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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> HM Prison Service v. Gundill [2002] UKEAT 1375_00_2201 (22 January 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/1375_00_2201.html Cite as: [2002] UKEAT 1375__2201, [2002] UKEAT 1375_00_2201

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APPEARANCES

 

For the Appellant	MR RAYMOND HILL (Of Counsel) Instructed by: Mr A Smeath The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS
For the Respondent	MR TARIQ SADIQ (Of Counsel) Messrs Lees Lloyd Whitley 6th Floor Castle Chambers 43 Castle Street Liverpool L2 9TJ


 


MR RECORDER BURKE QC

1. This is an appeal by Her Majesty's Prison Service against the decision of the Employment Tribunal, sitting at Hull on 10^th October 2000 and sent to the parties with Extended Reasons on 19^th October of that year. By that decision the Employment Tribunal refused the employer's application for a review of their own decision, promulgated on 8^th May of that year, awarding to the employee, Mr Gundill, £11,439 as compensation for unfair dismissal. The Prison Service maintains that the Tribunal was wrong in law to refuse the review which was sought.
2. The history can be shortly stated. Mr Gundill was employed by the Prison service for 28 years at Hull Prison as a Dog Handler. He was dismissed in May 1999 while away from work on long-term sickness. By the date of his dismissal, as the Tribunal found in circumstances to which we shall come, he was, because of the length of his illness, only contractually entitled to sick pay at the reduced rate which would have been the rate of his weekly pension, had he been retired. That rate, called the "pension rate", was a rate of £170.58 per week as opposed to his ordinary contractual pay, if he had not been off sick, of £1434 net per month or about £350 per week net. He claimed that his dismissal was unfair; and on 14^th February 2000 the Employment Tribunal upheld his claim.
3. On 28^th April of that year there was a Remedies Hearing. The Tribunal, with the same Chairman and lay members as on the occasion of the finding of unfair dismissal, found that Mr Gundill, if not dismissed when he had been, would never have returned to work and that his employment would have been properly and fairly terminated a further sixteen and a half weeks after his actual dismissal. The first twelve weeks of that sixteen and a half week period would have been the notice period to which he would have been contractually entitled.
4. The Tribunal awarded him compensation calculated at the full contractual rate for the twelve weeks of his notice period and at the pension rate for the remaining four and a half weeks. They made the standard award of £200 for loss of statutory rights and awarded an agreed sum as the basic award.
5. At the remedies hearing there had been an issue as to whether Mr Gundill would have been contractually entitled to pay at the full rate, if he had not been dismissed as he was, in the period between the dismissal and either the end of the notice period or the end of the period of sixteen and a half weeks, it matters not which. Mr Sadiq, on behalf of Mr Gundill, relied on a contractual term to that effect. The Prison Service did not agree. The Tribunal plainly, in its remedies decision, rejected Mr Sadiq's submission and decided that Mr Gundill would not have been entitled contractually to the full rate of pay during the relevant period.
6. The reason for the Tribunal's award of compensation during the twelve week notice period at the full contractual rate of pay rather than at the pension rate which, it is now agreed, is all that Mr Gundill would have actually received during that period is set out in the Tribunal's decision. It is that the Tribunal applied Section 88 of the Employment Rights Act 1996 which provides, putting it briefly, that if an employee has normal working hours under his contract of employment, during a notice period he is entitled to be paid as if he had worked those normal working hours if he is in fact incapable of work during a period of sickness or injury. The Tribunal made it clear when giving a brief oral judgment at the conclusion of the remedies hearing that that was the basis on which they were acting in awarding compensation at the full rate during the notice period; and that is clear, too, from paragraph 3 of the Tribunal's Extended Reasons.
7. It is common ground that, during the hearing, and up to the moment of the Tribunal's oral announcement of its decision, no reference had been made to Section 88 of the Employment Rights Act by Mr Hill, Counsel for the Prison Service, by Mr Sadiq, Counsel for Mr Gundill, or by the Tribunal. No-one was expecting the Tribunal to apply Section 88 to this case or, as is clear to us, had any idea that they might, or would, do so. Mr Sadiq did not invite the Tribunal to do so or refer to Section 88; and Mr Hill did not mention it either, it having not been raised.
8. In fact Section 88 does not apply, and did not apply, in Mr Gundill's case. It did not apply by virtue of Section 191(2)(d) of the Act which limits to certain sections of the Act, which do not include Section 88, the application to Crown employment of Part IX of the Act, that being the part in which Section 88 falls. Mr Sadiq accepts, as did the Tribunal on the application for a review, that Section 88 did not apply to Mr Gundill's case by virtue of Section 191 and that the Tribunal had made an error of law in relying on Section 88. Mr Hill did not immediately appreciate the mistake. Whether Mr Sadiq did or not, we do not know; but there is no indication that he did.
9. After the oral announcement of the decision the Tribunal broke up. Mr Hill, on behalf of the Prison Service, checked the provisions of the Act and realised, when he did so, that the Tribunal had made the mistake of law which we have described. He decided that the proper course was to proceed by way of a request for a review of the decision; and, within ten days of the promulgation of the written reasons for the decision being sent to the parties, the Treasury Solicitors applied to the Tribunal for a review.
10. In their application they set out what had happened and explained why in law Section 88 did not apply. They pointed out that the applicability of Section 88 had never been suggested in the course of the hearing and, therefore, that Mr Hill, on behalf of the Prison Service, had had no opportunity to address the Tribunal upon it. In effect, though not in terms, they asked the Tribunal for a review on the grounds set out in Rule 11(1)(e) of the then Employment Tribunal Rules, namely that the interests of justice required a review. This application was resisted on behalf of Mr Gundill.
11. On 10^th October 2000 the Tribunal considered the employer's application and rejected it. They accepted that they had fallen into error in applying Section 88, as we have already said; however they refused a review for the following reasons, which we summarise. Firstly, it was inevitable, said the Tribunal, that at the remedies hearing the question of payment during the notice period would arise and Section 88 applies to the vast majority of cases. We take the Tribunal to have been expressing the view that those acting for the Prison Service ought to have seen section 88 coming.
12. Secondly, one of the members, said the Tribunal, had raised before the luncheon adjournment a question as to whether Mr Gundill was entitled to full pay during the notice period and the Prison's Personnel Manager said that telephone calls would be made. Indeed, we are told that they were made and the response was that he was not so entitled.
13. Thirdly, the Tribunal drew attention to the fact that Mr Hill accepted, or admitted to them, that he had only thought of Section 191 ten minutes after the close of the proceedings. The Tribunal concluded that it seemed odd that the Tribunal was not offered the appropriate guidance at that point. The Tribunal seems to have thought that Mr Hill should either have protested to them immediately after the oral decision or sought to reassemble the Tribunal when he realised the mistake the Tribunal had made - or both.
14. Despite the able submissions of Mr Sadiq before us, we unanimously conclude that in rejecting the application for a review the Tribunal came to a conclusion which could not properly have been reached by a reasonable Tribunal and that it erred in law.
15. There is no doubt that a Tribunal has a wide discretion in deciding whether to grant, or not grant, a review. The power to grant a review is one which should be exercised cautiously having regard to the interests of finality, of time and expense to the parties and of the public. Those interests all point away from the ready grant of a review. In Flint v Eastern Electricity Board [1975] ICR 395 Phillips J said at page 404H – 405B, having earlier set out the importance of considering the various interests to which we have referred,

