Appeal No. UKEAT/0230/12/KN

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 21 February 2013

Before
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
(SITTING ALONE)

LTRS ESTATES LTD T/A ORWELLS	APPELLANT

MR M HAMILTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR BERNARD WATSON
(Representative)
Peninsula Business Services Ltd
The Peninsula
2 Cheetham Hill Road
Manchester
M4 4FB	
For the Respondent	MR ANDREW WATSON
(Representative)
Free Representation Unit
Ground Floor
60 Grays Inn Road
London
WC1X 8LU	

SUMMARY
PRACTICE AND PROCEDURE – Disposal of appeal including remission

A division of the Employment Appeal Tribunal allowed an appeal on the two points an Employment Tribunal had determined in favour of an employee.  The ET had also decided three points in favour of the employer, but these decisions were not appealed.  The remission ordered by the EAT was for a “complete rehearing” of the matter.  An ET regarded this as meaning all 5 points.  Held: on facts of this case, having regard to the need for finality of litigation and the context within which the EAT decision was reached, the remission was for a complete rehearing of “the matter” which was a reference to the matter which had been before the EAT, and not to the wider issues which had been conclusively determined by the first ET.

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
Introduction
1.	This appeal against a case management decision of Employment Judge Salter sitting at Reading of 19 November 2012 highlights the importance of the parties being clear before they leave the Appeal Tribunal as to precisely what is the scope of any remission which has been ordered especially where judgment is given extempore and where there is any realistic scope for misunderstanding.

The history
2.	The Claimant employee was employed as a restaurant manager by the Respondent employer from May 2010 at a restaurant in Henley.  He signed a written contract setting out detailed terms and incorporating an employee handbook on 28 December 2010, some seven months later.  The contract provided that he would work a 48 hour week, usually spread over five days, though there was some contemplation that he might work longer hours if needed.

3.	The handbook set out detailed provisions entitling an employee to time off in lieu, in particular where bank holidays fell on the usual day off which, being a restaurant, was a Monday.  The notice period provided for by the signed contract was three months in writing. 

4.	In March 2011 the Claimant gave notice.  Letters followed in which he asserted that he had worked more than five days a week, essentially working an additional half day each week, and he wished to be reimbursed for that.  He sought to be compensated for overtime which he had worked, for notice pay which he thought was due and to be paid a share of the gratuities for the weeks of at least his notice period.  The matter was summed up in the ET1 at paragraph 6.1 in these terms:

“I want my three months notice, overtime for working conservatively 80 hours a week, time owed for off days work and 43 weeks of half days owed as per agreed.  All I want is what is owed and fair.  I gave a great deal to the business and I am being made to feel that I did nothing.  I am paid for my time, it is only fair it is to be recognised.”

5.	On 19 August Employment Judge Warren sat to hear the claim.  In a reserved judgment he dismissed the claim in respect of notice pay, he dismissed the claim in respect of gratuities during the notice period and he dismissed the claim in respect of overtime.  But he allowed the claims in respect of six bank holidays and one Monday worked and a claim which by then was for 38 half days.

6.	The employer appealed those latter two findings.  The Claimant did not appeal the three findings adverse to him.  The appeal in respect of bank holidays and half days came before HHJ Hand QC at this Tribunal on 9 October 2012.  He had before him advocates who agreed that the Tribunal’s decision, as it was, was problematic.  He acknowledged in the course of his judgment that there had been no clear finding as to what the contact comprised at its outset in May 2010.  There was a very imperfect exploration of what the provision of contractual terms in December amounted to.  No conclusions had been drawn as to the terms of the contract.  He said under the heading, “Disposal” at paragraph 20 as follows:

“In my judgment this appeal should be allowed because the Employment Judge has neither set out completely the terms of the contract, the basis on which he finds the terms of the contract nor how the contract was operated.  His Judgment contains elements of all three but the picture presented is incomplete and imperfect.  For those reasons this appeal will be allowed and the matter will be remitted for a rehearing, the case will start afresh.  The parties will be at liberty to call what evidence they like and to make whatever submissions they wish both as to fact and law.”

