Appeal No.	EAT/1115/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 July 1999
Judgment delivered on 1 November 1999

Before
THE HONOURABLE MR JUSTICE CHARLES
MR J R CROSBY
MR D J JENKINS MBE

THE POST OFFICE	APPELLANTS

MR G HOWELL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR ANDREW BURNS
(of Counsel)
Instructed By:
Mr M Hirst
Solicitor
The Post Office Legal Services
Impact House
2 Edridge Road
Croydon CR9 1PJ	
For the Respondent	MR IAN SCOTT
(of Counsel)
Instructed By:
Mr S Auerbach
Messrs Pattinson & Brewer
Solicitors
30 Great James Street
London WC1N 3HA	

	MR JUSTICE CHARLES:	This is an appeal from a decision of a Chairman of an Employment Tribunal at London South who sat alone on 11 March 1998.  

1	The claim was made under s 13 ERA 1996 and the Applicant before the Employment Tribunal (Mr Howell) maintained that the Respondent before the Employment Tribunal and the Appellant before us, the Post Office, had made an unlawful deduction from his wages.  Mr Howell also sought, pursuant to s 11 ERA 1996, a declaration as to his terms and conditions of employment.  The issues related to his entitlement to overtime for work on a bank holiday.

2	Shortly prior to the hearing we contacted Counsel for the parties and invited them to make submissions as to the effect of the recent decision of this Tribunal chaired by the President in Sogbetun v London Borough of Hackney  [1998] IRLR 677. 

3	The Sogbetun decision was made after the Employment Tribunal dealt with this case.  It concerns hearings by chairmen sitting alone and, as Counsel submitted to us, potentially has far reaching consequences.  We asked for submissions on the Sogbetun case because it seemed to us that it supported the conclusion that this appeal should be allowed on the basis that the Chairman sat alone and gave no reasons for doing so.

4	We heard helpful submissions and in addition to the Sogbetun case we were referred to two other decisions of this Tribunal chaired by the President, namely Tsangacos v Amalgamated Chemicals Ltd [1997] IRLR 4 and Sutcliffe v Big C’s Marine [1998] IRLR 428 which relate to a Chairman sitting alone pursuant to Rule 6 in Schedule 1 to the Industrial Tribunal (Constitution etc) Regulations 1993. 

5	The Counsel who appeared before us were the Counsel who had appeared below.  They explained that they had attended for the hearing expecting that the case would be heard by a full Employment Tribunal but had found that a Chairman sitting alone had been allocated to hear the case.  They did not know, and we do not know, who made that allocation decision or the reasons for it.

6	As paragraph 3 of the Extended Reasons demonstrates both sides attended with two witnesses who gave evidence.  We were informed by Counsel for the Post Office that the witnesses he proposed calling (and did call) were senior employees of the Post Office who it would have been difficult and expensive to get them back for another hearing and this was a factor in the Post Office’s decision to go ahead before a Chairman sitting alone.   

7	At the time of the hearing, and in their written submissions that followed it, neither side raised with the other, or made any objection to, the case being heard by a Chairman sitting alone.  As we understand it both sides simply accepted the allocation that had been made.  We can understand why they did so.

8	As we understand it there was no overt consideration by the Chairman as to whether he should sit alone.

9	It is right to record that through their Counsel the Post Office asserted to us that they had not expected that there would be any real dispute as to the facts, and had not anticipated that the Union Officials would deny in their evidence that the Bank Holiday overtime issue had simply been overlooked, or that the intention in 1995 was to rationalise overtime rates and cut supplements across the board.  

10	The main contention of the Post Office before the Employment Tribunal, and on the appeal, was that the principal issues upon which this case should be decided arise out of the construction of the documents.   

11	However both sides attended for the hearing before the Employment Tribunal with witnesses who were senior employees or officials who, as we understand it, had been involved in the negotiations and discussions that took place before, and after, the collective agreement reached in 1995, and in making that agreement, and it was envisaged that they would give evidence about such matters.  It seems that before the hearing no attempt was made to agree the relevant facts, or any of them.

12	Additionally, and understandably whatever his understanding as to the extent of relevant factual disputes before the hearing before the Chairman alone began, Mr Howell through his Counsel in his skeleton argument for this appeal relied on findings of fact made by the Chairman (having heard the four witnesses).  For example he relied on the findings in paragraphs 12 and 13 of the Extended Reasons which relate to the negotiations and the understanding in 1995 of the Post Office on the one side and the Union on the other.

13	Further and in any event it was always the case that an issue in the case was going to be the construction of, and the effect (or potential effect) on individual contracts of, the 1995 collective agreement and in our judgment this is something upon which a Chairman would be likely to receive assistance from Tribunal Members. 

The Stance of the Parties

14	The Post Office did not argue that this appeal should be allowed on the basis that the Chairman heard the case sitting alone.  However they acknowledged that we should consider a jurisdictional point and that the Chairman may have been assisted by the views of Tribunal Members in considering the construction of the collective agreement and its effect on individual contracts.

