Appeal No. EAT/1178/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 15th November 1995

	Before

	HIS HONOUR JUDGE BYRT Q.C.

	MR J R CROSBY

	MR P DAWSON OBE

J.D. COLE	APPELLANT

SAFETELL LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS S McKIE
(of Counsel)
Messrs Attridge
Solicitors
The Colleen Bawn
196 Southwark Park Road
Bermondsey
London SE16 3RP

For the Respondents	MR MEDLAM
(Representative)

	JUDGE BYRT Q.C.:	This is an appeal against the decision of the Industrial Tribunal made on 2nd November 1994 when sitting at Ashford in Kent. On that occasion it granted an application to review and then proceeded to review the decision it had given on 21st September 1994. 

	By his origination application Mr Cole claimed that he had been unfairly dismissed. His job was that of installing security systems for the benefit of financial institutions. The company's business had declined somewhat during 1993 and 1994, and so they decided there had to be a cut back on their overheads, and as a result of that there had to be certain redundancies.

	Along with others, Mr Cole was selected for redundancy. The company considered relocating him in another position and eventually came up with the answer that there was no alternative job available for him.

	The Tribunal on 21st September 1994 came to the conclusion that Mr Cole had been dismissed; that the reason for his dismissal was redundancy, and they accepted that his selection had been by means of the appropriate objective criteria, but they held that the dismissal had been unfair by reason of the fact that there had been no consultation with him prior to his dismissal. The company had advanced a reason as to why that they had not consulted him, but the Tribunal decided that that was not an acceptable reason. At the end of a long day, as the contents of the Extended Reasons made plain, the Tribunal assessed the claimant's compensation at the sum of £8,038.35, and did so on the basis that Mr Cole was entitled to compensation for his full loss. It failed, as it subsequently admitted, to assess that compensation on the proper basis, namely on the basis of an assessment of the value of the percentage chance of his remaining in employment if he had been consulted. 

	The very next day, on 22nd September 1994, the respondent's representative, a Mr Medlam, wrote to the Tribunal pointing out what he perceived to be the error, and asked for a review. Whether or not in fact, Mr Medlam was using the phrase in its technical sense does not seem to matter because the Tribunal interpreted his letter as an application for a review and it named the day, 2nd November 1994 as the date for a hearing of an application to that effect.

	On 2nd November 1994, they heard the application and granted it in order to afford the Tribunal the opportunity to correct what was, in effect, an error of law. They granted the application under the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, paragraph 11(1)(e) of the Schedule 1; that is they deemed the review was necessary in "the interests of justice".

	When the Tribunal conducted its review, it reassessed Mr Cole's entitlement and reduced their award to a sum which was marginally over £1,000. They reduced it by some 80%. However, Miss McKie who has argued the case for the Appellant says that the scope for a review under the paragraph 11(1)(e) has in fact been prescribed by authority and is very limited. These authorities emphasise the need for the Tribunal to proceed with caution in granting applications for review under this particular sub-paragraph. Miss McKie referred to the case Lindsay v Ironside Ray & Vials [1994] ICR 384 and in it referred to quotations from the case of Trimble v Supertravel Ltd [1982] ICR 440, at page 442. There Browne-Wilkinson J said as follows:

		"... We do not think that it is appropriate for an industrial tribunal to review their decision simply because it is said there was an error of law on its face. If the matter has been ventilated and properly argued, then errors of law of that kind fall to be corrected by this appeal tribunal. [That is the Employment Appeal Tribunal]"

He then goes on to state other factors which were relevant to that particular case. But it is that particular passage which has been quoted by the President, with approval, in his judgment in the case of Lindsay dealing with applications made under paragraph 11(1)(e).

	In the present case, it is plain that the Tribunal sought to do what in common sense, it thought was expedient and right to correct an error of law. Instead of sending the matter to the Employment Appeal Tribunal on a point of law, they sought to deal with it in a practical way, taking a short cut as it were. Unhappily, we think that on the above authorities the Tribunal fell into error, and on that ground alone, think that the appeal must be allowed.

	Miss McKie then referred us to a second matter where she says that the Tribunal made a further mistake. On hearing the review, they permitted further evidence to be given, first, to some small extent, by Mr Cole, who of course had given evidence on the earlier Tribunal hearing on 21st September 1994, and also by Mr Westrope, who was a director of the respondent company. The evidence Mr Cole gave on 2nd November 1994 was largely elaborating and rehearsing was he had stated before, namely that he should have been re-located to another job which was available in the Bournemouth area. Mr Westrope gave evidence which in effect directly reflected the written statement he had made on 5th September 1994. This had stated that Mr Cole was unsuitable for the job, and in that form had been admitted into evidence before the Tribunal on 21st September 1994.  The written statement was short but it is said that on 2nd November Mr Westrope gave evidence at extended length; something like 3/4 of an hour has been mentioned. Miss McKie says that this further evidence of both Mr Cole and Mr Westrope was evidence which was available to the respondents prior to the hearing of 21st September 1994, and if they had wished to call it they could have done so then. It was now too late for them to try to do so as part of the review process. We accept that submission. Although this seems by far and away the more technical of the grounds of appeal, it is, notwithstanding that, one which the Appellant is entitled to take and in our view reflects a further error by the Tribunal. 

	The decision, therefore, must be that this appeal be allowed to the extent that it has been appealed, namely on the question of compensation. 

	We wish to make certain further comments about our decision lest the parties should have difficulty in accepting the sense of it. We regret having to allow the appeal in this way. The natural course for the respondents to follow now would be to make an application for leave to appeal out of time. In the circumstances of this case, the Tribunal would probably look upon such an application with favour. Thereafter the employers might make an application for the hearing of that appeal to be expedited and arrangements can be made for that. But at the end of the day, one can see that the matter will be remitted or may well be remitted back to the Tribunal for a further determination. On the remitted hearing, the Tribunal will have evidence it had before it on 2nd November 1994, and the probabilities are it will come to same decision. We are of course mindful of the fact that during this period of time  which may well be several months, Mr Cole will be kept out of his money. This process of thought persuades us to suggest the parties may be able to get together and come to a settlement which will obviate all such further proceedings. In the meantime, the appellant has, in our view, valid points of law, and we have no alternative but to allow the appeal to the extent that the appeal is against the order for compensation.