Appeal No. EAT/450/90

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

		At the Tribunal
		On 1 May 1991

	Before

	MR JUSTICE WOOD MC (P)

	MR J P M BELL CBE

	MRS M L BOYLE

G JENKINS			APPELLANT

P & O EUROPEAN FERRIES (DOVER) LTD			RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	(REVIEW HEARING)

Revised

	APPEARANCES

For the Appellant
MR C P ERVING (Solicitor)
Steggles Palmer
2 Bedford Row
LONDON
WC1R 4BU

For the Respondents
MR A HILLIER
(of Counsel)
Hill Taylor Dickinson
Irongate House
Duke's Place
LONDON
EC3A 7LP

	MR JUSTICE WOOD (PRESIDENT):  By an Originating Application dated 27 April 1988, the Applicant Mr Jenkins, alleged that he had been unfairly dismissed by his employers P & O European Ferries (Dover) Ltd.  

	His case came to be heard before an Industrial Tribunal sitting at Ashford on Thursday 5 July 1990, and the issue raised before that Industrial Tribunal was under the provisions of Section 62 of the Employment Protection (Consolidation) Act 1978.  The provisions of that Section, so far as they are relevant, read:
Section 62(1)

"The provisions of this section shall have effect in relation to an employee (the 'complainant') who claims that he has been unfairly dismissed by his employer where at the date of dismissal -

(b)the complainant was taking part in a strike or other industrial action.

The remainder of the Section is not relevant for this case.

	That was the issue, whether at the date of dismissal the complainant was taking part in a strike or other industrial action.  

	The Applicant represented himself, the Company was represented by a Solicitor.  The Decision of the Industrial Tribunal dated 10 July 1990 and sent to the parties on the 11 July 1990, indicated that there was no jurisdiction to hear the complaint on the grounds that the provisions of Section 62 applied.

	Mr Jenkins appealed to this Tribunal.  His Notice of Appeal was drafted by solicitors whom he had consulted in the interim and the basis of the Appeal was really a criticism on the findings of fact and the application of the findings of fact.  Also there was criticism of the conduct of the hearing before the Industrial Tribunal.

	The matter came before us on the 6 February of this year, sitting as we are constituted today.  The matter was heard and judgment given on that day.  The judgment did not contain, as indeed it was not alleged, any criticism of the way in which the Industrial Tribunal had directed itself in law.

	As a result of further deliberations on my part I was not satisfied that we had reached a correct conclusion that there was no ground for criticising the direction in law given to itself by that Industrial Tribunal; as a result I directed that this matter should come back before a division of this Court similarly constituted and that direction was by letter of 27 February 1991, my decision to do so therefore was likely to have been a day or two earlier.

	The very similar, if not identical issue on the construction of Section 62 came before this Court on a hearing before Mr Justice Knox on the 12 February 1991 and he delivered the judgment of that division of the Court on the 6 March 1991.  That judgment was in the case of Manifold Industries Ltd v. G E Sims & Others,  and in that judgment the issue of the proper construction of Section 62 and in particular the way in which this Industrial Tribunal at Ashford had directed themselves was highly relevant.  The Decision of that division of this Court was that the words of the Section must be looked at objectively.  That is, find the facts;  look back;  and looking at it objectively decide whether the Applicant, in this case Mr Jenkins, was at the time of his dismissal on strike.

	The decision to bring the matter back for review therefore brings us to the first matter which we must decide today, that is whether or not to review the Appeal and to examine the legal basis upon which the Industrial Tribunal reached its Decision.  Our powers are to be found under Rule 26 of the Employment Appeal Tribunal Rules of 1980 which reads in the first part:
"(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 review."

It is under (c) that we now consider the matter.  

	The direction which the Industrial Tribunal gave to themselves is to be found most succinctly in paragraph 20 of its Decision.  That paragraph reads:
"The provisions of section 62 require the Tribunal to look at the state of mind of the respondent when it dismisses the applicant.  If the respondent reasonably believed the applicant was on strike at the time of the dismissal, then section 62(2) of the Act prevents the Industrial Tribunal from determining whether the dismissal was fair or unfair.  It is not strictly relevant to determine whether or not the applicant was on strike or not, or whether he believed he was on strike or not.  The essential test is what the employer believed."

No authority is cited and there is no indication of authority in the Notes of Evidence, but it may be that the Industrial Tribunal had in mind an earlier Decisions of this Court in McKenzie v. Crosville Motor Services Ltd (1990) ICR 172.  That Decision was considered by Mr Justice Knox in the Manifold case and he referred back to other earlier Decisions of this Court.  The number of times that this Section has been considered by this Court is even more numerous than I had realised before today.  The cases go back to about 1981 or earlier and there are a great many of them.

	One of the matters that has emerged is the problem of applying the wording of the Section to a number of factual situations which may be anticipated to arise and a part of the problem facing employers in these situations were emphasised by Mr Justice Browne-Wilkinson, as he then was, as President of this Court, in Naylor v. Orton & Smith Ltd and Others (1983) ICR 665.

