Appeal No. EAT/192/92
			EAT/244/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 4 February 1992

	Before

	THE HONOURABLE MR JUSTICE KNOX

	MR J R CROSBY

	MR J D DALY

MR E ARIS	APPELLANT

WAGSTAFF BROS LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J MORGAN
(OF COUNSEL)
Messrs McMillan Williams
Solicitors
19-23 Shrubbery Road
London SW16 2AS

For the Respondents	NO APPEARANCE BY OR
ON BEHALF OF THE RESPONDENTS

	MR JUSTICE KNOX:  There are two appeals before the Tribunal in proceedings brought by Mr Aris against Wagstaff Bros Ltd, in the Industrial Tribunal at London South, the claim being one for a redundancy payment.  The two Decisions from which the appeals are brought are first, one on 27 January 1992, when the Industrial Tribunal held that it had no jurisdiction to dispose of Mr Aris's claim having regard to the time limit in section 101 of the Employment Protection (Consolidation) Act 1978, and the other was a Decision of the Chairman of that Tribunal given on 2 March 1992, refusing an application for a review of the first Decision, the application for review having been made in a letter dated 10 February 1992.  It will be convenient to deal with them in that order, that is to say, the appeal against the Decision first and against the refusal of the review second.

	The originating application by Mr Aris stated his dates of employment, claimed by him, as starting in October 1983 and ending on 12 September 1989, and it sets out that there had been a dispute between Mr Aris and his employers as to his status as assessable to tax under Schedule D or Schedule E,  Mr Aris's understanding being that he was under Schedule E and therefore subject to tax by PAYE and his employers contending the contrary and that he was self-employed.	We are not directly concerned with that aspect of the matter at this stage.

	The claim finishes, in the originating application with the paragraph:
"Notice of my intention to apply for redundancy was given by my Solicitors to the Wagstaff Group of Companies, who were previously called Langham Office Equipment, on the 10th October 1989, one month after I was made redundant and within the time limit prescribed the Employment Protection (Consolidation) Act 1978.  A copy of that letter is attached to this application together with a letter of adjudication from the Inland Revenue."
	There were Solicitors given on the face of that originating application as being Mr Aris's representatives, McMillan Williams of Thornton Heath, Surrey.

	The originating application was presented on 25 July 1991 and there is, of course, no three month time limit in regard to that because it was governed, so far as time was concerned, by the provisions of section 101 of the 1978 Act, the relevant provision being section 101(1)(b) which reads as follows:
"(1)  Notwithstanding anything in the preceding provisions of this Part, an employee shall not be entitled to a redundancy payment unless, before the end of the period of six months beginning with the relevant date-

(b) the employee has made a claim for the payment by notice in writing given to the employer, "
	The relevant date is not a matter of significant dispute.  It appears to have been agreed at being 12 September 1989, but if in fact a claim was made, as claimed in the originating application, on 10 October 1989 there is no doubt that it was made within the permitted 6 month period.

	The next event was that a notice of appearance was put in by Wagstaff Bros Ltd, and I interpose that there is no agreement between the parties over the preceding years before Mr Aris's cesser of employment, on the exact identity of his employers or the basis on which he was employed but that again is not a point with which this hearing is directly concerned.  What is material in the notice of appearance, which was received by the Regional Office of Industrial Tribunals on 12 August 1991, is these two paragraphs:
"The photocopy of a letter dated 10th October 1989 which purports to have been written to Langham Office Equipment was never received, and it can be proved was not written on McMillan Williams headed paper.

This matter is a tissue of lies from start to finish.  Our view is that it is not a problem for an Industrial Tribunal to consider, and in any case is outside the timescale permitted."
	No doubt on receipt of that notice of appearance it occurred to the Industrial Tribunal Chairman that there was a fairly obvious preliminary point which needed to be cleared out of the way, whether or not the application was within the permitted time limits under section 101(1).  There was, it will have been appreciated, quite a significant gap between the termination of Mr Aris's work as an upholsterer in September 1989, and the presentation of the originating application.

