Appeal No.EAT/1469/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 31 January 2002

Before
MR RECORDER BURKE QC
MISS C HOLROYD
MR R THOMSON

MR K G GOODEN	APPELLANT

RITZ COUNTRY 1035 LTD 	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS H GOWER
(of Counsel)
Instructed by:
Messrs Mogers
Solicitors
24 Queen Square
Bath
BA1 2HY	
For the Respondent	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE RESPONDENT	

MR RECORDER BURKE QC
1.	This is an appeal by Mr Gooden, the employee, against orders made by the Employment Tribunal sitting at London (North), chaired by Miss Gilbert and promulgated and sent to the parties with extended reasons on 11 September 2000.  It is also an appeal against what is said to be the refusal by the same Tribunal, in this case by the Chairman acting alone, to grant a review, that decision being conveyed in a letter sent by the Tribunal on 28 September of the same year.  

2.	The employee, Mr Gooden, has been represented today by Miss Gower; the employers are not represented.  They have sent to this Appeal Tribunal a letter dated 28 January of this year saying that all points were raised at the Tribunal hearing but the Appeal has no merit and they can see nothing in the employee’s skeleton argument to cause them to vary from that view. They say that it is for the Appellant to convince this Appeal Tribunal that there was an error of law; the onus of proof falls on him; they do not consider that he can satisfy that requirement and ask that in those c ircumstances their attendance today may be excused. Thus they have not appeared today at this hearing.  

3.	Mr Gooden was employed by the employers, Ritz Country 1035 Ltd, who ran at the material time (and may still run for all we know) a radio station based in Wembley, North London.  Mr Gooden was a programme controller and a presenter; he was dismissed with effect from 31 March 2000 on the grounds of redundancy.  He claimed in his Originating Application that he had been unfairly dismissed; and he claimed that the employers had failed, in breach of contract, to make to him payments due under 6 heads, those heads being;
a)	Pension contributions
b)	Sum in respect of season ticket loan
c)	Bonus payment
d)	Health and Life Insurance cover
e)	Salary in lieu of Notice 
f)	Holiday pay

4.	The employer’s notice of appearance addressed only the issue of unfair dismissal, which was denied; and the issues came on for hearing before the Employment Tribunal on 8 June 2000.  During the course of the hearing on that day, the contract claims, other than those in respect of the season ticket loan and the bonus, to put it neutrally ceased to be issues between the parties which the parties wished the Tribunal to determine.  At paragraph 2.4 of their reasons, the Tribunal say, “The Respondent now accepts the Applicant’s claims for items (a), (d), (e) and (f), leaving only (b) and (c) to be ruled on by the Tribunal”, that is to say leaving only the items which we have identified, the season ticket loan and the bonus payment, to be ruled on by the Tribunal.  In that paragraph, the Tribunal do not explain how that situation came about.  In paragraph 13 of their reasons, the Tribunal say; “The Applicant and the Respondent asked us not to consider the sums due in respect of holiday pay, pension loss, insurance and salary in lieu of notice and we have not done so.”  In paragraph 14 the Tribunal say; “As far as the breaches of contract were concerned, then the Respondent agreed that sums were due to the Applicant in respect of his pension, his salary, in lieu of notice, his holiday pay and medical and health insurance”; and finally, so far as the reasons are concerned, at paragraph 16 the Tribunal say,“The Tribunal have only been asked to consider the question of the Applicant’s bonus and season ticket loan”

5.	We have seen the Chairman’s notes insofar as they bear on the issues which are relevant for the purposes of this appeal.  They do not tell us very much; but it is of some significance that those notes contain these words, “The parties also confirmed that they had now agreed items (a), (d), (e) and (f) of the contract claim and that the Tribunal was not to consider them.”  

6.	Whether the Tribunal was asked not to consider these items because they had been the subject of an agreement between the parties or whether the Tribunal was asked not to consider them because they been wholly conceded in the sums claimed in the Originating Application by the Respondent, is not clear from these various references in the decision and in the notes.  Miss Gower, who appeared below, has frankly told us that she does not have a strong recollection of what happened.  She tells us that there were without prejudice negotiations, which according to her memory did not result in agreement as to a global figure to be paid by the employers in respect of all the breach of contract claims and that there was no agreement as to what was to be paid in respect of each of the four individual breach of contract claims which the Tribunal was asked not to consider.  Whether the employers agree with that is not clear, because it has not been possible for any helpful contact to have been made with them or with those who represented them.  What is clear is this: - at no point is it suggested in either the reasons or the notes that those four individual contract claims were to be withdrawn; and the Tribunal in the decision itself, as opposed to the reasons, does not say anything about those four contract claims at all.  It simply does not adjudicate upon them.  

