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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Kumchyk v Derby City Council [1978] UKEAT 122_78_2407 (24 July 1978) URL: http://www.bailii.org/uk/cases/UKEAT/1978/122_78_2407.html Cite as: [1978] ICR 1116, [1978] UKEAT 122_78_2407

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1. MR. JUSTICE ARNOLD: This is an appeal from a decision of an industrial tribunal which sat at Derby in September and October 1977, which decided that Mr. Kumchyk, the employee, had not been unfairly dismissed by Derby City council, the employers, in whose employment he was, until his dismissal in May 1976, as a car park attendant.
2. The facts of the case so far as material are these. In accordance with the procedures which seem to be foreshadowed by the terms of the employee's employment, he was directed by his superior to work at a particular car park at Eagle Centre. He declined to do so and he was dismissed for so doing. The industrial tribunal's decision, broadly speaking, was that the order which he was given was a lawful order in accordance with his contract. It was part, they say, of the terms of employment that car park attendants should be moved from car park to car park and that the employers acted reasonably in treating his refusal as grounds for dismissal, being of course a ground of conduct as seen from the point of view of paragraph 6(1) of Schedule 1 to the Trade Union and Labour Relations Act 1974. It is relevant to observe that the terms of his employment to which we have referred were apparently to be found in the letter of engagement dated March 9, 1967, which was in evidence before the industrial tribunal and the particulars of the contract under the Contracts of Employment Act 1972 which were also in evidence, not in the precise form of the filled-in version which was in the possession of the present employee, but in the outline form remaining to have the particular matters filled in, were for the purposes of anything relevant before us as we think, an entirely sufficient guide.
3. Now in accordance with those documents the employment was as a car park attendant, that being the heading on the letter of March 9, 1967, The working week was described as a 40-hour five-day week with a different day off each week, and it specified that attendants were on duty at different parks each week. The contract of employment particulars add very little to that except to say that "Your times of work will be in accordance with the separate instructions issued and agreed with your department," and the case was conducted below on both sides on this footing, that the requirements specified in the documents included a requirement to work in any car park to which the employee was directed, but in asking this particular employee to work in the Eagle Centre the employers were acting, so it was said on behalf of the employee, unreasonably in that it was a place in which the conditions did not suit him, in which he had inadequate hours for his lunch break and which was unsuitable for him because, being by origin ethnically a Ukrainian and speaking imperfect English, he was embarrassed and distressed by questions which were directed to him by the car parking public (matters of that sort), and that therefore he, being required unreasonably to work in a particular place albeit he refused to do so, was not a man who was fairly dismissed in the sense that the employers in treating his refusal as a ground for dismissal acted unreasonably because he was refusing an unreasonable request. That was the sort of case that was made and that was the case which was negatived by the industrial tribunal.
4. Now no quarrel is made with the industrial tribunal's decision on the basis on which it was made with one exception and that is this. The employee shortly after he was dismissed made an application for statutory benefit which was disallowed by the officer initially dealing with it on the ground that he had been dismissed on account of his own misconduct. He then appealed to a National Insurance local tribunal under the Social Security Act 1975 to get that decision reversed and it was reversed, and the notice of appeal complains, and argument has been addressed to us on the point, that an alleged refusal by the industrial tribunal to allow the written report of the proceedings of that local appellant tribunal to be admitted in evidence was a wrong decision. As regards this point, it is by no means clear on the material before us that there ever was such a refusal; but, if there was such a refusal, we do not think that a refusal made in what undoubtedly must be a discretion of the industrial tribunal to admit this sort of material can have been a wrong exercise of discretion. Nor indeed is it suggested before us that the findings of that tribunal could or should have influenced this industrial tribunal, either that facts established between the Department of Health and Social Security on the one hand and the employee on the other should have influenced or controlled the industrial tribunal in any way, or that the conclusion of the National Insurance local tribunal should have had any similar effect. But what is said is, "Well, one of the documents which was bound up with the report of the proceedings of the local tribunal was a medical certificate dated February 1977 (that is some months after the dismissal) and dealing with some condition of a peptic ulcer from which the employee had by that time been suffering"; that that might have helped his case. Well, it might have helped his case marginally, we suppose, but if that was the document which it was sought to introduce the right way was to seek to introduce that document as a separate piece of medical evidence which might or might not have been admitted, certainly a procedure which was never even discussed. We do not think that that by itself can be said to give a valid ground of appeal.