"But over and above all that, the interests of the general public have to be considered too. It seems to me that it is very much in the interest of the general public that proceedings of this kind should be as final as possible; that it should only be in unusual cases that the employee, the applicant before the tribunal, is able to have a second bite of the cherry. It certainly seems to me, hard though it may seem in the instant case, that it would not be right that he should be allowed to have a second bite at the cherry in cases which are perfectly simple, perfectly straight forward, where the issues are perfectly clear and where the information that he now seeks leave at a further hearing to put before the tribunal has been in his possession and in mind the whole time. it really seems to me to be a classic case where it is undesirable that there should be a review".

In Lindsay v Ironsides Ray & Vials 1994 IRLR 318 the Employment Appeal Tribunal, presided over by Mummery J, said that the failings of a party's representative do not generally constitute a ground for review. Mr Sadiq relies on both of these authorities in support of the Tribunal's conclusion.

16. Both of those cases were demonstrably cases in which there had been a failure on the part of the party seeking a review, or the representative of that party, to address properly a point which it had had an opportunity to address during the course of the hearing; the comments made by Phillips J and the Employment Appeal Tribunal were plainly made in that context.
17. In Trimble v Supertravel Ltd [1982] IRLR 451, the Employment Appeal Tribunal chaired by Browne-Wilkinson J, again in a case in which the issue was whether the Tribunal had correctly exercised its discretion in relation to the grant of the review, said in paragraph 7 of their decision;

"We do not think that it is appropriate for an Industrial Tribunal to review its decision simply because it is said there was an error of law on its face. If the matter has been ventilated and properly argued, then errors of law of that kind fall to be corrected by this Appeal Tribunal. If, on the other hand, due to an oversight or some procedural occurrence one or other party can say with substance that he has not had a fair opportunity to present his argument on a point of substance, then that is a procedural shortcoming in the proceedings before the Tribunal which, in our view, can be correctly dealt with by a review under Rule 10 however important the point of law of fact may be. In essence, the review procedure enables errors occurring in the course of the proceedings to be corrected but would not normally be appropriate when the proceedings have given both parties a fair opportunity to present their case and the decision had been reached in the light of all relevant argument".

Trimble was a case, in contrast to Flint and Lindsay, in which there had not been a fair opportunity given to the party who sought a review to present her case at the original hearing.