	In the case of McKenzie this Court sought to face up to some of the problems which undoubtedly were emphasised in the Naylor case and in so doing used wording which we are satisfied today, put a gloss on the actual wording of Section 62, and that gloss as indicated by Mr Justice Knox in Manifold Industries Ltd is unwarranted.  It follows therefore as indeed is now common ground between both parties appearing before us today that the proper approach to Section 62(1) is to look at the words of the Section, to look at the facts, both what the complainant did or omitted to do and to look at the whole picture, having found the facts and decide, "was he taking part in a strike or other industrial action?".  That is the objective approach, not the subjective approach.  It seems to us therefore that had we looked at the Decision of this Industrial Tribunal on the issue of whether or not it had directed itself correctly in law, the inevitable decision would have been that it did not.  Not only did it not but as was pointed out to us by Mr Erving in paragraph 20 the Tribunal does not even answer the question posed by Section 62 itself;  it does not decide whether in fact objectively the complainant was taking part in a strike or other industrial action, that is therefore an error;  the whole approach is flawed.

	Mr Hillier in his most persuasive submission takes a number of points.  First, he submits that this Court should not re-open this Appeal,  should not decide to carry out the review, on two grounds, first of all the power should be applied sparingly;  secondly, only where there is a patent injustice.  Speaking from memory this is the first time that we have reviewed a Decision in the three and a half years that I have sat here.  It is not something which should be done save in exceptional circumstances, the dangerous comment always being that one is thereby sitting in appeal on one's own decision.  Secondly, the position here is quite clearly that had Mr Jenkins been represented, we feel sure that the criticism would be made that this was a basic fundamental flaw in the direction given to it itself by the Industrial Tribunal.  Whether the injustice is to be looked at in the result or injustice is to be looked at in the way in which a decision is reached, it matters not, it seems to us fundamental that an injustice is suffered if there is a fundamental error of law in a decision.  We therefore have decided to re-examine the Appeal and we proceed to do so.  What has been said earlier in this judgment is still relevant to our consideration of the Appeal.

	The next point taken by Mr Hillier, indeed the second and third points is put like this;  this Tribunal had to examine a substantial number of documents, (we have a bundle of over 100 pages of exhibits on other matters and indeed in our Appeal bundle a great deal of statement and documentation so that on the whole we talking about a bundle of something like 130-140 pages);  it heard evidence from witnesses and had to examine a very detailed course of events.  Mr Hillier submits that when one looks at the findings of fact which were made there are certain fundamental findings and no amount of error in the direction of law can alter those findings of fact.  He submits therefore, that if this matter is remitted then it is inevitable that those findings of fact will be reached and it cannot be suggested that there is any real injustice to Mr Jenkins if this Court were to accept the findings of fact, apply the objective test and reach the inevitable conclusion.

	The view which we have reached after considerable discussion is that the error is in the error of approach to the facts and to the fact finding process throughout;  because of the direction given this Industrial Tribunal must have been looking at the story, the history, to use what phrase one will, through the eyes of the employer and not looking at it as it were from above to see what was happening and to find the facts on the objective view.  It seems to us therefore that it does not necessarily follow that the findings of fact will remain identical, although they may very well do so.  There is a great deal of documentary evidence to support the submissions being made by Mr Hillier and in taking that broad view of the situation we again feel that hearing this matter de novo we would have taken the view that the only appropriate course would be to order a re-hearing.   There may or there may not be a real injustice, but there is a risk that there may and Mr Jenkins is entitled to have his case heard before an Industrial Tribunal on the correct basis of a legal direction.

	We have picked out what we believed to be the salient direction, but the last point taken by Mr Hillier was that perhaps looking at all the cases, the direction given in certain other parts of the Industrial Tribunal's decision, and we have not neglected them, indicates that the Tribunal in fact were looking at this test objectively.  It may be that they did but the direction given in paragraph 20 is such a strong one that it would be wrong for us, in our judgment, to accept that there may have been a different approach despite what was said in paragraph 20.  This is the exercise of a discretion to review the matter, thereafter it is conceded that the direction of law was erroneous and we must therefore decide what is the fairest and most appropriate way of dealing with this matter.  We remind ourselves, as we have been reminded by others on so many occasions that issues of fact are for the Tribunal.  There are cases in which the findings of fact are so clear that this Court feels that it is able to reach a decision without further assistance from the Industrial Tribunal.

	In this case we have taken the view that justice requires the matter be re-heard.  The order therefore will be that the review is made, and on the review we decide that the Appeal should be allowed and the matter remitted.  There is only issue therefore remaining, that is whether the case should be heard by the same Tribunal or by a different Tribunal.  

	This is not a case in which we feel sufficiently strongly to indicate one way or another.  We have been asked in the past not to commit ourselves unless we really take a strong view about it because of the administrative problems facing regional chairmen.  We shall therefore leave this matter to a regional chairman;  we see no particular value in either particular course and it is a matter for him to use his discretion.  It may be that it is helpful for those who know the background to hear the case but that is a matter for him, we give no direction on it whatsoever.