Appeal No.	 EAT/924/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 November 1997

Before
 THE HONOURABLE MR JUSTICE LINDSAY
MR R JACKSON
MR K M YOUNG CBE

MR C INTASEAN	APPELLANT

GLENTHORPE ENGINEERING CO	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS N INTASEAN
(Daughter)	

	MR JUSTICE LINDSAY:     On 21 October 1996 there was promulgated a decision of the Industrial Tribunal in the matter Intasean against Glenthorpe Engineering Co Ltd.

	There had been a hearing spread over two days in April and May 1996 of Mr Intasean’s application.  The matter was heard by the Chairman, Mr Teper, with two Members, Mr Patterson and Mr O’Connell.  Unfortunately, on the second day of the hearing, one of the Members (not the Chairman) was sick and the matter proceeded before only two, the Chairman and one Member.  

	It was a case in which Mr Intasean was claiming to have been constructively dismissed.  The decision was that Mr Intasean had not been constructively dismissed.  The last paragraph of the decision was that:

“The Tribunal reached the conclusion that the Respondent’s conduct, viewed objectively and taken as whole, did not disclose any breach of an express or implied term of the Applicant’s contract of employment which justified his treating the contract as repudiated by resigning.”

	That decision was met by Mr Intasean with a request for a review and on 24 October 1996 the first application for a review was declined by the Chairman alone.  He said:

“I refuse this application for a Review on the grounds that it has no reasonable prospects of success.”

	It is quite common for a Chairman, relying on that ground, not to state reasons but here the reasons were spread over several pages; it was a reasoned refusal of an application for a review.  Nonetheless, Mr Intasean was still unhappy with the matter and he sought for a second time that there should be a review and the second occasion was dealt with on 21 April 1997, when the Chairman (still, of course, Mr Teper) declined that application for a review, saying:

“I refuse this application for a Review on the grounds that it has no reasonable prospect of success.”

And again, although more briefly than before, reasons were given.

	Still Mr Intasean was unhappy and on 19 May, in the form of a letter which has been treated as a Notice of Appeal, there was an appeal against that refusal of 21 April.  It cannot be over-emphasised that all that is in front of us is an application, by way of appeal, against the second refusal of a review.

	The mechanism of reviews is dealt with in Rule 11 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 and reads as follows:

“11(1)  Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that -
(a)  the decision was wrongly made as a result of an error on the part of the tribunal staff; [that is not said]
(b)  a party did not receive notice of the proceedings leading to the decision; [that is not said]
(c)  the decision was made in the absence of a party; [that is not said]
(d)  new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing; [we do not think that is said] or 
(e)  the interests of justice require such a review. [I think that would be the ground which Mr Intasean would claim is the appropriate ground]

The sub-rule 5 says that:
“(5)  An application for the purposes of paragraph (1) may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success.”

And it is under that sub-rule (5) that the Chairman alone decided the matter on 21 April.

	So the question, in practical terms, is whether Mr Intasean has shown sufficient doubts, in relation to the decision of 21 April, that rather than being ruled upon as having no reasonable prospect of success, and hence being determined by the Chairman alone, it should properly go forward to a decision by the whole party, the whole three-men Industrial Tribunal, that originally heard the case.

	We have had real doubts on this subject.  The Chairman on 21 April said that none of the documents that the Applicant had submitted raised any new issues that fell within the ambit of Rule 11(1)(a) to (e) and he was satisfied that the review had no reasonable prospect of success.

	But there is an area which might just introduce some doubt into the matter and that is that on 20 October 1997 Mr Intasean, who has appeared today by his daughter, brought out a point which may have something in it and that point is this.  It was Mr Intasean’s case at the substantive hearing that he was overworked, so overworked that he was entitled to regard the amount of work expected of him as being in breach of the terms of his employment as between him and his employer, a breach such that he could regard himself as constructively dismissed.  The Industrial Tribunal undoubtedly found against that, but did they take everything properly into account?

	One of Mr Intasean’s complaints was, by way of supporting his basic case, that after he had left it the company had to take on more workers simply to do that which was expected of him and, during the hearing (at any rate so says Mr Intasean) in order that that point should properly be investigated, the Chairman ordered that the company should bring wages and deduction working sheets to the Tribunal.

	A company must plainly keep records, from which the number of its employees at any one time can be readily ascertained but it is Mr Intasean’s complaint that that was not done, but that rather summary sheets were produced in red writing that claimed that there were no relevant movements of staff.  If, - and we cannot underestimate the force that should be given to the “if”, - if, indeed, it is the case that the Chairman made an order for production of papers that was not obeyed by the company and yet inadequate other records were admitted, it could be that some glimmer of a possibility of success on Mr Intasean’s part could begin to appear.  Reverting to the very limited point which is before us (which, as we have emphasised, is simply whether there should be a full hearing by the EAT of whether the review of 21 April is such that it ought to be undone and be remitted afresh go to the three-men Industrial Tribunal) we, with some hesitation, decide that that limited question can go to a full hearing.  But it cannot be overemphasised, that we are not here concerned with the merits of the ultimate appeal; we are simply concerned with the merits of the declining of a review on 21 April.

	The question of whether there should be a full appeal as to the declining of a review on 21 April can go forward to a full hearing but at this stage our decision does not go beyond that.