Appeal No. UKEAT/0129/04/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 April 2004

Before
HIS HONOUR JUDGE McMULLEN Q.C.
(SITTING ALONE)

THE MAYOR & BURGESSES OF THE LONDON
BOROUGH OF ISLINGTON	APPELLANTS

MR D GUEST	RESPONDENT

Transcript of Proceedings

JUDGMENT ON A REVIEW

Revised

	APPEARANCES

For the Appellant	MR D BASU
(of Counsel)
Instructed by:
London Borough of Islington
Law & Public Service Dept
Town Hall
Upper Street
London N1 2UD

	
For the Respondents

	MR J HORAN
(of Counsel)
Instructed by:
Islington Law Centre
161 Hornsey Road
London N7 6DU

SUMMARY

Applying recent authorities, the EAT has power prior to a full hearing to remit to an Employment Tribunal an issue in the case upon which it did not make a decision or upon which it made a decision but gave no reasons for it.  

HIS HONOUR JUDGE McMULLEN Q.C.:

1.	On 4 February 2004 His Honour Judge Ansell gave directions on the sift in this appeal brought by the London Borough of Islington, against a decision of the Employment Tribunal sitting at London Central, promulgated with extended reasons on 26 November 2003.  Judge Ansell decided that this matter should be put before a preliminary hearing of a Judge and two Members in accordance with the Practice Direction.  It came on for a hearing in accordance with that order on 22 March 2004 when Mr Dijen Basu of Counsel alone was heard.  The skeleton argument which he presented persuaded that Employment Appeal Tribunal, consisting of myself, Mrs Holroyd and Mr Singh, to send the matter to a full hearing.  However, it became apparent that some points might be capable of resolution. We accepted that confident expression of opinion put forward by Mr Basu, noting as we did, that both sides were represented by experienced employment law Counsel.  It seemed to us that the point Mr Basu was expressing might be capable of resolution by agreement and for that reason the order which we made included the following:-

“Within 14 days of the seal date of this Order the Respondent must lodge with the Employment Appeal Tribunal and file an Answer.  The Respondent’s answer should also include specific answers to points raised by the Appellant to the evidence summarised.  The parties are to consider the matter further and if it is agreed between the parties that the evidence was given and that the consequence of it is that the Tribunal ought to consider this matter then the Employment Appeal Tribunal will consider a consent order to allowing the appeal to go back to the Tribunal for a re-hearing of that part of the Decision.  If such Answer include a cross-appeal the Respondent shall forthwith apply to the Employment Appeal Tribunal on paper on notice to the Appellant for directions as to the hearing or disposal of such cross-appeal.”

2.	The usual mechanism for agreeing matters in dispute, as provided in PD para 7, was also set out in paragraph 4 and no resolution has yet been achieved of certain outstanding matters. It would not be appropriate to seek the Chairman’s Notes until there had been a breakdown in that process and a decision by a judge.  In that way, the necessity for the Chairman to transcribe notes is either forestalled or diminished.

3.	The matter was set up for a hearing which has not yet been fixed but in the meantime on 7 April 2004 an application was served on behalf of Mr Guest by Islington Law Centre seeking a copy of the Chairman’s Notes and asking as follows:-

“I write to apply for an order that at this stage without admission of the grounds of appeal by the Respondent, the Employment Tribunal be asked to expand upon its reasons why it found Mr Guest was 100% likely to be given the job he applied for if the discrimination had not occurred, having particular regard to the Appellant’s Notice of Appeal at paragraphs 6(i) (ii) and (iii).”

4.	That request is supported by reference to English v Emery Reimbold & Strick Ltd [2003] IRLR 710 CA and to a decision of Burton P on 31 March 2004 in London Borough of Hackney, Elaine Pearce & Mary Richardson v Mrs Sagnia PA/0054/04.  A copy of that judgment is not yet available.  I have given case management directions in that case which is proceeding in accordance with the President’s ruling.

5.	On 8 April 2004 I acceded only to the second request in the letter which was to direct as follows:-

“The Employment Tribunal Chairman be invited to record the Employment Tribunal’s reasons awarding the appellant 100% of his compensation within 14 days.”

6.	The Chairman has asked for extra time because of his leave commitments and was due to present that record today.  I have not seen it.  An urgent fax was received at the Employment Appeal Tribunal dated 25 March 2004 and lodged on 22 April 2004.  This seeks a review pursuant to Rule 33 of the EAT Rules in that the interests of justice requires such a review.  The grounds, broadly speaking, are as follows:-
a.	The EAT did not seek Islington’s view on the application prior to making the order.
b.	The EAT has no power to order the tribunal to add further material to its reasons.
c.	“The form of the order requires the Chairman alone to record the reasons and this excludes the consideration of Lay Members.”

