Appeal No.	 EAT/529/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 October 1997

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MRS E HART
MR R H PHIPPS

MS Y ALLEYNE	APPELLANT

LONDON UNDERGROUND LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MISS V EASTY 
(of Counsel)
Messrs Russell Jones & Walker
Solicitors
Swinton House
324 Gray's Inn Road
London
WC1X 8DH	

	MR JUSTICE MORISON (PRESIDENT):     The purpose of this hearing is to determine whether Ms Alleyne has an arguable point of law in relation to a decision of an Industrial Tribunal which was promulgated on 3rd February 1997. By that decision the tribunal record that the application was dismissed on withdrawal by the applicant. 

	Normally, there could be no question of this Court reviewing an order in that form unless we were satisfied that it was arguable that the circumstances in which that order came to be made renders it right for this Court to review the decision. The question at issue is whether those circumstances exist in this case.

	There is a background to this case which needs a little elaboration. Ms Alleyne had presented two complaints to an Industrial Tribunal against her former employers, London Underground Ltd. The first is time is dated 4th May 1994; the second in time is dated 9th January 1995. 

	In the first complaint the applicant refers to the fact that she had been off sick for two months before she returned to work on 5th April 1994 when she was informed that her job had been advertised the previous week for a permanent position. She alleges that she was informed that the employers had thought that she had gone on maternity leave, although by that time she had not. 

	In her second complaint she alleges firstly, that her replacement had been appointed and she was informed that the appointee was a permanent one. Secondly, that she was not guaranteed any employment on her return from maternity leave and that she was offered voluntary severance which she accepted.

	The Industrial Tribunal considered the question as to whether these complaints raised any legitimate grievance, or whether a costs warning should be given. By an order dated 12th May the tribunal ordered the applicant to pay a deposit of £50 because the tribunal was of the view that her application had no reasonable prospect of success. The order continued:

“The reasons, in summary form, for considering that the contentions in question have no reasonable prospect of success are:
that the Applicant’s claim was premature - right to return not yet having been exercised.”

	The £50 deposit was not paid. Accordingly, her Originating Application was struck out. It is clear that the tribunal were confused as to which of the two Originating Applications should be struck out and there was a Certificate of Correction issued on 22nd September 1995.

	It is Miss Easty’s contention on behalf of the applicant that the applicant indeed did not have any reasonably arguable complaint in relation to her right to return to work. Therefore, the tribunal were entitled to strike out that complaint. But she says what happened was that at the hearing of the complaint on 3rd February 1997, the Chairman and members did not understand the nature of the complaint was that they were considering. It would appear from reading a letter from the learned Chairman, that the tribunal were of the view that the complaint was hopeless, and they refer, specifically, to the fact that this complaint had had a costs warning in relation to it. But it would appear that the complaint that her job had been filled on her return to work from being off sick was not the complaint which had been struck out and was not the complaint which was adjudged by the tribunal to be hopeless. In paragraph 3.5 of the letter it would appear that the Industrial Tribunal considered that this was a complaint in relation to her return to work. In those circumstances, it may well be that there was a muddle as to precisely what complaint the Industrial Tribunal were charged with considering. There is also a possibility that administratively technically the wrong complaint was struck out.

	It seems to us that it is arguable that there has been such an administrative muddle in this case, that we should look at this matter even though what happened was that there was a withdrawal of the application. It would appear that the Chairman was of the view that because the application was so hopeless it would be appropriate to put pressure on the applicant and her adviser to withdraw the case, rather than to run the risk of a costs order being made against her. But it would be arguable, as Miss Easty has persuaded us, that in reaching that conclusion, the tribunal themselves, no doubt through lack of assistance provided to them at the time, were unclear as to precisely the nature of the complaint they were having consider. It is on those grounds that we regard this case as arguable and fit for hearing.

	The directions I give are that this case will take no longer than an hour and a half in all. It should be listed as Category B. In my view Notes of Evidence are not required, bearing in mind the full letter that we have had from the Chairman of the tribunal. The Notice of Appeal does require to be amended. I am content that the parties should work to the judgment which I have given, copies of which will be available to them which will indicate the points which are alive for argument.