5. But the real point of the appeal is a different point. The real point of the appeal is not to quarrel with the method of disposal of the issues which arose before the industrial tribunal, but to introduce a new issue and the new issue is this. It is said that this never was a lawful order at all, that this never was a lawful order because the Eagle Centre car park was neither one of the car parks which was in existence at the time of the contract of employment in March 1967 nor a cark park, since introduced, of a broadly similar nature; it being, it is said, an implied term of the contract between the employee and the employers that he would be required to work only in such existing car parks or similar car parks. Now that contract was in fact made with the predecessor authority, Derby County Borough as it was in 1967 under the local government legislation then in force. Since 1974 the local government arrangements have been altered by statute and the present respondents are the employers. We are not however at all satisfied that the contract has in any way altered as regards the substantial terms as distinct from the identity of the employer by reason of any local government re-organisation, and we approach the case on the footing that the contract with which the industrial tribunal had to deal was the 1967 contract.
6. It is of course plain that the implied term argument was not presented to the industrial tribunal. Whether there is to be a term implied in the contract is ultimately a question of law, but it is a question of law which can be decided only within the context of the framework of relevant facts and the framework of relevant facts always must include, and is specifically alleged in this case to include, the knowledge and understanding by the parties to the contract at the time at which the contract was made of the matters affecting decisions as to what would go into the contract and most particularly in the present case, although there may well be other matters, that at the time at which this contract was negotiated in 1967 the employee had a history of glandular tuberculosis, that being a medical condition in relation to which it was material that he should work in neither the sort of car park that the Eagle Centre was, nemely an underground car park, nor, put more widely to meet the implied term which is sought to be introduced, any car park which was not an existing car park or one broadly similar to an existing car park in 1967. The two things in the end probably amount to the same thing so far as material to this case. But it was obviously not sufficient merely to establish the medical history and the industrial consequences in relation to what must be taken to be a term implied in this contract negotiated between Derby County Borough and the employee. It would obviously be quite essential also to establish, as is recognised in the notice of appeal, that the county borough knew about this matter, because if they did not know about the matter then plainly there could be no implied term. And so at least to the extent of investigating the knowledge of the county borough, or the officers concerned with the matter in 1967, this is a matter which would have required new evidence, probably both oral and documentary, and a consideration of that new evidence by the industrial tribunal both of which were matters which did not take place because the point never arose before the tribunal. It would also in fact require a further consideration by the industrial tribunal of whether, given their findings of fact in relation to the new evidence, they thought that a term ought to be implied in the contract or not, and if so, what term should be implied exactly and whether it would be a term which turned what was regarded before the tribunal as a lawful order into an unlawful order. Those last matters are no doubt matters of law which would be perfectly suitable for consideration in this appeal tribunal, but the way in which this appeal tribunal works within the framework of the relevant industrial legislation is as an appellate tribunal to decide whether or not the industrial tribunal appealed from has erred in law, and the fact that a point is fit for consideration in this appeal tribunal does not in our judgment mean that an initial decision by an industrial tribunal is other than apposite and necessary.
7. But the real point of the case and whether we should make an order which would in effect remit the matter to be re-litigated extends to the powers of this tribunal and the way in which those powers ought to be exercised. The first point to be noticed is this, that up to 1971 the matter was regulated by the Tribunals and Inquiries Act 1958. The precise text of the Act of 1958 as such is not before this appeal tribunal today, but in fact that shortcoming is not a serious one because the language of the Act of 1958 upon this point was identical with the language of section 13(1) of the Tribunals and Inquiries Act 1971 and that provided an appeal if any party was dissatisfied in point of law with a decision of the industrial tribunal. That is in fact somewhat different, markedly different, language to that which is contained in the modern statutes, the Industrial Relations Act 1971 followed by the Employment Protection. But the judicial consideration of the matter starts there, and the first case which is cited to us is J. Smith Coats (London) Ltd. v. Rifkin (1970) 5 ITR 188, a decision by the Queen's Bench Divisional Court in relation in fact to the Redundancy Payments Act 1965 and a case which arose under the provisions of the Tribunals and Inquiries Act 1958. It was a case in which the employers had not contended below that the claim for redundancy payment was barred by limitations. If the facts which they sought to introduce were right, it was barred by limitations. On the appeal by the employers, the Divisional Court rejected their appeal simply saying that the appellants never took the point before the industrial tribunal, the matter of limitations was never mentioned before the tribunal, the relevant section of the Redundancy Payments Act 1965 was in the form of a limitation of proceedings clause, and it was perfectly open to any party to waive the limitation point. And they conclude, at p. 189:

"These appellants, by never taking the point, in my judgment completely waived it, and I would not allow them and do not allow them to raise the point for the first time in this court."

8. That was in substance a unanimous decision of the Divisional Court. It may be that one is dealing there with a procedural conception, a conception of limitations in relation to which waiver is a familiar concept and that i is easier to come to the conclusion that someone must have been taken to have waived the procedural advantage otherwise available to him than to come to a parallel conclusion in a case of this sort that someone had chosen to fight his case on the basis of the contract being a different contract from that which it was, and we see that there may be a distinction between that sort of case and this sort of case. But the matter does not stop there by any means because, as the cases go on, so the concept comes to be applied, at any rate in certain circumstances, to the situation where the point not argued below is a substantive point and in no way a procedural point. InStewart v. Alexander (1969) 4 ITR 234, there was a point sought to be taken in the Court of Session - this was the stage before the establishment of this appeal tribunal and indeed before the National Industrial Relations Court - that an offer of alternative employment made to some redundant employees had not complied with the requirements of the Redundancy payments Act 1965. It was a point which had not been taken before the industrial tribunal and the Court of Session held that the issue should not be canvassed on the appeal, and the way the point is put there is this, at p. 235:

"From the way in which the cases are stated it is apparent that it was not contended before the tribunal that the offer in question was not sufficiently specific, and the only issue was whether it was an offer of suitable employment. Consequently, we have not before us - and quite rightly have not before us - the full statement of the circumstances in regard to specification of the particulars of the offer which would otherwise have been set forth in the case."

Then they deal the matter on the merits and continue, at p. 235:

"The full circumstances are not set out and it would be unjust for us to proceed on a matter not properly argued in the court below and not therefore fully stated in the case which comes to us. These cases are appeals brought in relation to specific issues argued in the court below and can therefore relate only to the matters which have been litigated in the court below."

9. And they distinguish the legal appeals in purely law courts. That is a decision which seems to come very close to saying that merely as a matter of jurisdiction, there being no specific issue argued in the court below, there can be no appeal; but it also does put into the equation the fact that the matters are not stated in the cases before the appellate court, in that case the Court of Session, so that it is not really as it seems to us a very clear cut decision and in any case it is a decision made on the basis of the Act of 1958. When one looks at the last case decided under that Act, Central Scotland Water Development Board v. Johnston (1970) 6 ITR 86, it is quite plain that the ground which is taken is the ground that the argument was not adduced in the tribunal below and that the relevant facts were not raised before that tribunal, so that that case is not at all compulsive of the view that the mere history of non-argument will suffice to exclude a case in the appellate court.
10. We now turn to look at the more recent cases which were decided on language indistinguishable, as we think, from the language of the present statute which we have to deal with section 88 of the Employment Protection Act 1975. There are two cases. The first case is GKN (Cwmbran) Ltd. v. Lloyd [1972] ICR 214 and decided by the National Industrial Relations Court. The particular circumstances of the case do not very much matter. The point that is relevant appears on p. 219 in which, in order to distinguish cases like Stewart v. Alexander (1969) 4 ITR 234, counsel submitted to the court that there could be circumstances in which new points were permissible in the National Industrial Relations Court being points which arose out of the decision of the industrial tribunal although they had not been raised before that tribunal. That argument in terms of jurisdiction, as we read the decision, was never dealt with. The court said, at p. 219:

"Whether or not it is correct that there is some difference in the scope of appeal provided by the respective Acts, it is sufficient to say that, in our judgment, it would be unjust to allow new points to be raised on appeal which could have been, but were not, raised by either party before the tribunal and which formed no part of the tribunal's reasoning."