7.	I considered this application earlier this week, and, in view of the impending delivery of the Chairman’s reasons, invited the parties to be heard at an application for a review to take place at 2pm today, listed for 30 minutes.  I invited them to submit representations in writing or to say that they wished a hearing to take place and the latter has been done. The order which I made includes a liberty to apply to vary or discharge the order and reserves to the EAT the right to amend the order.

8.	The legal dispute between the parties relates to the award of compensation to Mr Guest in respect of disability discrimination by Islington against him, which was the subject of a finding and is not appealed.  The discrimination award was in the sum of £11,194.50.  The complaint on appeal is that the Employment Tribunal did not assess the size of the chance, if any, that the applicant would have been appointed to the post from which, by reason of his disability, he was the subject of discrimination.  

9.	The matter which has not been capable of resolution between the parties relates to what evidence was challenged and unchallenged on this point. When I looked at these papers it appeared to me that the interests of justice did require a review.  Generally speaking, judges in the EAT make orders, both on the sift and for the subsequent case management of the appeals, without consultation with the parties.  But such orders are by definition provisional in the absence of a party.  In the order which I made in response to the Law Centre’s letter, the usual form, giving the parties the right to apply to vary or discharge, was not included. For that reason, I have determined that it is in the interests of justice that a review take place and that is what I am now doing.

10.	Within the very short timescale which I set for the reasons I have given, both Counsel, Mr Dijen Basu for Islington and Mr John Horan for Mr Guest, have presented full skeleton arguments to me and have co-operated in producing the bundle of about 15 authorities.  I am very grateful to them for their expedition and their flexibility. I now turn to the essential arguments. The parties have been heard, and that disposes of the first ground of complaint. 

11.	The second, the jurisdiction issue in this case, is one which has been before the Employment Appeal Tribunal on a number of occasions.  Most authoritatively, it was dealt with in the judgment of the EAT, Burton P. and members, at a full hearing in Burns v Royal Mail Group plc (formerly Consignia) and Another UKEAT/0873/02 on 14 January 2004, where, coincidentally, Mr Horan was arguing the opposite proposition to the one he takes today.

12.	The power of the EAT to intervene and to solicit a decision, or, alternatively, reasons for a decision, was the subject of judgment.  The President carefully examined the tension that there is in a jurisdiction which requires both finality of decision-making and a requirement that all aspects of a case be dealt with which are in issue. Until there has been such a conclusion an Employment Tribunal has not done its public duty. The President relied upon the judgment of the Court of Appeal in English, (above), for exercising the power which the EAT, he said, has:-
“before a final hearing to seek either a decision or reasons for a decision from an Employment Tribunal.  It is to be noted that these are not for offering a second bite of the cherry of imperfect reasons but to supply material which is missing and which ought to have been included.”

13.	I adopt and follow in full the reasoning of the President in that case. It was in part based upon a judgment also of the President in Adebowale v Peninsula Business Services Ltd EAT/1135/02 and of myself with Members in Prebon Marshall Yamane (UK) Ltd v Rose EAT/1000/02.  The President in Adebowale largely agreed with my reasoning in Prebon referring to what he described as my traditional approach to binding authority, which I had analysed in Prebon.  I again consider this to be, if I may say so, a correct analysis of the state of the authorities.  See paragraph 19.3 of the President’s judgment in Adebowale.

14.	I have also dealt with the same problem in Broadland Guarding Services Ltd v Walker [2003] UKEAT/0872/03/1512.  And so has Lord Johnston presiding in the EAT in Bax Global Ltd v French [2003] UKEAT/0596/03/2010.  These can be added to the reasons, which I have not seen but the gist of which I understand, in the Sagnia (above) case.

15.	It will also be apparent from the President’s judgment in Burns v Royal Mail (above) what considerations went into deciding that the EAT had power to take the step which I have described.  These relate to practicality, commonsense, the saving of costs and time, and he noted that this approach had met the approval of many users of the Tribunal system.

16.	In one of the principal authorities Tran v Greenwich Vietnam Community Project [2002] ICR 1101, criticism was made of the delays in the Employment Tribunals and the EAT.  That is not the first time that such criticisms have been made in the Court of Appeal and they have been reflected in judgments of the European Court of Human Rights, see e.g. Somjee v UK.  Under the presidency of Mr Justice Burton a new Practice Direction was formulated in 2002 and new practices were adopted here, in order in part, to meet those valid criticisms.  

17.	The result is easy to see and has been dramatic.  I pointed out to Counsel that in the last 12 months, 2084 appeals had been received of which 1354 had been disposed of. The number of cases which was stayed amounted to 222.  A stay occurs, when, generally speaking, either on the sift, or on an application, or at a preliminary hearing a remission of an issues has been made to the Employment Tribunal to give a decision, or to give reasons or both. Not all of those 222 stays are for that purpose but a good many of them are. A substantial minority of sift orders outside of this 222 include an order for remission without a corresponding stay. Often they result in the disposal of the case or of a particular issue; usually they lead to clarification of the issues on appeal.  It is, therefore, a step which is in an very real sense, part of the disposal of the appeal as the President noted in Burns

“Employment Tribunal appreciate this power which is most obviously used where there has been a simple promission to record a decision.”