7.	He then considered whether it should be a fresh or the same Tribunal and at paragraph 21 said this:

“This is, in my judgment, a totally flawed decision and would be a case in which a remission to the same Tribunal would allow for what Burton J called so aptly a second bite of the cherry.  The Tribunal has already made up its mind as to this and there may be a real risk of an appearance of pre-judgement or bias if the Tribunal is asked to do this all over again.  Accordingly, this matter will be remitted for a complete rehearing to a differently constituted Tribunal …”

8.	At the start of the judgment there is a summary.  The summary forms no part formally of the judgment but as a matter of practice is compiled by the Judge having reviewed the words which he used in Court to express his reasoning.  There, the Judge noted that the case had been, “Remitted for a complete rehearing before a different Employment Judge”.  

9.	In accordance with that order, it was thought the matter then came before Judge Salter at Reading on 19 November.  He determined that the issues were all the issues which had been raised by the ET1 including those which had been resolved by Judge Warren against the Claimant and had not been subject to an appeal by the Claimant to the Appeal Tribunal.  In his reasons he said this:

“1	This is a case management discussion following the Judgment of the Employment Appeal Tribunal allowing an appeal by the Respondent against the Judgment of Employment Judge Warren.  In the summary of the EAT Judgment it was stated; “Remitted for a complete rehearing before a different Employment Judge”.  In the Judgment itself the EAT stated; “The case will start afresh, the parties will be at liberty to call what evidence they like and make whatever submissions they wish both as to fact and law”
2	It was noted that there had been no appeal by the Claimant.  It was clear from the EAT Judgment that this case was to be reheard in its entirety.  As a consequence, the above schedule of issues takes into account the original claims…”

10.	A dispute arose whether the matter which had in terms been remitted by HHJ Hand to the Tribunal meant the entirety of the original case or only those matters which had been subject to the appeal; that is the matter as it was before the Appeal Tribunal.  If it was the former then it would be open to the Claimant to raise his claim again in respect of a failure to receive notice pay, the non payment of gratuities and the failure to pay for overtime he had worked. 

11.	The representative at the case management discussion on behalf of the employer was not Mr Bernard Watson, who had appeared before the Employment Appeal Tribunal.  When, no doubt, he had reported to Mr Bernard Watson, the latter sought to raise with this Tribunal whether it would be prepared to “clarify the scope of the remission” which had been ordered by Judge Hand; that was on 18 December.  It was therefore more than a month after the case management discussion had been heard that the die had been cast.  In effect Mr Watson was seeking to avoid the effects of an order, legitimate on the face of it unless appealed, without appealing the order itself. 

12.	The Registrar of the Appeal Tribunal took the view that this could not be a review of this Tribunal’s decision.  A decision had been made by the Employment Tribunal which must stand unless it was in error of law.

The legal landscape
13.	The Employment Appeal Tribunal is entitled by section 35 of the Employment Tribunals Act 1996 to remit a case to an Employment Tribunal.  It is the remission which gives the Employment Tribunal its jurisdiction.  A Tribunal which goes outside the scope of the remission is in error of law.  It may well be, and probably is, the case that Judge Salter did not have a clear dispute raised between the parties before him as to the scope of the remission, but in a case in which the issue is whether he had jurisdiction to make the order he did the absence of argument is beside the point, though it is unfortunate.  If it had emerged clearly before him that there was a dispute about the scope of remission there is no doubt that the appropriate course, providing that the argument was seen to be a genuine one, would have been to adjourn the CMD so that this Tribunal could clarify what it meant and which party had misinterpreted what it had said, so that Employment Judge Salter could proceed on a settled basis.

14.	As it happens, in this case I know what Judge Hand would have said had he been asked.  That is because with the consent of both parties before me I have spoken to Judge Hand to ask his own view as to what he had in mind in making the order that he did.  He had in mind remitting for complete rehearing the matter which had been in front of him; that is that those matters which were appealed against by the employer Respondent.  He did not consider that by using the words he did that he was remitting the whole of the case including those matters which had already been determined adversely to the Claimant.  It may well be that, as it seems to me, that the reasons for his emphasis upon a complete rehearing arose out of the fact that before this Tribunal Mr Andrew Watson, for the Claimant, had sought to formulate the Claimant’s lay arguments into propositions of law; that was not the way the case had been put before the Employment Tribunal.  He had invited Judge Hand to dismiss the appeal upon the basis of these untested arguments.  Judge Hand wished to make it clear that such were the flaws as he saw them in the judgment that it would be entirely open to the Claimant to make those arguments before a fresh Tribunal.  That in context was the reason for his referring to there being a complete rehearing with the parties free to call such evidence as they wished on both sides and to raise such arguments as they thought appropriate on both sides.  He was not intending thereby to reopen matters which had been determined and in respect of which there was no appeal before him.

