors
1-4 Harrison Road
Halifax
HX1 2AG	

JUDGE D M LEVY QC

1	The appeal in this case arises, in our judgment, because of an unfortunate concession made by the representative of the employer, the Appellant here, when a case was being heard by an Employment Tribunal sitting in Leeds on 23 March 2000, a long time ago.  

2	The Applicant, the Respondent to the appeal claimed unfair dismissal; that the Respondent was in breach of his contract of employment; that the Respondent failed to provide a witness statement of reasons for his dismissal; that the Respondent made unlawful deductions from his wages and that he was entitled to holiday pay, calculated in accordance with Working Time Regulations 1998.  An Order was made breaking down an award of the Appellant to £22,422.14 - the first branch of that was unfair dismissal compensation of £9,830.07.

3	It is apparent to us from the documents which we have seen that the representative of the Appellant, a Mr Cuttle, conceded that a £50,000 cap applied to the compensatory award in issue in this case.  If the Appellant is right that the date of termination of the Respondent’s employment was on 1 October 1999, the concession was wrongly  The concession was wrongly made.  On that date the cap was not £50,000 but £12,000.

4	Once that concession had been made, all the calculations were made on that basis. Mr West, who now appears on behalf of the Appellant, did not accept the concession was wrongly made, but said that the Tribunal had no jurisdiction to award compensation above £12,000 and therefore the Decision below was wrong.  We have heard a large number of cases cited to us by Mr West to show that the Employment Tribunal cannot go outside its statutory jurisdiction, the latest of those was the Clarke -v- Arriva Kent Thameside Ltd, an appeal heard by Douglas Brown J and colleagues on 25 July 2001 in which Mr West was the advocate for the Respondent.  There the panel considered the earlier decisions of this Court and preferred the decision of Mr Justice Morison in one to that of Charles J in another decision.  On the other hand, we have heard from Ms Burton who did appear below and she has cited to us such well known cases as Kumchyk -v- Derby City Council [1978] ICR 1716 and the recent decision of the Court of Appeal in Jones -v- The Governing Body of Burdett Coutts School [1998] IRLR 521.  

5	That last decision considered whether a new point of law could be raised or conceded then a point could be reopened.  The Court of Appeal held that:
“The EAT’s discretion to allow a new point of law to be raised or a conceded point to be reopened should be exercised only in exceptional circumstances, for compelling reasons, especially if the result would be to open up fresh issues of fact which, because the point was not in issue, were not sufficiently investigated before the employment tribunal.  There is a strong public interest in finality in litigation.  The inexperience of a party’s advocate is not a sufficient reason to allow new points to be raised, or conceded points to be re-opened.  Nor is the importance of the point to be raised.
If any court or tribunal exercises its discretion in a particularly unusual manner, it is bound to give reasons.  In the present case, the EAT gave no reasons for exercising its discretion in a way which seemed to run counter to established principles.  Its ruling fell outside the range within which it could reasonably exercise its discretion and, accordingly, the appeal will be allowed, even though the effect would be to reinstate what is now known to be a wrong construction of law.”

Here, the error was in the Employment Tribunal but the Employment Tribunal seems to us to have fallen into error because of a straight but unfortunate mistake by the advocate representing the Respondent to this appeal there, who unhappily made a wrong concession.

6	In our judgment, the merits of the case are with the Respondent to the appeal, because the Respondent was denied the opportunity of having other heads of compensation considered in the light of the compensation given for unfair dismissal compensation and because of that, in our judgment, will have to face a further hearing with the costs which that will incur.

7	In our judgment, Mr West is right in saying that if the right date of termination was 1 October, the Tribunal was wrong in accepting the concession that was made and therefore the matter must go back to the Tribunal to reconsider the case so that they can establish what was the proper date of termination of the employment and there should be a further damages hearing by  the same Tribunal, once that has been established.  

8	We reached this decision with regret because we feel this appeal has become necessary because of the behaviour of the Appellant and his advisers, but this is the only course we think we can properly take.  

9	This case was remitted to us without a preliminary hearing because there was an arguable point raised.  It would have been possibly better if there had been a preliminary hearing, so the issues could have been sorted out.  If that had happened, it might have well been that the costs of this appeal would not have followed.  

At the end of an unusual appeal, Counsel for the unsuccessful Respondent has made an application that the successful Appellant should pay the Respondent’s costs.  The appeal has been made necessary because of a concession wrongly made by the Appellant’s representative at the hearing below.  

The Appellant’s representative, for reasons which may or may not be valid, chose not to follow the offer made by the Regional Chairman to have a review before this matter came to appeal.  Looking at the merits of the case, in our judgment, it is appropriate in this case for the Appellant to pay 50% of the Respondent’s costs of the appeal.  

We have taken account of the Decision referred to us by the above Respondent’s Counsel, where costs were ordered, namely an unreported case of William Harrow Ltd -v- Hogg, an Employment Appeal Tribunal in Scotland, EAT 215 /78, an old decision which shows that in extraordinary cases, such an Order can properly be made.