Appeal No. EAT/506/90

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

		At the Tribunal
		On 28th February 1992

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MR J P M BELL CBE	

MR J RAFTER	APPELLANT

LUCAS YUASA BATTERIES LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR R DE MELLO
(Of Counsel)
Rust Mckie & Co
Pitman Buildings
161 Corporation Street
Birmingham
B46 PT

For the Respondents	MR C JEANS
(Of Counsel)
Engineering Employers'  Federation
Broadway House
Tothill Street
London
SW1H 9NQ

	MR JUSTICE WOOD (PRESIDENT):   An Industrial Tribunal sitting at Birmingham on the 1st and 2nd May 1990 under the Chairmanship of Mr Haslam heard applications by three Applicants Mr Hyland, Mr Thompson and Mr Rafter who alleged that they had been unfairly dismissed by their employers Lucas Yuasa Batteries Ltd.

	At the end of the Decision short summary reasons were given which were followed ultimately by full reasons which were promulgated on the 7th August 1990.  

	The Notice of Appeal was filed with this Court on the 13th September 1990 and the grounds of Appeal there set out were that "no such person acting judicially or properly instructed could have come to the determination which the Tribunal did and/or that the Decision was perverse."  There are then set out various small points.

	The matter came before a Division of this Court presided over by Sir David Croom-Johnson on the 18th October 1991 as a preliminary hearing.  By our Practice Directions on preliminary hearings it says:
"6(b)The Respondent will be given notice of the hearing but since it will be limited to the preliminary point he will not be required to attend the hearing or permitted to take part in it."

In fact, on this occasion solicitors of the Respondents did attend the hearing but of course they had no right to take part in it.  At that hearing points were sought to be taken by Mr De Mello for the Applicant which were additional to the original notice of appeal, and this Court took the view that those further points should be put in an amended notice of appeal so as to make them quite clear.  It also indicated, so we are told by Mr Jeans through his instructing solicitors, that the Respondent should be enabled to be represented or to be heard if they so wished.

	The amended Notice of Appeal was dated 4th November 1991, in fact I think there was no leave to amend, the Notice of Appeal was expanded and explained.  That Notice of Appeal, the amended one of the 4th November, did not reach the employers' Solicitors until mid January and by a letter of the 23rd January the Solicitors wrote to this Court explaining that they objected to the second Notice of Appeal.  They set out the position, and asked that the explanation which they were putting forward should be put before this Tribunal at the adjourned hearing of the Notice of Appeal. 

	That adjourned hearing came before a Division presided over by myself with Mr Bell and Mr Lewis as the Members, on the 27th January 1992.  We heard Mr De Mello and on that occasion, took the view that there might be something to be argued.  The effective date of termination in the additional grounds of appeal was put as the 7th December 1989 whereas it was alleged that the Tribunal erred in treating the effective date as the 13th June 1989 and a point was raised also under the provisions of Section 140(a) of the Employment Protection (Consolidation) Act 1978 indicating that some part of an agreement which had been reached between the parties to allow the dismissal to take place, or the effective date of dismissal to be delayed for some months, was void.

	As a result of that we made an Order that the hearing should be a full hearing and giving formal leave to amend the Notice of Appeal which had been prepared at the instigation of Sir David Croom-Johnson.  Now a number of things seem, unhappily, to have occurred.  First of all it is clear that in the Order of 18th October 1991 there is no mention of the indication by Sir David Croom-Johnson that the Respondents should be allowed to comment or to appear as the case may be, and of course that Order was a perfectly proper Order despite the Practice Direction because the Practice Direction has no effect in law it is only a Direction for the assistance of practitioners.  Secondly, the letter of the 23rd January 1992 was not placed before the Division of this Court over which I was presiding and therefore we were quite unaware of those points.

	Mr Jeans today, asks us to review the preliminary hearing and to dismiss the appeal.  We sit as a two Member Court because Mr Lewis, is unfortunately for personal reasons unable to sit, and I have assumed without actually having asked it, that both sides have consented to that course being taken.  I see no dissent.

	Mr De Mello, as a first point argues, that we have no power to review the Decision, that the only course open to the employers is to go by way of appeal to the Court of Appeal and of course they are well out of time for that, they would need leave.  He argues first of all that Rule 26 of the Employment Appeal Tribunal Rules does not allow us to review the matter.  That sub-rule reads:
"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)..........

(c)the interests of justice require such review."

	It is argued that when one looks at Rule 10 of the Industrial Tribunal Rules which were dated 1985 as opposed to the Employment Appeal Tribunal Rules which are 1980, there is an expansion of that last sub-paragraph and therefore the expanded terms in Rule 10 of the Industrial Tribunal Rules were not in the mind of those drafting the EAT Rules.  We respectfully disagree with that, the wording is perfectly clear and in this case it seems to us that there is an argument, that the Order of the 18th October 1991 was wrongly made and no doubt if Sir David had himself seen it he might well have corrected it because it gives no indication there of what we accept, namely that the Respondent should have an opportunity to be heard on any subsequent preliminary hearing.  We therefore reject the submission that we have no jurisdiction to conduct this review and the review is of our Order of the 27th January of this year.  On that review of course we are entitled to and should re-read the whole papers and decide whether there is any properly arguable point to go to a full hearing.