18.	It must be noted that there is no general invitation to revisit the reasoning to add to or adulterate the findings which are made.  It is simply to provide a decision or reasons where none has been given.

19.	I will follow these recent decisions of the EAT because I consider them to be correct in law.  They are sensible and they reflect a realistic change of policy within the EAT corresponding to the spirit of the Practice Direction which I am satisfied is in accordance with the law and with the recognition that a decision should be final when made by an Employment Tribunal, subject only to review or appeal, and subject to it disposing with reasons of all issues before it.

20.	In this case, therefore, the decision to refer the matter to the Chairman was made bearing in mind that the reality of this case is that if agreement cannot be made in the terms which were suggested by Mr Basu and there is a full hearing of his appeal, the best he can do is have a remission.  It may well be that the matter can be simply resolved by the Chairman.  The order I made presupposes, as Mr Basu submits, that there is a decision to be recorded and reasons for it.  Whether the Chairman decides to recall Members or not is a matter for him for he will have a note of the submissions and a note of the evidence and a note of the reasons which he has given and a note of the discussion with members.

21.	At the PH, we inferred that the decision of the Tribunal was to award Mr Guest compensation on the basis that he would “certainly have been employed by Islington in the post” concerned: see paragraph 6 (e)(ii) of the Notice of Appeal.  This is a verval way of describing a 100% chance. 

22.	There is no doubt that the decision and reasons sought were those of the Tribunal.  The order is directed to the Chairman who alone is required by statute to record the decision and reasons and sign them and that is what he was invited to do. Since I know that he is to do that at the invitation which I have given, Mr Basu’s point about what would happen if he declined my invitation, does not arise.  Whether we have power to direct at this stage may be a different matter but at the moment I understand that we are awaiting the Chairman’s response which will be in terms of the request as I understand it.

23.	The alternative is very inconvenient.  Although I have proudly spoken of the reduction in the delays for hearing cases, it may well be that by that time a full hearing of this case reaches judgment in the EAT, the anniversary of the hearing in the ET will have been reached.  However, in respect of the order I made, only 4 months passed from the Chairman’s signing of the reasons and one can assume that his understanding of the reasons of the Tribunal would be that much fresher.

24.	In my judgment, therefore, the power does reside in the EAT to make the order.  However, there is substance in the criticism of the drafting of the order, and, I will therefore re-draft the order, and discuss with Counsel the precise form of the order I make today.  I have in mind to make the order as follows:-

“The Employment Tribunal Chairman be invited to record the Employment Tribunal’s reasons for assessing the applicant’s compensation as if he would certainly have been employed by the respondents in the post concerned.”

25.	That reflects the Notice of Appeal in terms and involves what is the practical conclusion of the Tribunal’s reasoning which is that there should be no reduction by reference to the loss of a chance in his compensation.  I accept that the terminology of 100% compensation, which I was seduced into incorporating by the Law Centre’s letter, is more apt for an assessment of unfair dismissal compensation under Polkey and for matters of contribution which arise in unfair dismissal and not in race discrimination.  I do not think that there could be any misunderstanding, but in order to deal with that, I will effect the changes in the order which I have suggested.

26.	I would very much like to thank again Counsel for their help today. I have granted the application for review.  I reviewed the case.  I have changed the terms of the order.  I propose to issue a new order. I do not need to put in liberty to apply in because Counsel  are both here but I will change the nature of the first ground.

27.	An application has been made for permission to appeal to the Court of Appeal against my decision.  My attention has been drawn in this application to the judgment of the House of Lords in Leverton v Clwyd [1989] ICR 33. I referred in Prebon to Leverton in the Court of Appeal (see paragraph 21 in Prebon) and, Mr Basu rightly cites the observation by Lord Bridge, in the report [1989] ICR 33 at page 65, where there is doubt as to the legitimacy of attaching significance to a Chairman’s post-decision letter.  In my judgment, the circumstances in Leverton were different from those in the present case.  There is an open application here and the order I made was specifically directed to one matter and has now been the subject of oral and written argument by both Counsel on the text and on the principle. For the reasons which I gave in Prebon relating to Leverton, I do not consider that there is a reasonable prospect of success in Mr Basu’s application and I am concerned that the apparently sensible approach adopted as a matter of practice for 18 months by the EAT should be maintained for the easy and just disposal of the large number of cases waiting to be heard by the EAT.  This was a proper application to make but Mr Basu will have to go to the Court of Appeal for permission.