Appeal No.	 EAT/1336/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 April 1997

Before
THE HONOURABLE MR JUSTICE LINDSAY
MR J A SCOULLER
MRS P TURNER OBE

PWP INFANTS ACADEMY	APPELLANTS

MISS M TUININGA	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR T IMBUSCH
(Husband of Proprietor)	

		MR JUSTICE LINDSAY:    We have before us the Appellant, PWP Infants Academy.  PWP Infants Academy is, as we take it, a relatively small firm, run by one or both Mr and Mrs Imbusch, it matters not for the moment.

	The case had PWP Infants Academy as the Respondent employer; the Applicant below was Miss M Tuininga.  This matter has, unfortunately, a very depressing and confused procedural history which it is necessary briefly to set out.  There was a hearing before the Industrial Tribunal on 2 July 1996 held at London (South) in a matter marked No.19908, made up of Mr B J Stansfield as Chairman, and Mr Day and Mr Harrison.  The decision of that Industrial Tribunal was promulgated on 15 July 1996.  Before it was Miss Tuininga’s application for a remedy in her favour on account, she said, of there having been illegal deductions from salary in relation to holiday pay and sickness pay.  

	The application on 2 July was heard in the absence of Miss Tuininga.  In her absence her complaint was found not proven and her complaint was dismissed accordingly.  The Respondent to that application, PWP Infants Academy by Mr and Mrs Imbusch, did attend.  Their evidence was given.  They were believed to be telling the truth upon oath.  PWP’s detailed calculations in relation to holiday pay and sickness pay were accepted by that Tribunal and incorporated into their judgment.  Sickness certificates also were produced.  The outcome of those calculations, seemingly accepted by that Industrial Tribunal, was that, far from her being entitled to sickness and holiday pay, Miss Tuininga had in fact been overpaid by the sum of some £68.  That, it is to be remembered, was all in Miss Tuininga’s absence.  

	On 9 July there was a hearing before the Industrial Tribunal in a matter marked No.20219.  That decision was promulgated on 15 July.  That decision was a decision of Mr D Booth, sitting alone.  Matter 20219 was a duplicate of No. 19908, the matter that had been dealt with on 2 July. 19908.  What had happened was that Miss Tuininga had not only sent in a hard copy but a fax copy of her complaint.  It had not been noticed that the two were identical and the two had been given different numbers, respectively 19908 and 20219.  Not only were they given separate numbers, they were given separate hearing dates.  What had happened was that PWP had assumed 19908 was the correct matter and therefore attended on the hearing date for that, 2 July, and there had the success that I have mentioned, but Miss Tuininga had regarded No.20219 the hearing date on 9 July as being the appropriate one and had therefore not attended on 2 July.  Accordingly no-one had attended on 9 July for PWP, because PWP thought that the matter had been disposed of.  

	It was plainly a silly confusion that should not have been allowed to have arisen.  What Mr Booth did on that hearing on 9 July was that he ruled that No.19908 which had been dealt with on 2 July should be sent for review and that No.20219 should be withdrawn.  Quite what power Mr Booth had to send No.19908 for review we do not pause to examine.  

	Next, on 17 September 1996 there was another hearing before the Industrial Tribunal.  This time it was back to the constitution as it had been on 2 July, namely Mr Stansfield and the other two Members who had heard the matter on 2 July.  On 17 September 1996 there was a second hearing before them and their decision was promulgated on 25 September 1996.  This time Miss Tuininga was present in person but the Respondents did not attend nor were they represented.  What they did on 17 September 1996 was to revoke their decision of 2 July as promulgated on 15 July by way of review.

	It is not at all clear how that came about.  It does not seem to have been a review that was applied for by Miss Tuininga.  There is certainly no sign of any such application by her.  There is difficulty in regarding it as having been a review prompted by the Tribunal itself.  Rule 11 of Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, which has the heading “Review of tribunal’s Decision” says at Rule 11(3):
“A tribunal may only review a decision of its own motion if, within the period beginning with the date of the hearing and ending with the fourteenth day after the date on which the decision was sent to the parties, it has sent notice to each of the parties explaining in summary form the ground upon which and reasons why it is proposed to review the decision and giving them an opportunity to show cause why there should be no review.”