15.	This case, however, cannot be resolved simply upon knowledge of that which was within the mind of the decision maker.  The parties are entitled to conduct themselves upon the basis of decisions as they appear to be.  If this Tribunal had expressed itself in a way which did not convey the meaning which the Judge wished to convey, an Employment Tribunal would not be in error of law in regarding the order made as being that which it appeared to be.  Accordingly, though I record Judge Hand’s views, I do not regard myself as bound by them.  They are part of the history.  They do not influence me in making my decision, though I have to say the decision I have reached is entirely consistent with the views he sought to express.    

16.	The submissions made before me by Mr Bernard Watson emphasise that the Claimant had succeeded on two arguments alone.  There had been no counterclaim.  The Employment Tribunal’s ruling that the Claimant failed on his other arguments had not been subject to a cross appeal.  Though he did not contest the ability of the Appeal Tribunal to remit matters which had not been appealed (see the case of Irvine v Prestcold [1981] IRLR 281 CA, paragraph 17 in the Judgment of Fox LJ) he nonetheless argued that it was unusual for decided matters to be reopened by a remission.  He emphasised the importance of finality in litigation.

17.	In that light, he noted that in Church v West Lancashire NHS Trust Number Two [1988] IRLR 492 Morrison J as President had noted that subject to exceptions a litigant must in principle raise all relevant points at the trial of his complaint; see paragraph 18.  He sought to rely upon the observations made, albeit in argument and by the losing party, before the House of Lords in Johnson v Gore Wood & Co. [2002] 2 AC 1 to the effect that finality in litigation was important. 

18.	For the Claimant the argument was that there had been no error of law by the Tribunal.  It had correctly understood the scope of its remission for the reasons it gave.  The Claimant distinguished Church v West Lancashire; that was a case, Mr Rees argued, in which the Appeal Tribunal had reversed a finding of the Industrial Tribunal that the employee had been dismissed by reason of redundancy.  It did not allow the employer’s submission that the case should be remitted so that the Tribunal could consider whether the employee had been dismissed for some other reason, because that would permit the employer to argue a new case on the facts, which was inconsistent with a case previously and unsuccessfully argued.  In this case the Claimant had not sought to do anything of the sort; his case had remained the same but it had now been placed on a clear legal footing. 

19.	In oral argument he acknowledged that this approach had been taken in response to that which he understood Mr Bernard Watson to be advancing that he, the Claimant, would not be entitled to place his claim on a fresh and different legal footing.  Mr Bernard Watson made it clear he was not to be understood as submitting that, and I record it, for the benefit of the Tribunal, that is common ground.  Indeed this Tribunal endorses the agreement that, on the matters which are properly remitted, the Claimant is entitled to raise such arguments as he thinks proper, just as the Respondent is entitled, for its part, to raise such arguments in response as it thinks proper and neither is bound by the evidence or the argument advanced previously.

20.	That, however, does not resolve what I have to resolve here; whether there was a remission as ordered to the Tribunal of the whole of the case or a rehearing on all matters which had been appealed, but only those to this Tribunal.

Discussion
21.	There is, as Mr Andrew Watson for the Claimant acknowledged, a tension between two principles; one is the public policy that finality in litigation is desirable, the second is that in an individual case justice should be done.  As to the first principle there can be no doubt.  It was recognised repeatedly in the speech of Lord Bingham of Cornhill in Johnson v Gore Wood.  He cited, if citation were necessary, a number of authorities which touched upon the point; see for instance House of String Gardens Ltd v Waite [1991] 1 QB 241 referred to at pages 24 and 25 of the Appeal Cases Report in which Stewart-Smith LJ had said:

“Public policy requires that there should be an end of litigation and that a litigant should not vexed more than once in the same cause.”

22.	Again, in Barrow v Bankside Agency Ltd [1996] 1 WLR 257, referred to at page 27, the Court of Appeal said at 260:

“It is a rule of public policy based on the desirability in the general interest as well as that of the parties themselves that litigation should not drag on for ever and that a Defendant should not be oppressed by successive suits when one would do.”

23.	He, Lord Bingham (see page 31) recognised that it was public policy that there should be finality in litigation and a party should not be twice vexed in the same matter adding:

“This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation in the interest of the parties and the public as a whole.”

