Appeal No.	 EAT/432/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 September 1999

Before
HIS HONOUR JUDGE PETER CLARK
LORD GLADWIN OF CLEE CBE JP
MR J A SCOULLER

MISS R M CARRIER	APPELLANT

THE MERSEYSIDE POLICE AUTHORITY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	

	JUDGE PETER CLARK:	

1.	At all relevant times Miss Carrier, the appellant, was employed by the respondent Police Authority as Head of Staff and Employee Services in the Human Resources Directorate and was a member of the trade union, UNISON. Her employment was subsequently terminated on ill health grounds in October 1998.

2.	On 22nd November 1996 she presented an Equal Pay claim to the Liverpool Employment Tribunal. She was then represented by a full time UNISON official, Mr Tim Carter.

3.	On 24th April 1998 Mr Carter faxed the Employment Tribunal in these terms:

“I am pleased to be able to inform you that a local appeal was heard on 14 April 1998 which was successful, therefore, this case should be withdrawn at the request of the applicant.”

4.	As a result, on 29th April 1998, a Chairman, Mr D Reed, promulgated a decision dismissing the application on withdrawal by the applicant.

5.	On 12th October 1998 the appellant, having earlier sought advice from the Equal Opportunities Commission, applied for a review of that decision. The basis of the review application appears from that letter and was directed principally to the proposition that Mr Carter had withdrawn her Originating Application without her authority. However the letter foreshadows an argument that the employer had failed to implement in pay terms the outcome of the internal appeal heard on 14th April 1998.

6.	That application for review first came before Mr Reed on 14th December 1998. On that occasion he adjourned the hearing due to the absence of Mr Carter, until 26th January 1999 by a decision promulgated on 12th January 1999. A witness order was made for Mr Carter’s attendance at the resumed hearing.

7.	On 26th January 1999 Mr Carter attended before the tribunal and gave evidence. The Chairman found as a fact that during a conversation on the telephone on 24th April 1998, the appellant did indicate unequivocally that she wished to withdraw her complaint. In these circumstances the Chairman was not prepared to revoke the original decision. Further, he found that there was no fraud on the part of the respondent and that the appellant had given no satisfactory explanation for her delay in applying for the review until 12th October 1998. On that ground also he would not have been minded to revoke the original decision. That review decision, with reasons, was promulgated on 2nd February 1999. It is against that review decision that this appeal is brought.

8.	This is a preliminary hearing held ex parte to determine whether or not the appeal raises any arguable point or points of law to go forward to a full hearing.

9.	We begin by reminding ourselves of certain legal principles. First, a decision of an Employment Tribunal dismissing an Originating Application on withdrawal is a judicial decision, not merely an administrative act, giving rise, in the normal course of events, to a bar on further proceedings on the same cause of action. See Barber v Staffordshire County Council [1996] IRLR 209. 

10.	Secondly, a decision is capable of review under Rule 11(1)(e) on the grounds that the interests of justice require a review. This will normally arise in two categories of cases; first where there has been a procedural mishap; secondly, where the original decision has been undermined by events occurring shortly after it was given. An example of the first category is to be found in Harber v North London Polytechnic [1990] IRLR 198. There, the issue at a preliminary hearing was whether the applicant had sufficient qualifying service to bring his complaint of unfair dismissal. The Chairman asked his trade union representative whether she would be able to adduce evidence that the applicant had worked more than eight hours per week for the two years prior to the effective date of termination of the contract of employment. She said that she could not and then withdrew his application. The applicant then instructed solicitors who applied for a review of the Employment Tribunal’s decision dismissing the complaint on withdrawal. That application was dismissed and that review decision was in turn upheld by the Employment Appeal Tribunal.

11.	On further appeal the Court of Appeal set aside the review decision and directed that a review take place before a different tribunal. The Court held that the complaint had been withdrawn as a result of a mistake by the applicant’s representative induced by the Chairman asking the wrong question. The test was not what hours the applicant actually worked, but what hours did the contract of employment normally involve. In these circumstances the Court held that the interests of justice required that a review take place.

12.	In this appeal Miss Carrier first submits that the Chairman was wrong to find that Mr Carter had withdrawn her Originating Application with her authority. We have endeavoured to explain to her and we think she accepts that our powers on appeal are limited to correcting errors of law; we cannot reinvestigate factual issues determined by the Employment Tribunal. It seems to us that this is a case far removed from that of Harber. On the Chairman’s findings there was no mistake at the time when the Originating Application was withdrawn, which induced the appellant to give her authority for the action taken by the Mr Carter; and on the facts, he had her authority at that time to withdraw her application. We therefore reject that first ground of appeal.

13.	However, the matter is not, we think, as simple as that. Before the Chairman the appellant put in correspondence, which had been generated after the Originating Application had been dismissed on withdrawal. The effect of that correspondence, she submits, is to show that whereas her internal appeal was successful to the extent that on the points scale her grading was increased from 536 to 657 points, an acceptable result of the appeal hearing so far as she was concerned, in practice, when it came to translating that increase into her pay, she discovered that her pay increase was based on an increase in the points scale to 595 points rather than 657. That matter was the subject of correspondence between the appellant, her trade union representative and the Police Authority. It was never resolved to her satisfaction. As a result, having taken advice from the Equal Opportunities Commission, she made this application for a review by letter of 12th October 1998.

14.	We have investigated, as far as is possible at an ex parte hearing, the question of whether this point was taken before the Chairman. If it were not properly taken, then arguably, following Jones v Burdett Coutts School [1998] IRLR 521, it would not now be open to the appellant to take it on appeal. However, we think that is a matter which, if it is to be investigated, should be explored at a full appeal hearing.

15.	The other point which troubles us, is whether or not the Chairman dealt with the further material which was put before him as an application for review under Rule 11(1)(d) of the Employment Tribunal Rules of Procedure. Again, that is a point which we think dovetails with the principal point we have identified as being an appropriate one for full argument in this appeal.

16.	Finally, we have not lost sight of the Chairman’s alternative finding that no satisfactory explanation was given by the appellant for her failure to make the review application within the 14 days provided for by the Rules. However, we think that that is a point which will follow on from the principal point and which should also be considered at the full appeal hearing.

17.	In these circumstances, the appeal will proceed with a Category B marking for a half-day full appeal hearing. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. No further directions are required.