	On that occasion we did not have before us the letter, including the arguments of the Respondents' Solicitors and hence we did not have before us the arguments presented to us today by Mr Jeans.  Perhaps more importantly we did not have the Summary Reasons given by the learned Chairman of the Industrial Tribunal.  

	The facts of the case can be stated really quite shortly.  The Applicants had attended a shop stewards' meeting on Wednesday 7th June 1989 and after that meeting the three Applicants decided to go to a local public house.  They were away far longer than their lunch hour and acted thoroughly irresponsibly, drank a great deal and did not come back to work at all.  That was a gross breach of their duties and it was obviously conduct which merited dismissal.  Mr Amarilli made investigations on the 8th June and there were further investigations and a disciplinary hearing.  At the disciplinary hearing there was a decision to dismiss;  there was an appeal;  the appeal was rejected and they were sent a letter of the 13th June dismissing them instantly.  Then there were procedural stages, which I think means it goes higher in the trade union to the local conference which took place on the 23rd June 1989;  management was urged to reverse its decision to dismiss, but were unmoved.  The members of the trade union had already voted in favour of strike action concerning these dismissals.  There was therefore, the clearest possible gross misconduct and a threat of strike action because shop stewards were being disciplined and properly disciplined.

	In order to reach a half way decision between two extremes management agreed that the Applicants should have a further six months pay, that they need not work those six months and that they had to go by the 7th December.  By the 7th December they went and that was the effective date of termination.  It was a majority Decision of the Tribunal, the minority Member felt that the decision to dismiss was not within the band of a reasonable employer in the circumstances, the majority took a contrary view and with respect to the minority Member it seems to this Tribunal the clearest possible case where dismissal was merited.

	Having heard the matter re-argued before us now it is clear first, that the first ground on the additional grounds of appeal, namely that the Tribunal should have found the effective date of termination to be the 7th December 1989 is ill founded because it is clear on the summary Reasons that that was clearly found.

	The next point taken is that the agreement which was reached under threat of strike to allow the Applicants to remain on the payroll from June until December 1989 was void because it was in breach of Section 140 of the 1978 Act and therefore, if one looks at careful construction of the 1978 Act the reason for the dismissal must be existing at the time of the date of termination and therefore in effect that the conduct of June is not effective to be the reason for the dismissal, the effective date of termination being on the 7th December 1989.  That point, as Mr Jeans now effectively points out to us, is not a point which goes to jurisdiction.  He referred us helpfully, to the recent case of Barber v. Thames Television plc [1991] ICR 253 a Decision of this Court presided over by Mr Justice Knox. We do not need to refer to the facts of that case but it is quite clear that this is now the leading authority where questions of jurisdiction which had not been raised in the Court below are sought to be raised in this Court.  The holding in paragraph 2 of the headnote reads:
"where a party to an appeal contended that by calling further evidence it could be shown that the applicant's case fell outside the industrial tribunal's jurisdiction, the appeal tribunal had to decide in each case whether on balance justice required that the new point should be heard;  that if it appeared on existing evidence that the decision appealed from was a nullity that would be an overwhelming consideration, but where what was relied on was a chance of establishing a lack of jurisdiction by calling fresh evidence which had always been available the position was less straightforward; that although the issue whether there was a normal retiring age was a matter going to jurisdiction the appeal tribunal did not consider that it would be just for the employers to be permitted to try to persuade the industrial tribunal that the employee was disqualified by section 64(1)(b) of the Act by advancing evidence which skilled advisers had chosen not to adduce before the industrial tribunal; and that, therefore, the application for leave to amend the respondent's notice would be refused."

	Looking at Section 140 it would seem to make the decision or the agreement of June 1989 void but it does not go to jurisdiction.  That point was not taken in front of the Industrial Tribunal, it could very well have been taken.  The Applicants were represented by a District Officer of the Transport & General Workers' Union, who was an official, obviously with experience and of standing and had there been anything in that point it would have been taken.  

	It follows therefore, that the point sought to be raised now on additional grounds of appeal for which we gave leave to amend on the 27th January 1992 does not raise a point which was raised before the Industrial Tribunal, it does not go to jurisdiction and the point of the effective date of termination having now been decided as the 7th December, it seemed to us on reviewing this matter that in the interests of this case two things may have happened; perhaps there was an error in the way the Order of the 18th October was drawn up and it is understandable that it is clear that we must now look at our procedure for preliminary hearing in the light of this case.  Secondly that justice requires in this case that we review the matter and that having heard the matter argued again there is no merit in this appeal it is contrary to the merits on the whole of the facts and the point is sought to be taken and the only point that could be taken, which was not taken before the Industrial Tribunal therefore in the circumstances we dismiss this appeal at this juncture.