11. The respective Acts were of course the Tribunals and Inquiries Act 1958 and the Industrial Relations Act 1971 which has the same language for relevant purposes as the Act of 1975. It is notable that in that statement of the law the court does not depend in any way upon the circumstance that new facts would have to be found. The proposition as stated extends merely to the newness of the point, but it is also significant that it is not said that there is no jurisdiction but only that it would be unjust to exercise it. In the only remaining case to be noted, Hereford and Worcester Council v. Tolley [1976] ICR 450 which was decided by Phillips J., the President of this appeal tribunal sitting as a judge of the Queen's Bench Division in the interim period between the establishment of this tribunal and the end of the Industrial Relations Court, Phillips J. did not have cited to him any of the cases which we have mentioned and proceeded upon the assumption that the ordinary rule applies in which an appellate court in a purely judicial hierarchy will sometimes at least entertain a new point of law which has not been argued below provided that no further factual investigation is required.
12. Our conclusion upon the matter is this, that there is nothing in the language of the statute to exclude the consideration of a new point of law but that it would in almost every conceivable case, as the National Industrial Relations Court said in GKN (Cwmbran) Ltd. v. Lloyd [1972] ICR 214, be unjust to do so. The case which one can conceive as a case in which it would not be unjust to do so would be a case in which there has been some deception on the part of the respondent to the appeal which entitles the appellant to say, "This really is a case in which we were headed off from running the point which we are now seeking to run before the appellate court by conduct which cannot possibly be condoned in justice by the appellate court." There may conceivably be other matters of that sort which would negative the unjustness which the National Industrial Relations Court mentioned, but it would have to be, we think, some matter of that sort. It certainly is not enough, in our judgment, that the point was not taken owing to a wrong, or what turns out in the light of after events to have been a wrong, tactical decision by the appellant or his advocate. It would certainly not be enough that the omission was due to the lack of skill or experience on the part of the advocate. It would certainly not, we think, be enough that the omission could have been made good had the industrial tribunal chosen to suggest the point for consideration to the appellant or his advocate. It is well established in these tribunals, and we hope in this appeal tribunal, that where the representation is a non-professional representation, or possibly even where it is an inexperienced professional representation (if such a thing can be conceived), in listening to an argument put forward by an advocate or evaluating a point of law put forward by an advocate, the tribunal will be as helpful as possible, perhaps by itself refining and improving the argument, perhaps by suggesting to the advocate that the argument might be put in a different or more favourable fashion, something of that sort. But we think that it is very far from the duty or indeed the practice of the chairman of industrial tribunals that they should be expected to introduce into the case issues which do not figure in the presentation on the one side or the other, at any rate in normal circumstances; and we cannot see that if this matter remained upon the basis which was dealt with by the National Industrial Relations Court in GKN (Cwmbran) Ltd. v. Lloyd [1972] ICR 214, namely, a basis in which all that was required was a consideration on the basis of established facts of a new point of law, there would be any reason to depart from the line of decision in that case that it would be unjust to allow the matter to be ventilated. But we think that the matter does not rest there because, as we have indicated, this is plainly a case in which new factual investigations would be necessary, so that even on the narrower rule stated in Central Scotland Water Development Board v. Johnston, 6 ITR 86, and in Hereford and Worcester County council v. Tolley [1976] ICR 450 this is a case in which the facts have simply not been investigated and it would be, even if that narrower rule were the rule that ought to be applied, quite plainly a case in which the new point would not be allowed to be raised, and for those reasons, we dismiss the appeal.

Accordingly the appeal is dismissed.