15	The main argument that we should proceed to hear the appeal was advanced on paper, and orally, by Counsel for Mr Howell.  We are grateful to him for his argument.

The Sogbetun Case

16	In our judgment notwithstanding that:
	(i) there are indications in the Tsangacos and Sutcliffe cases that this Tribunal might have taken a different view, and 
	(ii) in the Sogbetun case this Tribunal consider the merits of the appeal,
paragraphs 9, 13 and 14 of the judgment in the Sogbetun case are to the effect that:

(a)	before he sits alone in the qualifying proceedings identified by s 4(3) Industrial 	Tribunals Act 1996 a Chairman must have exercised his discretion conferred by s 4(5) 	negatively (our emphasis),

(b)	a case cannot be heard by a Chairman sitting alone without the matters referred 	to in s 4(5) having been evaluated by a Chairman,

(c)	the consent of the parties is not determinative as to how the discretion of the 	Chairman concerning whether or not he, or she, should sit alone should be exercised,

(d)	unless the Chairman exercises his, or her, discretion under s 4(5) an Employment 	Tribunal comprising a Chairman sitting alone that adjudicates on a qualifying case is not 	properly constituted in accordance with the statute,

(e)	if the Employment Tribunal is not for that reason properly constituted its 	decision is a nullity, and

(f)	the points as to the proper constitution of the Employment Tribunal, and its 	effect, are ones of jurisdiction and the parties cannot confer jurisdiction by consent, 	waiver, acquiescence or estoppel.

17	Stopping there, as appears above, so far as we are aware this is a case in which the Chairman did not exercise his discretion.  In this context we repeat that he was dealing with the case before the Sogbetun case was decided and therefore he cannot be criticised for not taking it into account.  But an application of the points referred to above in the judgment in the Sogbetun decision leads to the conclusion that his decision is a nullity and we should on that basis remit the case to the Employment Tribunal.

18	It may be that in stating that:
	(i)	the point at issue went to “jurisdiction”, and 
	(ii)	the decision of the Chairman sitting alone in the Sogbetun case was a “nullity”, 
this Tribunal was not intending to use those expressions in their technical sense.  This view is supported by the fact that this Tribunal in the Sogbetun case went on to consider the merits of the case and whether it was just that the case had been heard by a Chairman sitting alone.

19	Points as to an issue going to “jurisdiction” with the consequence that a decision is a “nullity” are different to, and distinct from, the question whether a Chairman has a duty (and thus a mandatory obligation) to consider the exercise of his, or her, power (and thus to exercise his, or her, discretion) under s 4(5) Industrial Tribunals Act 1996.  As to that it seems to us that the Sogbetun case clearly decides, and proceeds on the basis, that a Chairman has a duty (and thus a mandatory obligation) to exercise his, or her, discretion under s 4(5).   

20	However failure to comply with a mandatory obligation imposed by statute in respect of proceedings does not necessarily result in a lack, or loss, of jurisdiction and the decisions made thereafter being nullities. Such a failure can be treated as an irregularity (see for example Secretary of State for Trade and Industry v Langridge [1991] Ch 402 in particular at 410F to 411G).

21	If one assumes that taken as a whole the Sogbetun case:

(a)  is not authority for the proposition that a failure by a Chairman to consider whether or not he, or she, should sit alone goes to jurisdiction and renders his, or her, decision a nullity, but

(b)  is authority for the proposition that a Chairman has a mandatory duty to consider whether or not to hear qualifying proceedings sitting alone and a failure to do so is an irregularity
questions then arise as to what the effect of the failure is in a given case.

22	Paragraphs 15 and 16 of the judgment in the Sogbetun case refer to a defective exercise of discretion, and a failure to give reasons for a decision in exercise of the discretion, but do not deal with the question whether in those circumstances, which depend on there having been an exercise of the discretion, this Tribunal were of the view in the Sogbetun case that a defective exercise of discretion, or the omission to give reasons, also went to jurisdiction and rendered the decision a nullity.  In our judgment it would be surprising if they had been of that view.  It seems to us that in such a situation this Tribunal in Sogbetun would have taken an approach similar to that taken when there has been an irregularity and would have asked themselves whether there was an error of law which should lead to the case being remitted.

23	In our judgment, if this Tribunal (chaired by the President) in the Sogbetun case had treated a failure of a Chairman to exercise his, or her, discretion under s 4(5) as an irregularity that did not go to jurisdiction and render his subsequent decision a nullity, it is clear from their judgment, taken as a whole, that they would have been strongly of the view that in a case where the views and experience of the Tribunal Members were likely to be of assistance to the decision making process (i) a Chairman should generally decide pursuant to s 4(5) that the case be heard by a full Tribunal, and (ii) the effect of the irregularity of not exercising his, or her, discretion under s 4(5) should generally be a remission of the case by this Tribunal for hearing by a full Employment Tribunal.