The date alone suggests that this cannot have been a review within 11(3).  Moreover, the history that I have related rather suggests that the review was on the prompting of Mr Booth, and, of course, Mr Booth not having been a party to the original hearing, had no power in that respect.

	For all that, on 17 September the Industrial Tribunal revoked the decision of the 2 July and went on to hear No.19908 afresh.  There is no indication that PWP had been told that if the application for review was successful there might there and then be a fresh substantive hearing of the complaint.  Rule 11(7) says this:
	“On reviewing its decision a tribunal may confirm the decision, or vary or revoke the decision under the chairman’s hand; and if it revokes the decision, the tribunal shall order a re-hearing before either the same or a differently constituted tribunal.”

The Rule seems to suggest that in the absence of an order for a re-hearing, there is no jurisdiction to proceed to a re-hearing.  There is no indication here that there was an order for a re-hearing, still less an order for a re-hearing that came to PWP’s notice.  The result that was arrived at on the re-hearing on 17 September, leaving aside whether the re-hearing was proper or not, was a different result from that obtained on 2 July.  The Industrial Tribunal held: 
“b)	  that the Respondent had made an illegal deductions from the Applicant’s wages contrary to section 13 of the Employment Rights Act 1996 in respect of sickness pay and holiday pay.  The Tribunal makes a declaration to that effect and orders the Respondent to pay to the Applicant the sum of £702.66.”

	The decision came to the notice of PWP.  PWP then sought a review.  The decision on 17 September had been preceded by some communication from Mrs Imbusch and she had written a letter indicating that, as the Tribunal held it to be the case, she had decided not to attend on 17 September.  She had written a letter that said this:
“When my husband and I attended the Tribunal in July we submitted all the evidence and documentation we have regarding this case and the Tribunal found in our favour.  The evidence presented by me was found to be correct and I have little more to add.”

It was on that basis that the Tribunal proceeded in her absence, taking the view that she had decided not to attend.  As I mentioned earlier, there is no indication that it had been brought to her notice that there might not only be a review but a movement from review to full substantive re-hearing.  

	As I mentioned earlier, on 13 November, the Tribunal, having received Mrs Imbusch’s application for a review, declined it.  On 13 November the Industrial Tribunal’s office wrote to Mr or Mrs Imbusch:
“Thank you for your fax of 7th October 1996 which has been referred to the Chairman who heard this case.  He has directed me to inform you that your request for a review has been refused.”

	In these circumstances the complaint that Mrs Imbusch now makes is divisible into parts.  First of all it was not, she says, that she decided not to attend on 17 September 1996, as the Industrial Tribunal hearing the matter on 17 September held to be the case, but rather it is the position, she says, that as early as 6 September she had faxed to say that she could not attend on the 17th but that it was as late as 13 September, after hours, by message to her answerphone, that it was indicated to her from the office that the hearing was going ahead.  She did not receive that communication, she says, until 16 September, the very day before the hearing.  She says that she then contacted the Industrial Tribunal and was asked to re-fax a copy of her letter of 6 September, which she then did.  That was how the matter proceeded, she says, and in that situation, she urges, it is hardly fair to proceed on the basis as the Industrial Tribunal did, that she had decided not to attend.