	Accordingly, the Regional Office of Industrial Tribunals wrote to the parties, or their solicitors, in the case of Mr Aris to his solicitors who were on the record in the originating application, saying that notice was given that Mr Aris's originating application had been listed for a preliminary hearing on 27 January 1991, and that the hearing would be limited on that occasion to the following preliminary issue:
"whether, having regard to the time limit contained in section 101 of the 1978 Act, a Tribunal has jurisdiction to consider the Applicant's complaint of redundancy."
  That was received by both parties and the hearing took place on 27 January 1992, (there was a misprint in the letter fixing the time for 27 January 1991, which had long since passed but no-one was deceived by that).  There was no appearance before the Industrial Tribunal on behalf of the employer company, nor indeed has there been an appearance before us today by the employer company but on both occasions there was written material before the Industrial Tribunal and before us containing the case, and in our case the arguments, advanced on behalf of the Respondent on each occasion.

	Mr Aris, although he had had solicitors at the earlier stages, appeared in person before the Industrial Tribunal and he failed to tell the Industrial Tribunal that he had not received, and his solicitors had not received, form IT3 (the notice of appearance) and he did not ask for an adjournment when he was faced with the question, whether there really was satisfactory proof of the claim for a redundancy payment having been made on his behalf within the permitted period.  That turned entirely on whether the letter that was relied on in the originating application was both genuine and sent on the date when it was said to have been sent.  It appears that he came with a photostat copy of a draft that had been kept of the letter and another copy of which was annexed to the originating application.

	In those circumstances the Industrial Tribunal dealt with the matter effectively in one fairly short paragraph which reads as follows:
"3	The Respondent which was not represented before the Tribunal maintained in its Notice of Appearance that the photocopy of the letter dated 6 October 1989 which purported to be a Notice to Langham Office Equipment under Section 101(1)(b) of the 1978 Act was never received by it and put the Applicant to proof that it was typed on the letter heading his solicitors, McMillan Williams and sent by them.  Although clearly put on notice the Applicant was unable to prove the authenticity of this document or that it was sent to the Respondent on the date he claimed."
	The notice of appeal in relation to that Decision claims to identify three errors of law in the conclusion.  We have been quite unable to find any faults in that Decision when one has regard, as one has to, to what was said, or rather not said, to the Industrial Tribunal.  In particular what eventually was challenged at a later stage were the words "Although clearly put on notice" which found their way fairly clearly into the Industrial Tribunal's Decision on the basis that the parties cases were put in the originating application and notice of appearance respectively, and anyone reading those two documents could see quite clearly that there was a disputed issue as to the authenticity and sending of the letter in October 1989, -whether it was the 6 or 10 October is neither here nor there.

	In those circumstances it is not, in our view, necessary to analyse any more closely the claimed errors of law in the notice of appeal in this regard.  This appeal fails and is dismissed.  However, that only deals with half the case, perhaps the less important half.

	We now come to the other appeal which is the appeal against the decision to refuse a Review.  When the Decision on the preliminary point, that effectively Mr Aris's claim was out of time, was sent to the parties, which it was on 5 February, there was a quite prompt reaction by Mr Aris's solicitors who wrote a letter dated 10 February 1992 in which they said this notably:
".......we write to give you Notice that we require a review of the Tribunal's decision dated 27th January 1992.

The grounds for the application for review are:-

1.The Applicant was unrepresented on 27th January, when a matter of law (i.e. jurisdiction) was at stake.

2.Paragraph 3 of the Tribunal's written decision refers to a Notice of Appearance filed by the Respondent.  No copy of the Notice of Appearance was ever received by the Applicant or by ourselves as his solicitors, and the Applicant therefore had no notice that the Respondent disputed having received the letter dated 6th October 1989."
	The Industrial Tribunal Chairman refused a Review in a brief Decision, as is common on these occasions, saying so far as is relevant:
".....I refuse the application for a Review made by the applicant in a letter dated 10 February 1992 on the grounds that it has no reasonable prospect of success.

