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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Post Office v Howell [1999] UKEAT 1115_98_0111 (1 November 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/1115_98_0111.html Cite as: [1999] UKEAT 1115_98_111, [2000] ICR 913, [1999] UKEAT 1115_98_0111, [2000] IRLR 224 |
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At the Tribunal | |
On 22 July 1999 | |
Before
THE HONOURABLE MR JUSTICE CHARLES
MR J R CROSBY
MR D J JENKINS MBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellants | MR ANDREW BURNS (of Counsel) Instructed By: Mr M Hirst Solicitor The Post Office Legal Services Impact House 2 Edridge Road Croydon CR9 1PJ |
For the Respondent | MR IAN SCOTT (of Counsel) Instructed By: Mr S Auerbach Messrs Pattinson & Brewer Solicitors 30 Great James Street London WC1N 3HA |
MR JUSTICE CHARLES: This is an appeal from a decision of a Chairman of an Employment Tribunal at London South who sat alone on 11 March 1998.
The Stance of the Parties
The Sogbetun Case
(i) there are indications in the Tsangacos and Sutcliffe cases that this Tribunal might have taken a different view, and
(ii) in the Sogbetun case this Tribunal consider the merits of the appeal,
paragraphs 9, 13 and 14 of the judgment in the Sogbetun case are to the effect that:
(a) before he sits alone in the qualifying proceedings identified by s 4(3) Industrial Tribunals Act 1996 a Chairman must have exercised his discretion conferred by s 4(5) negatively (our emphasis),
(b) a case cannot be heard by a Chairman sitting alone without the matters referred to in s 4(5) having been evaluated by a Chairman,
(c) the consent of the parties is not determinative as to how the discretion of the Chairman concerning whether or not he, or she, should sit alone should be exercised,
(d) unless the Chairman exercises his, or her, discretion under s 4(5) an Employment Tribunal comprising a Chairman sitting alone that adjudicates on a qualifying case is not properly constituted in accordance with the statute,
(e) if the Employment Tribunal is not for that reason properly constituted its decision is a nullity, and
(f) the points as to the proper constitution of the Employment Tribunal, and its effect, are ones of jurisdiction and the parties cannot confer jurisdiction by consent, waiver, acquiescence or estoppel.
(i) the point at issue went to "jurisdiction", and
(ii) the decision of the Chairman sitting alone in the Sogbetun case was a "nullity",
this Tribunal was not intending to use those expressions in their technical sense. This view is supported by the fact that this Tribunal in the Sogbetun case went on to consider the merits of the case and whether it was just that the case had been heard by a Chairman sitting alone.
(a) is not authority for the proposition that a failure by a Chairman to consider whether or not he, or she, should sit alone goes to jurisdiction and renders his, or her, decision a nullity, but
(b) is authority for the proposition that a Chairman has a mandatory duty to consider whether or not to hear qualifying proceedings sitting alone and a failure to do so is an irregularity
questions then arise as to what the effect of the failure is in a given case.
Our Decision and Approach
(i) goes to his, or her, jurisdiction, and
(ii) has the result that the decision he, or she, reaches in the case when sitting alone is a nullity.
In our judgment this conclusion does not accord with:
(a) the structure of s 4 of the Industrial Tribunals Act 1996 and, in particular with the mandatory terms of the last part s 4(2), namely that " --------------- the proceedings specified in subsection (3) shall be heard by the person mentioned in subsection (1)(a) alone" (our emphasis), and
(b) the authorities referred to and applied in Secretary of State for Trade and Industry v Langridge [1991] Ch 402 (we note and take comfort from the fact that the case and the authorities referred to are not mentioned in the Sogbetun case and do not seem to have been taken into account by this Tribunal when deciding it).
(i) that the decision of the Chairman in this case was not made without jurisdiction and was therefore not a nullity, but
(ii) the failure of the Chairman to overtly consider the exercise of his power under s 4(5) and thus to exercise his discretion thereunder was a failure to perform a mandatory obligation which although it does not go to jurisdiction does constitute an irregularity.
(a) the resolution of the factual disputes, and
(b) the construction of the collective agreement and its effect on individual contracts.
(a) our views expressed in the preceding two paragraphs (i.e. paragraphs 31 and 32) as to the likely contribution of Members of the Tribunal in the determination of this case, and
(b) our view that the members of this Tribunal who decided the Sogbetun case were strongly of the opinion that in such circumstances a case in which a Chairman had not exercised his, or her, discretion under s 4(5) Industrial Tribunals Act 1996 should be remitted to a full Tribunal,
we have concluded that in comity with the decision and approach in the Sogbetun case we should remit this case for hearing by a full Tribunal.