Appeal No. EAT/383/91

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 23 July 1991

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MR D G DAVIES

	MISS C HOLROYD

INITIAL TEXTILE SERVICES	APPELLANTS

MR R RENDELL	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR J BACON
(OF COUNSEL)
Messrs Broughton Ross
Solicitors
5th Floor
Africa House
64/78 Kingsway
LONDON
WC2B 6BT

For the Respondent	MS T GILL
(OF COUNSEL)
Messrs Pattinson & Brewer
Solicitors
30 Great James Street
LONDON WC1N 3HA

	MR JUSTICE WOOD (PRESIDENT):  This is an Interlocutory Appeal by Initial Textile Services from a Decision of the Industrial Tribunal which is dated 18 July 1991, whereby under the provisions of Section 77 and 78 of the Employment Protection (Consolidation) Act 1978, they made an interim award to the Applicant, Mr Rendell, who was alleging unfair dismissal and was making his allegation on the basis that he had been involved in trade union activity;  he therefore alleges it was unfair.

	The Originating Application was dated the 11th March 1991 and the Notice of Appearance is dated 9th April;  there was therefore a gap of some weeks and in the light of the allegation made in the Originating Application it was clear that a Hearing was due under Section 77 for interim relief.

	Due to an error in the "streaming" of the case, in fact,  the matter was not heard until 10th July 1991.  The first comment on that is that in fact it was Mr Foskett, an officer of the Transport & General Workers' Union, who drew the attention of the Industrial Tribunal to the gap.  Perhaps he wanted to seek for an interim award of some money for his Member, Mr Rendell, but it is also to be noted that where a clear allegation is made in the Originating Application that that is the basis of the allegation, then it is also for the Respondent employers to ensure that any Hearing is brought on quickly.  Our reason for saying that is, of course, that as has happened in this case, if time runs on then the employer finds itself with a substantial lump-sum payment to be made within a fairly short time and that money, together with any other payment made pursuant to the Order in 1978, is, as is conceded by both sides before us, irrecoverable.

	So in the present case, the matter was heard by the Tribunal on that 10th July and the Tribunal reached the Decision that there was a likelihood that the Applicant would succeed and would succeed on that particular ground under Section 58;  it made this interim Order.  The interim Order was that a sum of £3,605 should be paid on or before the 25th July, that is in two days time, and that the weekly payment should be such sum as was net after the calculation from a gross sum of £217 per week.

	The employers appealed against that Order on two grounds.  The first is that they submit that the Decision was perverse and there was no evidence on which the Tribunal could reach its conclusion.  Secondly, they say that it is only two days before the money is due and that if paid it is irrecoverable if they succeed eventually.  Thirdly, but in our view far more worrying is the explanation of what occurred at the start of the Hearing before the Industrial Tribunal.  It is a little difficult to understand precisely what happened but it seems that Mr Foskett, who was representing the Applicant, and he is the Officer of the Transport & General Workers' Union, handed in a letter which was a "without prejudice" letter passing between the parties, attached to which were some statements from witnesses.  That initially, of course, should have been seized upon by Counsel appearing for the Company and if objection was going to be raised, should have been raised before the document ever left Mr Foskett's hand, but apparently Counsel waived the privilege on the basis that the documents and the letter would be before the Industrial Tribunal, and presumably on that basis he decided not to call any evidence.  The Tribunal say, in the first paragraph of the Full Reasons:
"We declined to receive proofs of evidence from persons who were present but were not called."

and any proofs of evidence were in that letter that was handed in.  The only purpose we can see in Counsel waiving the privilege was so that the documents should be before the Tribunal and therefore there is an unfortunate problem that could well be examined by this Court.  However, the situation is this;  it would take some months before the appeal is heard;  it is clearly desirable that this matter should be heard as soon as possible.

	We have grave doubts as to whether we have power to stay an Order pending an appeal because until one has heard the appeal it is not sufficiently clear that there is a valid ground for allowing that appeal.  Moreover, it is quite clear when one looks at Section 77 and 78 that these are intended by the legislature to be stringent provisions.  They provide that once the Tribunal has concluded, in accordance with authority, that the Applicant is likely, in the wording of the reasoning "that at the Full Hearing the Tribunal would find he was dismissed for trade union reasons";  then the employer has the opportunity of offering to re-engage or re-instate and if he does not then under sub-section 9 of Section 77 there is an obligation on Tribunal to make an Order.  That Order is in the terms provided by Section 78 which includes a lump-sum payment for the wages that should have been earned during the period up to the Hearing and a prospective Order for the future. Those are intended to be stringent terms because this is part of the protection of the work of shop stewards in the trade union movement and is part of the balance in the statutory provisions.  In the present case the lump-sum is so large because steps were not taken to bring the interim application on quickly.  There was an error on the part of the Tribunal but there was also an error on the part of the Respondent employers for not keeping an eye on the timetable.

	Now, what is the appropriate step?  We can find no real error here that is so obvious that we can say that the appeal would inevitably succeed.  There is clearly something to be investigated but we put it no higher than that.  It is clearly desirable that the matter should be heard as soon as possible.  

	It may be that the effect of these provisions can be examined afresh when those who deal with legislative amendment are re-considering the matter, because it is abundantly clear that money paid under the provisions will be irrecoverable and there is no provision for paying it into a fund or into a Court;  there is no limit of time for the period which is relevant and there are clearly details of the relevant balance here which could well be examined.  However, so far as the present Appeal is concerned, it is our view that it fails.  We ask the learned Regional Chairman to direct that the full hearing should be heard as a matter of extreme urgency and Ms Gill has indicated that of course she agrees with that as a proposition.

	We would add this,  that in the light of the unfortunate misunderstanding that may have taken place we would recommend that it be heard by a differently constituted tribunal and that this second tribunal has no knowledge of these proceedings at all either the interim relief or the EAT proceedings and starts completely afresh in the circumstances.  We feel that that is the fairest course;  neither they or the chairman who is going to sit should see anything other than the pleadings and should start afresh in the usual way.

	In those circumstances we would merely say appeal dismissed, but those recommendations we hope are notified by Counsel and those instructing them if they would kindly pass them on to the Regional Chairman.