24.	In approaching the words of Judge Hand’s ruling, the Tribunal Judge had to consider what this Tribunal meant by saying that, “this matter” will be remitted for a complete rehearing.  In context those words were apt to describe the dispute before the Judge; the focus in an appeal is upon the subject matter of the appeal.  It is always more likely that that will be what a Judge refers to as “this matter” rather than his departing from the focus which he has to have in order to take a wider view of the underlying case.  This will be so unless there are words which indicate that the latter is what he had in mind.  The more natural reading to my mind here would be the former. 

25.	Secondly, a Judge will not, it seems to me, lightly depart from the general principle that litigation should be final.  Where a matter is not appealed which could have been appealed to this Tribunal then although this Tribunal may theoretically have the right to remit the whole of the case to a Tribunal, and not just the matters which have formed the subject of appeal to it, it will be an unusual case in which that will occur.  Otherwise the important principle of finality in litigation, and of promoting the efficiency and economy of hearings in general would be compromised.  Thus the natural bias in any consideration of what a Judge means by remission must be to look at its narrower rather than its wider scope unless the context of the words require otherwise.  

26.	In the case of Irvine v Prestcold there was a very good reason why the Tribunal might have remitted for further consideration a matter which had not formed part of the appeal before it.  The Tribunal had made a recommendation that the claimant should receive a higher salary than her employer had agreed.  It had set out her loss of wages arising out of discrimination against her - she had not been given a promoted post at a higher salary – as amounting to a sum equivalent to that higher salary but only for a period of four months.  It was entirely understandable that the reasoning might well have been that the recommendation to pay her a higher salary would be honoured after 4 months had passed, and in that way the claimant would be no worse off.  Once the appeal had been allowed on the basis that there was no power to make a recommendation in respect of wages, it would follow that the calculation of wage loss had to be reconsidered, notwithstanding that there had been no formal appeal against that finding.  The two were so inextricably linked that the scope of the remission could be and was justified.  That is far from this case.

27.	The issues in two respects at any rate are clearly distinct; those of notice pay and gratuities.  Mr Andrew Watson, in an alternative submission argues that the issue of overtime payments should have been remitted too.  I do not accept this.  The decision in respect of overtime is made at paragraph 22.5 of Judge Warren’s written reasons:

“The Claimant’s contract provides that he is not required to work more than 48 hours per week as indeed does the Working Time Directive.  The Claimant had not contracted out of it.  The Claimant was not obliged to work those extra hours, if he did so.  In any event, he has not provided a precise calculation of the extra hours worked so that claim cannot succeed and is dismissed.” 

28.	There were thus two reasons for dismissing his claim.  First, the Claimant was not obliged to work the extra hours; therefore he volunteered to do so.  Secondly, there was insufficient evidence to substantiate the claim.  The basis for that decision is very different from the decision in respect of the bank holidays and half days.  The decision at 22.5 was not appealed by the Claimant.  The reasoning I have set out and accepted above leads me to the same conclusion.  The Judge in remitting the case to the Tribunal did not intend, nor should the Tribunal have regarded him as intending, to remit that unappealed issue to it.

29.	In this case, I should add, the appeal to justice which succeeded in Irvine v Prestcold does not get the Claimant home.  That is because there is no clear link between the reasoning by which Judge Warren rejected the claims in respect of notice period and gratuities and overtime and that in respect of the bank holidays and half days.  

Final observations
30.	I have considerable sympathy for the position in which the Employment Judge here was placed.  He did not have the benefit of the parties suggesting that there was doubt about the order, or that he should make reference first to this Tribunal.  The words used in the judgment by HHJ Hand QC were clear and emphatic.  It was not difficult to understand them as intending more than they said.  However, if regard had been had to the particular context, it is plain to me they did not intend to go so far as to reopen decided issues between the parties.  Indeed, it would be unfortunate, as I have observed, if that had been the case.

Conclusion
31.	In what I hope will be an unusual case, this case is a salutary reminder to anyone appearing before this Tribunal: if there is any real possibility of misunderstanding of what has been said by a Judge as to the scope of remission, that should be clarified before the parties leave the Tribunal especially where the judgment is given extempore, and within a short time after it is delivered if it delivered in writing by handing down.  The scope of the remission here is limited to those issues which were under appeal before HHJ Hand, and no others.

32.	With that clarification of the jurisdiction of the Tribunal, this is appeal is allowed and the case remitted to Judge Salter and the Tribunal for rehearing in accordance with the order of Judge Hand as clarified by these reasons.