	We have before us a Notice of Appeal by PWP.  It is not an appeal against the substantive decision promulgated on 25 September as a result of the hearing of 17 September but is an appeal against the refusal of a review as indicated by the letter of 13 November.  It is to be remembered that as yet nobody has had before it both sides at the same time.  Nobody has had before it, therefore, a position in which each side has been able to hear the other’s case and the other’s witnesses and to comment upon the other side’s case.  The procedural reasons for this strange situation, whilst not such as, perhaps, wholly to exonerate both parties, certainly involve material shortcomings at the Industrial Tribunal office and, perhaps, amongst the Chairman and Members themselves.  It seems that the provisions of Rule 11 have not been complied with in the manner that we have earlier indicated.  It is far from clear, but it may also well be that the Industrial Tribunal has had before it documents which had not been disclosed in advance as being intended to be relied upon and which are such that had they been disclosed, their authenticity would have been in issue.  If that has been the case, reliance upon such documents will have been dangerous or unfair.  There are, moreover, real doubts as to the jurisdiction which has been exercised in the case for want of compliance with the rules in the manner that we have indicated.  

	The obvious desirable end here is a hearing with both parties present, each able to hear the other side’s case, challenge the other side’s witnesses, challenge the other side’s arguments and to do so in each case upon documents which are either admitted or which are properly challenged.  For us to allow, as a matter of preliminary ruling, the Imbusch appeal against a refusal of a review, would be a very cumbersome route to getting to that end.  It is for that reason that we have instead considered the appropriate rules.  We find there some assistance from The Employment Appeal Tribunal Rules 1993 Rule 24:
“(1)   Where it appears to the Appeal Tribunal that the future conduct of any proceedings would thereby be facilitated, the Tribunal may (either of its own motion or on application) at any stage in the proceedings appoint a date for a meeting for directions as to their future conduct and thereupon the following provisions of this rule shall apply.
(2)	   The Registrar shall give to every party in the proceedings notice of the date appointed under paragraph (1) of this rule and any party applying for directions shall, if practicable, before that date give to the Appeal Tribunal particulars of any direction for which he asks.”

	What it seems to us is appropriate is this: first of all there should be a transcript of this judgment prepared.  Secondly, a copy of that transcript should then be sent to each of the parties.  Next the Registrar of the EAT shall appoint a date for a hearing for directions under Rule 24, being a date not less than two months after the posting of the transcript of the judgment to the latter of the two parties to be sent one.  Next, within three weeks after their receipt of the information given to them by the Registrar appointing the hearing date, each party shall give to the EAT particulars in writing of the directions which that party will seek at the hearing date.  They shall also give notice to the other side indicating what the directions are which they will seek on the date for hearing for directions.  Each side’s written representations in relation to the directions hearing are to be in the hands of the EAT and in the hands of the other side at least fourteen days before the hearing date for directions.

	Turning to Rule 24(4) of The Employment Appeal Tribunal Rules 1993 it says this:
“On the date appointed under paragraph (1) of this rule, the Appeal Tribunal shall consider every application for directions made by any party and any written representations relating to the application submitted to the Tribunal and shall give such directions as it thinks fit for the purpose of securing the just, expeditious and economical disposal of the proceedings, including, where appropriate, directions in pursuance of rule 36, for the purpose of ensuring that the parties are enabled to avail themselves of opportunities for conciliation.”

If it is the case that the parties fail to come to terms, then the desirable end, which will be a matter for the consideration of the EAT when it hears the hearing for directions, will be the just, expeditious, and economical disposal of “the proceedings” which, in our view, the EAT will be entitled to regard as not merely the appeal against the refusal to review, but the full proceedings that would subsist consequential upon the possible allowance of a review.  We reiterate the desirability of directions being given or preferably agreed so as to move towards a later substantive hearing with both parties present at the same time, with their witnesses, if any, present, and with disclosed documents which are either admitted (so far as concerns their authenticity) or as to which proper objections have been taken in such a way that neither side is surprised and each side can challenge as it thinks right.

	We trust that if there is to be a contest in this matter, then in formulating the directions and, preferably, in agreeing them, the parties will have in mind that the object here is ultimately to get to a fresh hearing with a clean slate, with both sides present at the same time.  For the moment what we do is give the directions that I have earlier read and, so far as concerns the formal application for appeal, we stand that over generally with liberty to restore it after the hearing for directions.