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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Reuben v London Borough Of Brent & Anor [1999] UKEAT 273_97_1409 (14 September 1999) URL: https://www.bailii.org/uk/cases/UKEAT/1999/273_97_1409.html Cite as: [2000] ICR 102, [2000] IRLR 176, [1999] UKEAT 273_97_1409 |
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At the Tribunal | |
On 9 February 1999 | |
Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR A E R MANNERS
MR R SANDERSON OBE
APPELLANT | |
MRS WISE ST LEDGER |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR A GUMBITI-ZIMOTO (of Counsel) Instructed By: Mr K McMahon Principal Litigation Officer Commission for Racial Equality Elliot House 10/12 Allington Street London SW1E 5EH |
For the Respondents | MR J DENNISS (of Counsel) London Borough of Brent Chesterfield House 9 Park Lane Wembley Middlesex HA9 7RW |
MR JUSTICE MORISON (PRESIDENT): This appeal raises a point of some importance in relation to the powers of the Employment Appeal Tribunal.
"The interruption by the Chairman...is one of many instances during the course of the hearing when the Chairman sought to dictate the way I presented the case in what was more than an interventionist approach. On two occasions he referred to an entirely separate Tribunal application where I had represented another applicant employed by the first respondent in a hearing before the same Chairman and in respect of which the applicant had lodged an appeal..."
"…in the absence of any reference to the comparative cases on which the appellant sought to rely below in the Industrial Tribunal's reasons, this Appeal Tribunal cannot properly adjudicate on the appeal without such Notes."
Having dismissed the application the learned Judge said this:
"However, it does seem to me that it would assist the Appeal Tribunal and the parties if a copy of …[the] affidavit...were sent directly [to] the Chairman, Mr Menon, for his comments. He should be asked to do so with our apologies for the short notice..."
An Order was made in these terms:
"…that the Chairman, Mr PRK Menon, do be asked for his comments, if any, on the affidavit ... bearing in mind that this appeal is listed for hearing on 3 March 1998."
"The Respondent appears to-day by counsel…He accepts that inevitably justice requires that the adjournment be granted; however, we raise with him the possibility that before this case returns to the list the time might usefully be spent by remitting the matter to the same Industrial Tribunal to amplify their findings and reasons in accordance with the practice laid down in Yusuf v Aberplace Ltd [1984] ICR 850, and in the following circumstances.
The nub of this appeal is that in their reasons the Industrial Tribunal do not deal with the Appellant's case below that he was unfairly dismissed and/or unlawfully discriminated against on the grounds of his race by reference to some ten comparable cases which were put before the Industrial Tribunal.
Having considered the Industrial Tribunal's reasons and the Chairman's letter dated 27 February 1998, and this course not being opposed by Mr Dennis we are satisfied that the reasons ought to deal with that part of the case but do not do so.
In these circumstances we shall adjourn and remit the case to the same Industrial Tribunal chaired by Mr Menon to amplify their reasons upon the question of comparative cases relied on by the Appellant…if that is not possible, it will be open to the Chairman to direct that the parties return to the Industrial Tribunal for evidence to be given and/or representations to be made, limited to the comparator issue."
"The six cases which the Tribunal did consider and take into account in reaching its decision bore a superficial similarity and were relevant to the issues in the present case. Those cases were thoroughly examined and analysed by the Tribunal and the range of disciplinary sanctions, if any, were noted. The Tribunal also considered Mr Barber's submissions in relation to those cases. Having given careful consideration, the Tribunal formed the view - and having looked at those cases again on 18 May - the Tribunal maintains that view, i.e., the Respondent's actions of dismissal in the present case was within the range and band of reasonable responses open to a reasonable employer in all the circumstances of the case. The Tribunal did bear in mind that it is important to look at comparative evidence and that no two cases are likely to be identical. It has, however, also got to be borne in mind that because the employer did not impose a sanction of dismissal in a particular case, it did not necessarily follow that he would be automatically acting unfairly if he were not to impose that sanction in another similar case."
"…in my respectful opinion an appeal to the Employment Appeal Tribunal should be decided upon the Industrial Tribunal's reasons as originally drafted, and I deprecate any procedure whereby these may be supported or enlarged by any direct communication between the Industrial Tribunal on the one hand and the Employment Appeal Tribunal on the other."
It seems to us quite clear that Yusuf was wrongly decided. It is the Employment Tribunal's function to give a decision in accordance with their Rules of Procedure. The decision, once given, is promulgated to the parties and entered in the Register. The Register contains all promulgated decisions and is open to public scrutiny. Apart from correcting any error under the slip rule [which correction would be added to the Register] once a decision has been entered in the Register, the Employment Tribunal is functus officio. If it became aware that an appeal had been made, it would be quite improper for the Tribunal to seek to comment on the grounds of appeal or try and improve the decision or to fill in gaps. The only circumstances in which a Tribunal may make comment is when there is an allegation of bias. The tribunal's views are, in such an event, being solicited to establish facts relating to the conduct of the hearing and not in relation to the terms of the decision itself. Those comments are expressly sought by the EAT so that it can adjudicate upon the allegation of bias. The other circumstance in which a tribunal chairman may be asked to do something after the decision has been made is to provide the record of the proceedings, namely his Notes of Evidence. Where there have been many days of hearing and the notes are likely to be extensive, limited notes may be asked for.