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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Armstrong v Devon County Council [2001] UKEAT 1211_95_0404 (4 April 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1211_95_0404.html Cite as: [2001] UKEAT 1211_95_404, [2001] UKEAT 1211_95_0404

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APPEARANCES

 

For the Appellant	MR T KIBLING (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR RECORDER LANGSTAFF

1. We have before us, a Preliminary Hearing in an Appeal against a decision made by a Chairman on his own, in respect of a case brought by the Appellant against his former employers.
2. On 12 May 1997 the Chairman having been invited to review a decision which had been reached on 31 October 1995 declined to do so. We think that there is an arguable point of law in this Appeal which ought to have the benefit of Inter Partes Hearing. We say that without any particular enthusiasm but we shall explain our reasons so that they are clear.
3. The history began on 24 July 1995 when the Appellant entered an Originating Application alleging that he had been discriminated against on the ground of sex. He had been replaced by a female teacher on his Tuesday evening computer class course.
4. Following a Respondent's notice on 5 September 1995 the matter came before the Chairman on 31 October 1995 by way of a Preliminary Hearing. At that hearing Mr Armstrong was ordered to pay a deposit of £100 as a condition of continuing with his case.
5. Extended reasons for that decision were given on 2 November 1995 and on 6 November Mr Armstrong applied for a review. That review raised a number of issues, amongst them that he had since the hearing come into the possession of evidence which was fresh and which might have made a difference. On 9 November that Application was refused.
6. On 14 November Mr Armstrong issued a Notice of Appeal to the Employment Appeal Tribunal. Three days later, on 17 November proceedings were stayed. On 4 December 1995 the Appeal against the decision of the Preliminary Hearing was dismissed by this Tribunal differently constituted. On 15 December but not before, the Appellant was told that that Appeal was dismissed. On 18 December that Appeal having been dismissed, and the stay of proceedings having been until 14 days after the Appeal had been resolved, the Tribunal struck out his claim under the Sex Discrimination Act. There had been no hearing on the Notice. No deposit had been paid.
7. Thereafter, a number of attempts have been made to seek a review both of the decision of 4 December 1995 by which the Appeal against the hearing of 31 October was dismissed and in respect of the decision in relation to 31 October itself. Central to those applications has been the fact that the Appellant seeks to put before a Tribunal a document which was produced in April 1995 by the RSA Examinations Board and which he says gives the lie to the reason that the Respondents had put forward for not affording him the opportunity of continuing to teach the Tuesday course.
8. The question whether that document constitutes fresh evidence which ought to be admitted within the well-known principles of Ladd v Marshall (applied in the Employment Tribunal's sphere by the case of Wileman v Minilec Engineering Limited (1988) IRLR 144 at 147) has never been examined.
9. In early spring 1997 Mr Armstrong made a further application for a review by the Chairman of the decision of 31 October. The reasons given by the Chairman for refusing that review were these: first he had already refused a review. Secondly, that an Appeal against the Order made in the Preliminary Hearing had been dismissed. Thirdly, that the striking-out of the claim for non-payment of the deposit had itself been appealed and that Appeal too had been dismissed.. Accordingly, said the Chairman, the Tribunal was functus officio.
10. Finally, he regarded it as entirely inappropriate that he should attempt to interfere in a case proceeding in the Court of Appeal against the decision of the Employment Appeal Tribunal.
11. Before us, Mr Kibling who has appeared under the ELAAS Scheme and for whose submissions we are grateful has dealt with the matter as one purely of law and purely relating to the question whether or not the Chairman properly exercised his discretion. Since he gave reasons, those reasons can be examined to see whether they stand up.
12. Mr Kibling argues that the refusal of the review in November was not a good reason for refusing this review because this review is based upon different evidential material of some cogency. We think there is something in that.
13. Secondly, he argues that a Tribunal is not functus officio simply because the proceedings have been struck out and on that he has the support of the case of Aparau to which he refers in the skeleton.
14. Thirdly, he thinks it is questionable that a Chairman would by having a review be interfering a Proceedings before the Court of Appeal.
15. Fourthly however, and perhaps more fundamentally, the first issue perhaps to which the Chairman might have addressed his attention was the question of whether or not the application for a review had been made within time. Although time might be extended there would have to be an exercise of discretion to do so.
16. On the face of it by rule 11(4) of 1993 Rules an application by a litigant had to be made no later than 14 days after the date on which the decision was sent to the parties. This one, as the history shows, most certainly was not. It would have been open, we think, to the Chairman simply to have said that it was too late and he was not going to extend time. A decision expressed in that way, we think, would be unchallengable.
17. However, he did not address the question of time. We doubt there is force in Mr Kibling's argument that the Chairman should have considered the substance of the matter because we think it at least arguable that the first question that he ought to have considered was that of time. But these matters are all matters of argument and it is not for us to determine them because this is a Preliminary Hearing.
18. Suffice it to say that there is here an arguable case that the Chairman may not have exercised his discretion upon proper grounds. That is a matter of law and that is something for a full tribunal to determine.
19. We have been urged by Mr Kibling to consider whether we ought to stay the proceedings pending his client's returning to the Chairman and inviting the Chairman to consider again whether he may or may not entertain a review and whether he should or should not extend time to do so.
20. We do not think that the stay is necessary for that purpose if that is what Mr Armstrong thinks it is appropriate and sensible to do. For reasons which we have expressed at rather greater length than normal given the history of this case we shall allow this Application in the sense of saying it is fit for hearing before a full tribunal. It will take, we think, 2 hours. Skeleton arguments addressing the issues as we have described them in this judgment should be provided at least 14 days before the hearing together with a copy of any authorities to be relied upon. We would ask that economy be exercised in the choice of authorities. It will be listed as a Category B case.