Appeal No. EATS/0042/03

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 28 November 2003

 
Before
THE HONOURABLE LORD JOHNSTON
DR A H BRIDGE
MISS G B LENAGHAN

 

ABBEY BUSINESS CENTRES LTD	APPELLANTS

 

 
NORMAN D HOWISON	RESPONDENT

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

	APPEARANCES

 

For the Appellants	Mr R McKenzie, Solicitor
Of-
Messrs Harper Macleod
Solicitors
The Ca’d’oro
45 Gordon Street
GLASGOW   G1 3PE

 

For the Respondent

 

 

 

Mr S Miller, Solicitor
Of-
Messrs Macroberts
Solicitors
152 Bath Street
GLASGOW   G2 4TB

 

LORD JOHNSTON:
 
1.	This appeal arises in a somewhat unusual way.
 
2.	The respondent employee submitted a claim to the Employment Tribunal, consequent upon the termination of his employment with the appellants, both in respect of an allegation of unfair dismissal and a claim for unlawful deduction of wages, the latter being concerned with a claim for bonus or share profits to which he maintains he was entitled under his contract of employment.
 
3.	As a matter of procedural history, the appellants more or less contemporaneously with the service of the Notice of Appearance, applied to the Employment Tribunal for a preliminary hearing on a question of jurisdiction, and or, competency, in relation to the latter claim.  Apparently, a Chairman determined the matter, but his decision was never intimated to the appellants.  Accordingly, the parties presented themselves for a hearing in November 2002, apparently with the solicitor for the appellants, Mr McKenzie, anticipating he was going to be able to make a preliminary argument in bar of the claim for unlawful deduction, while the solicitor, then representing the respondent, assumed he was going to undertake a full hearing of the evidence.
 
4.	What then appears to have happened, is, that Mr McKenzie opened his submissions on the competency issue, and these were entertained initially by the Chairman.  However, upon being informed by the solicitor for the respondent that he was not in a position to answer or counter these arguments, the Chairman, without further ado, adjourned the matter to a full hearing on both issues.  It is against that decision that the appeal is now taken by the respondents.
 
5.	Mr McKenzie submitted that when a proper issue of jurisdiction was focussed, proper procedure required it to be addressed by a preliminary hearing and he made reference to a number of authorities which would not dispute that fact in general circumstances.  Since he initially had been denied the opportunity for a preliminary hearing, what, he submitted should now happen, was that the matter should be remitted back for a single hearing before a differently constituted Tribunal which should determine the competency issue as regards the unlawful deduction of wages and the merits issue on unfair dismissal.  He strenuously objected to any notion that there should be a hearing on the merits of the unlawful deduction claim, which, on a proper reading of the Employment Tribunal’s decision, it had also ordered.
 
6.	Mr Miller, appearing for the respondents, submitted that the matter was essentially one of discretion for the Tribunal which should not be interfered with by this Tribunal, except in very exceptional circumstances.  In any event, the hearing that was scheduled for November had been a full hearing and it would not have been competent for the Tribunal to have treated part of it as a preliminary hearing.  While he accepted what had happened was unfortunate, the appropriate course was to adhere to the orders of the lower Tribunal.
 
7.	It is apparent to us at once, that the problems here are entirely of a procedural nature, inasmuch that we will not determine the issue of competency or jurisdiction at this stage.  That still requires to be considered by the Employment Tribunal with appropriate argument.  However, we recognise that under Regulation 10 of the Employment Tribunals (Constitution and Rules of Procedure (Scotland) Regulations 1993) the Tribunal must have regard amongst other things to the overriding interests of the parties, and, having regard to the fact that the Tribunal can regulate its own practice, we consider that what actually happened was an appropriate thing for the Tribunal to do, at least to the extent that we will not interfere with it.  The time had passed for the application of the usual Rules with regard to the preliminary issues to be determined as such, and, in this respect, we take no comfort from the cases which deal with this matter looking at it ab initio.
 
8.	The matter which caused us the most difficulty, is whether the hearing still to be heard, should also include the merits of the unlawful deduction claim.  We see no reason why it should not, although Mr McKenzie sought to argue that there might be prejudice to him.  If such develops, the matter can be reviewed.
 
9.	In these circumstances, technically, this appeal will be refused, but having regard to the fact that we consider the matter should go to a freshly constituted Employment Tribunal, we will allow the appeal to that extent and remit the matter to such a Tribunal to consider, firstly, the issue of competency in regard to the unlawful deduction claim, secondly, the merits of such, if appropriate, and, thirdly, the unfair dismissal claim, also on the merits.
 
10.	Mr Miller sought an order for costs, but, given the chapter of accidents in this case, we do not consider this is appropriate, and we will refuse the application.