Appeal No. EAT/39/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 28 October 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MRS M E SUNDERLAND JP

	MRS P TURNER OBE

MR A CARMELITANO	APPELLANT

KINGSTON & ESHER HEALTH AUTHORITY	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR T A CEDENIO
(Citizens Advice Bureau
	Representative)
	Epsom & Ewell Citizens
	Advice Bureau

For the Respondents	MR T PITT-PAYNE
(Of Counsel)
	Messrs John Warren
		Solicitors
	Well House
	High Street
	Ewell Village
	Ewell
	Surrey
	KT17 1SQ

	JUDGE HULL QC:	Mr Carmelitano has been employed in the National Health Service since 1 March 1967 and he started work then as a porter.  In 1972, after a transfer between organisations but still in the NHS, he became a cook and he so remained until ending his employment on 20 April 1992.

	What happened was that under a scheme of reorganisation there was an announcement of the closure of Long Grove Hospital, Epsom, where he was employed in the cook's department.  On the same day it was announced that there was a vacancy, a cook's job, at the West Park Mental Illness Unit to which he could transfer or, at any rate, for which he could apply.  It is rather important to make the distinction.  

	In spite of encouragement to apply for that post he failed to do so.  He apparently had reasons for that, feeling that he was ill-qualified as a cook and would like to undertake other work.  However that might be, that led to his dismissal; or rather the combination of closing down Long Grove Hospital and the fact that he had not applied for this other job led to his dismissal.

	On 30 January 1992 he applied in IT1, the usual application, saying that he wanted a redundancy payment, having been given his letter of dismissal on 27 January.  The matter came before the Industrial Tribunal, sitting at London South under Mr Crome with his two Industrial Members, on 25 July 1992.  Most unhappily, everybody involved in this story at that stage was under a complete misapprehension.  

	It was thought that the claim should be and was being made under the General Whitley Council Agreement which had special provision under Section 45 for just such occasions as this.  There were special provisions there which were incorporated into the Employment Protection (Consolidation) Act 1978 under the statutory provisions as they then existed.  There were provisions in Section 99 and other sections which, in effect, gave the Industrial Tribunal jurisdiction to try the questions which arose under the Whitley Council Agreement.  And one of the defences to the claim under that agreement was that he, the Applicant, had failed to apply for suitable alternative employment with the Health Authority and by a majority the Industrial Tribunal found that that defence was made out.

	In fact, the true position was that the statutory provisions which conferred jurisdiction on the Industrial Tribunal had in fact been repealed by the provisions of the National Health Service and Community Care Act 1990, Section 66 referring to Schedule 10; and when one turns to Schedule 10 one finds that all manner of repeals are provided for and one of them is for these provisions in the Employment Protection (Consolidation) Act, Section 99(1)(c) and certain words in Section 111 and Section 138 and, of course, Schedule 5 which conferred the jurisdiction.  

	So all those were repealed from 1 April 1991.  At the material times, when the complaint was made and when it was considered by the Industrial Tribunal, the provisions of the General Whitley Council Agreement were not something on which the Industrial Tribunal could adjudicate.  The application was, as I say, considered on a quite misconceived basis, and was rejected by the Tribunal, again on the same quite misconceived basis, nobody having alerted the Tribunal and the Tribunal itself not being alerted to this point.  Mr Carmelitano appealed to us and for the first time it was pointed out in the clearest possible way by the Respondents, who by then had been duly and properly advised about the mistake which had been made.

	The position, as it seems to us, is perfectly plain.  In the application to the Industrial Tribunal what is asked for is redundancy pay.  It is, on the face of it, a perfectly competent application and should have been considered in accordance with Section 81 and the other relevant provisions of the Act of 1978.  It was not considered under those provisions because of the misapprehension under which all the parties were labouring.  That is clearly a mistake of law of a fundamental sort on both sides.  It clearly goes to the jurisdiction of the Industrial Tribunal.  It is not a point which we can overlook on the basis that it was not taken below. 

	It seems to us that there is only one course which justice allows us to follow and that is to say, "the application being duly made, it should be duly considered by this Industrial Tribunal".  Mr Pitt-Payne says that first of all this application should be construed [I hope I am not paraphrasing unfairly] in the light of the case as it was put forward before the Industrial Tribunal, in other words that it was made plain before the Industrial Tribunal that it was in fact an application under the Whitley scheme.  But that, with all respect, was a method of "clarifying" matters which was based on a fundamental misconception and it seems almost, with respect, playing with words to say that it is now put forward on a different basis.  
	The basis on which it should at all times have been put forward is now clear and certainly the application itself is simply for redundancy pay.  The fact that it was put forward in a misconceived way at the Tribunal does not affect the fact that it was an application for a redundancy payment.  Again, Mr Pitt-Payne, putting forward another point he wants us, on instructions, to consider, says that this is not a point which was taken before the Industrial Tribunal.  However, it is clearly a point which goes to jurisdiction and as I said, we cannot see any merit in these points although Mr Pitt-Payne was fully entitled to put them forward.  
	It seems to us that the only proper and just course, in spite of what is said, is to remit this case with, of course, the knowledge which everybody now has, that it is to be tried as a perfectly ordinary application for redundancy pay and the Respondents will make such submissions and call such evidence as they wish.  The Applicant will also.  The matter is to be tried anew.  The first trial was as near as possible to being a nullity.  It was wrong in every way and this application is to be heard from the start again by the Industrial Tribunal, the same Industrial Tribunal can hear it.  They know already a good deal about the facts of the case.  

	It seems to us that there is no reason why they should not embark on the enquiry now that the misapprehension has been put right, and we make a particular request that they should give priority to this case and that it should be tried as soon as they conveniently can so that Mr Carmelitano, who is being (so to speak) kept out of the decision by a mistake which was common to all the parties and the Tribunal itself, should as soon as possible have the justice of his case determined.  The appeal is allowed and the matter is remitted to the same Tribunal.