	REASONS

The application contains no grounds for reviewing the Decision within the criteria set out in paragraph 10(1) of Schedule to the Industrial Tribunals (Rules of Procedures) Regulations 1985."
	The paragraph in question in the Rules reads as follows and I omit irrelevant paragraphs:
"10 (1) A tribunal shall have power to review and to revoke or vary by certificate under the chairman's hand any decision on the grounds that-

(d)new evidence has become available since the conclusion of the hearing to which the decision related provided that its existence could not have been reasonably known of or foreseen; or

(e)the interests of justice require such a review."
	We have had an application to us to admit an Affidavit which has lately been sworn by the gentleman who was responsible, in Mr Aris's solicitor's office, for drafting and preparing the letter that was in issue before the Industrial Tribunal, the letter of October 1989.  We declined to allow that to go into evidence before us on the hearing of this appeal because it was not relied upon in the application for a Review.  It certainly would appear to us that the application for a Review would have carried more weight had it been included, but that is water under the bridge.  What we have to determine is whether, on the material before him, the Chairman of the Industrial Tribunal was in error in law in refusing the application for a Review.  It is, in our view, quite irrelevant that there was in the background some available evidence regarding the authenticity and due sending of the letter of October 1989, when no reliance was placed upon that aspect of the matter in applying for the Review.

	We mention in passing that equally we have not admitted in evidence an Affidavit that was included with the papers that were submitted on behalf of the employer company, an Affidavit of a Mr Gordon Ansell, now Managing Director of Wagstaff Bros Ltd, which is directed at the question, whether or not Mr Aris was an employee within the meaning of that expression for the purposes of the 1978 Act.  That is equally immaterial to the issue that we are concerned with that was specifically limited by the Industrial Tribunal in convening the preliminary hearing to the issues regarding the time limit i.e. section 101.  We therefore have to deal with this matter without regard to either of those two proposed pieces of Affidavit evidence.  

	The question thus resolves itself into one, whether there really were grounds within the two paragraphs that I have read from Rule 10 of the Industrial Tribunal Rules so that the Decision of the Chairman that "the application contained no grounds for reviewing the Decision", contained an error of law.  We have come to the conclusion that there are indeed, on the face of the application for Review, grounds for reviewing the Decision.  We are not, of course, saying what the result of the Review would be but we are persuaded that the existence of a solicitor's letter to the effect that the notice of appearance was not received by them, or by their client, is a ground upon which it would be proper to consider the need for a Review.  

	We do not take the view that the presumption with regard to service, that is raised by section 7 of the Interpretation Act 1978 concludes this matter because what matters is not so much whether there was effective service as whether there was notice sufficient to alert Mr Aris to the dispute regarding the authenticity and sending of the letter of October 1989.  We are persuaded that the fact that this came as a surprise to Mr Aris does constitute a significantly material new feature such as, at any rate, to require the proper consideration of a Review.  In so doing we are treating the conception of "new evidence" whose existence could not have been reasonably known of or foreseen, as capable of including evidence which was of a matter whose materiality was not foreseen at the time.  

	The case to which we were referred in support of that extended meaning is Oliver v J P Malnick & Co [1983] ICR 708, where there was an unexpected point taken at the hearing before the Industrial Tribunal, in respect of which this Employment Appeal Tribunal, allowed further evidence to be put before it although that evidence, which was in fact of the Law Society's practice in relation to the Articles of Articled Clerks, was obviously available at all material times.  However, its relevance was not appreciated.  Although we take account of the fact that this is a case near the boundary because there were features which could well be argued to have put Mr Aris's solicitors on notice,  nevertheless, it does seem to us that the unexpected feature of the challenge in IT3 was something which, as a matter of practical politics, needed looking at afresh. 

	The matter that we referred to as being ones which might have well put Mr Aris's solicitors on their guard are that there was sent a notice of a preliminary hearing which could well have properly triggered a request to be told whether or not there was a notice of appearance, because it requires no great imagination to see that an Industrial Tribunal is not likely to raise a preliminary issue on such a matter as section 101 of the 1978 Act, unless there appears to be some issue between the parties on the subject but, in fact, there was no request to be given a copy of IT3.

	However, those are only matters that we have, in fact, taken into account in arriving at the conclusion that we have reached, which is that this is a case where, first of all, there is, in our view, an error of law in that there were some grounds for reviewing the Decision, and  secondly, that, on balance, it would be right as a matter of practical politics for there to be a Review given that there is, and has been since the 10 February 1992, evidence that the form IT3 (the notice of appearance) did not carry.

	What we therefore order on this appeal is that the appeal be allowed and that the matter be referred back to the Industrial Tribunal to conduct a Review.  We express no views on what the result of that Review should be nor do we give any directions how and to what extent further evidence should be admitted on that Review - that will be a matter best dealt with by the Industrial Tribunal itself.