18. There is no doubt at all in this case that the Tribunal made a mistake, as a result of which, adventitiously and without right, Mr Gundill was awarded something in the region of £2000 more than he should have been. We agree with the earlier authorities of the Employment Appeal Tribunal that, even in such circumstances, it is necessary to exercise caution before a Tribunal grants a review on interests of justice grounds. An error of law on the face of the decision having such consequences as those which we have just outlined is not, in itself, enough. The question in this case is whether this is a case in which there was a shortcoming on behalf of the Prison Service, or those who represented it, or whether this is a case in which the Prison Service had not been given a fair opportunity to present its case as to the effect of Section 88.
19. In our judgment this is a case which fell within the latter category. If Mr Sadiq, or the Tribunal, had raised Section 88 in the course of the hearing Mr Hill, undoubtedly, would within minutes have been able, and certainly would have had the opportunity, to explain to the Tribunal that Section 88 did not apply because of the provisions of Section 191. But it was not raised at all; and this appears to us to have been clearly a case in which no fair opportunity was given to Mr Hill, on behalf of the Prison Service, to meet the Section 88 point. It is a case in which the employers could, and do, with substance say, because it appears to be what happened, that in this respect they did not have a fair hearing and that there was a serious procedural shortcoming.
20. If the point had been ventilated and properly argued, then the appropriate course, once the Tribunal had made its mistake, would have been for the Prison Service to have appealed; but, in our judgment, the point was not ventilated and properly argued by reason of a procedural error; and in those circumstances it was a mistake of law for the Tribunal to refuse to grant a review. That refusal was, in our judgment, was a decision on the application for a review which should not have been made by a reasonable Tribunal.
21. We are not persuaded that the Prison Service did have an opportunity to deal with the Section 88 point either on the basis submitted by Mr Sadiq today or for the reasons set out in the Tribunal's decision. Mr Sadiq accepts that the Prison Service's representatives should not be criticised. He still, however maintains, although perhaps there may be illogicality about so maintaining in the light of that acceptance, that there was an opportunity to answer the Section 88 point. We see no basis on which it could fairly or justly be said that Mr Hill should have anticipated the deployment of Section 88 and dealt with it when it had not been raised by anybody either in argument, in discussion or on the papers. Nor do we see how it can fairly be said that such an opportunity arose by reason of the questions which were asked by one of the lay members of the Tribunal before the luncheon adjournment, which questions were responded to by the Prison Personnel Officer after she had sought information from the Prison Service on the telephone, especially when it is not in dispute that the questions which were asked were not directed to anything which would give rise to a suspicion that the Tribunal may have had Section 88 in mind but were directed to Mr Gundill's contractual rights, which were in issue and which the Tribunal were being asked to decide upon.
22. Nor do we see how it can be fairly said that such an opportunity arose at the end of, or after, the oral decision. Mr Hill points out that the Tribunal had completed its oral decision before he had any opportunity to protest and that it would have been too late; to have protested at that stage even if he had realised that they had made the error of law which they in fact did. We are not wholly confident that it would have been too late but we do not think that Mr Hill can or should be criticised for failing to protest at that stage even if he had appreciated what at that stage he did not appreciate. Nor do we think he can be criticised for failing to appreciate that he could protest; he had not then had an opportunity to go away and look in "Harvey" to see whether Section 88 was in fact disapplied.
23. In our judgment it is not right or just to criticise Mr Hill for failing, when he did realise some minutes later, that the Tribunal had made the mistake which we have set out, to take steps to reassemble the Tribunal and to raise the matter with them there and then. We have no idea whether, if he had taken such steps, it would have been possible to get everybody together again, whether the Tribunal members would have agreed to that happening, whether Mr Sadiq's client would have agreed to that happening and whether any of the relevant persons were still in the building at the relevant time. If and in so far as the Tribunal in its decision on the review issue was thinking along the lines that Mr Hill should have made some efforts, such as we have described, (and it is not clear that they were although it is possible that they were from the words they used) we regard any such thought as unfair. We do not believe that the Tribunal was correct to take into account such criticisms of Mr Hill as they took into account; in so doing they committed another error of law in our judgment.
24. Accordingly, and we have to say without a great deal of hesitation, we have come to the conclusion that the Tribunal erred in law here and that their decision can not stand. It is, we are pleased to say, accepted by both parties that, under section 35 of the Employment Tribunals Act 1996, this Employment Appeal Tribunal has power, rather than sending the question as to whether a review should be granted back to the Tribunal for redetermination, to make the determination ourselves if we are certain that only one result could be achieved.
25. The parties are agreed that if this matter did go back to the Tribunal for redetermination, in the light of what we have said in this judgment, the Tribunal could reach only one decision, namely that a review should be granted and that, if, a review were granted, the effect of that review would inevitably be that the award would be reduced by the amount by which it has been erroneously increased as a result of the application of Section 88. The parties having thus agreed, we are quite clear that we should not send this matter back to the Tribunal but should allow the appeal and substitute for the amount awarded to Mr Gundill The appeal will be allowed; and for the award of compensation that was actually made there will be substituted an award of £9248.57.