24	The effect of treating a failure by a Chairman to exercise his, or her, discretion, under s 4(5) as something that is an irregularity which does not go to jurisdiction does not mean that the Chairman can abdicate his, or her, duty or surrender it to the parties.  It would however mean that the rigidity of the approach in the Sogbetun case to consent being given by the parties to the Chairman sitting alone would not apply.  Greater flexibility as to the consequences of the stance of the parties would be introduced.  For example if they formally agreed and consented to the Chairman sitting alone this might be treated as an exercise of the discretion by an overt, or tacit, acceptance of the agreement, or in some circumstances the irregularity might be held to have been waived.

Our Decision and Approach

25	With respect to the members of this Tribunal who decided the Sogbetun case we do not accept or agree that a failure by a Chairman to exercise his, or her, discretion under s 4(5) Industrial Tribunals Act 1996:
	(i) 	goes to his, or her, jurisdiction, and 
	(ii)	has the result that the decision he, or she, reaches in the case when sitting alone is a nullity.  
In our judgment this conclusion does not accord with:

	(a) 	the structure of s 4 of the Industrial Tribunals Act 1996 and, in particular with the mandatory terms of the last part s 4(2), namely that “ --------------- the proceedings specified in subsection (3) shall be heard by the person mentioned in subsection (1)(a) alone” (our emphasis), and

	(b) 	the authorities referred to and applied in Secretary of State for Trade and Industry v Langridge [1991] Ch 402 (we note and take comfort from the fact that the case and the authorities referred to are not mentioned in the Sogbetun case and do not seem to have been taken into account by this Tribunal when deciding it).

26	In our judgment if a Chairman has a mandatory obligation to consider the exercise of the power conferred by s 4(5) Industrial Tribunals Act 1996, and thus to exercise his, or her, discretion thereunder, a failure to do so is an irregularity.

27	Albeit that we accept that there is force in the argument that a Chairman does not have a duty (and thus a mandatory obligation) to consider the exercise of the power, and thus to exercise the discretion, conferred by s 4(5) Industrial Tribunals Act 1996, we have concluded that as a matter of comity we should follow the Sogbetun decision in this respect.   We therefore proceed on the basis that the Chairman in this case had a duty (and thus a mandatory obligation) to exercise his discretion under s 4(5).

28	We comment that if there is not such a mandatory obligation questions arise as to whether in a given case a Chairman should have considered the point whether he, or she, should sit alone and if he, or she, should have considered what the consequences of a failure to do so would be.  In our view these are not easy questions.  If we did not follow the part of the Sogbetun decision that a Chairman has a mandatory obligation to consider the exercise of the power contained in s 4(5) Industrial Tribunals Act 1996 (and thus to exercise the discretion it confers) we would have to deal with these questions and would thereby reach a decision that adopts a different approach to the Sogbetun case.

29	It seems to us that conflicting decisions, or approaches, of this Tribunal on the nature of the task of a Chairman concerning the exercise of his, or her, discretion under s 4(5) Industrial Tribunals Act 1996 would be likely to cause damaging confusion.

30	We therefore proceed on the basis:
	(i)	that the decision of the Chairman in this case was not made without jurisdiction and was therefore not a nullity, but 
	(ii) 	the failure of the Chairman to overtly consider the exercise of his power under s 4(5) and thus to exercise his discretion thereunder was a failure to perform a mandatory obligation which although it does not go to jurisdiction does constitute an irregularity.

31	In our judgment without the benefit of hindsight this is a case in which the contribution of the Members of the Tribunal would be, or would be likely to be, of real assistance in the decision making process both as to:
	(a)	the resolution of the factual disputes, and
 	(b)	the construction of the collective agreement and its effect on individual contracts.

32	These views are confirmed by hindsight, which demonstrates that there were factual disputes.  These disputes may have been greater than expected but in our judgment the very fact that both sides attended with two witnesses shows that there was always a real potential that factual disputes would arise as to which the contribution of the Members of the Tribunal would be helpful.

33	In this case there was, as we understand it, no discussion or agreement during, or before, the hearing by the Chairman of the Employment Tribunal on the issue whether he should sit alone.  In those circumstances, having regard to:

(a)	our views expressed in the preceding two paragraphs (i.e. paragraphs 31 and 32) as to the likely contribution of Members of the Tribunal in the determination of this case, and

(b)	our view that the members of this Tribunal who decided the Sogbetun case were strongly of the opinion that in such circumstances a case in which a Chairman had not exercised his, or her, discretion under s 4(5) Industrial Tribunals Act 1996 should be remitted to a full Tribunal,

we have concluded that in comity with the decision and approach in the Sogbetun case we should remit this case for hearing by a full Tribunal.

34	In view of the arguments relating to, and the potentially far reaching effect of the Sogbetun decision,  we give leave to appeal and express the hope that if there is an appeal the issues as to the constitution of an Employment Tribunal, jurisdiction and generally the approach that should be taken in respect of the qualifying proceedings defined in s 4(3) Industrial Tribunals Act 1996 should be heard and determined by the Court of Appeal as soon as possible.