7.	If there had been an agreement between the parties as to those four individual heads of claim, then the Tribunal could either have given effect to that by deciding that those heads of claim were withdrawn upon agreement or by awarding by consent the sums which it was agreed between the parties should be paid in respect of them.  If there was no agreement but only a concession by the employers as to those four individual heads, then the Tribunal would have been expected to have made an order in favour of the employee for the sums conceded.  In fact the Tribunal failed to take either of these courses and failed to make any decision at all on those four individual heads of claim.  In failing to do so, we are satisfied that the Tribunal erred in law because it was bound to make a decision in one form or another.  
8.	The Tribunal is perhaps not to be blamed or wholly blamed for this extremely unusual situation.  The parties, through their representatives, ought to have made clear to the Tribunal what order they were seeking from the Tribunal.  We can well understand how it may have come about that, in the heat of an ardent dispute between the parties as to unfair dismissal, the Tribunal was by omission not given an indication by the parties as to what orders the Tribunal should make in respect of matters which were no longer in dispute.  Nevertheless, for whatever reason, the Tribunal was bound to make some decision about those matters in some form and it did not do so, with the effect that those matters are formally now still unresolved.  

9.	How should this unfortunate state of affairs be put right?  Miss Gower has submitted that it is so clear that the employers had conceded not only their liability in respect of those four individual heads of claim but also quantum, that is to say the amount of those claims, in the sums set out in the Originating Application that we should simply act as the Tribunal and make an order for those sums ourselves.  We do not believe that it would be right to take that course.  We are not certain, by any means, as to what precisely happened between the parties.  It is not wholly clear to us that the employers made concessions in the sums claimed in respect of any or all of those sums, although it may well be that that is what happened and it may well be that that is why the Tribunal was asked, as it plainly was asked, not to resolve any issue about those sums.  

10.	There appears to us to be no sensible alternative to this matter being remitted to the Tribunal, so that the Tribunal can now resolve between the parties, if necessary at a further hearing, what orders should be made in respect of those four individual heads of claim.  We should make it absolutely clear that this remission should be to the same Tribunal, assuming that the same Tribunal can now be reconstituted: if not then the matter must be dealt with by direction by the appropriate regional chairman.  
11.	Miss Gower has put her case on an alternative basis.  She submits that, in a letter written by the employee’s solicitors to the Tribunal on 14 September 2000 a request was made to the Tribunal for a review of their decision, at which review the matters we have been addressing earlier in this judgment should or could have been put right.  In a letter from the Tribunal to the employee’s solicitors, dated 28 September 2000, the Tribunal said that the parties had requested the original Tribunal not to consider the items referred to in the employee’s solicitors letter i.e. the unresolved four heads of claim and did not do so and the Tribunal could not incorporate in its decision, whether by consent or otherwise, matters which the parties asked them not to consider at the hearing.  This, submits Miss Gower, was a refusal of an application for a review.  We do not agree.  In our judgment the letter of 14 September 2000 did not amount to an application for a review at all.  It was in fact, as the Tribunal plainly themselves believed, as can be seen from the terms of their response, a request to the Tribunal simply to insert into the original decision an award of amounts in relation to the four individual heads of claim with which it had not dealt at the hearing.  

12.	Whether the Tribunal would have been right or wrong to react as they did, had there been an application for a review, is something we need not consider because it is wholly plain to us that that letter did not constitute an application for a review.  However, the fact that the second limb of Miss Gower’s argument has not succeeded does not mean that this matter cannot be clarified; it can be clarified by the route which we have decided upon in dealing with the first ground on which Miss Gower has put this appeal.  

13.	We have one last thing to say.  It should be possible, with good sense and co-operation on both sides, for the expense and time of a further hearing before the Tribunal to be avoided.  If the parties were agreed on anything, then it would certainly be a saving of both time and expense if that agreement could, in some form or another, be put into effect without the need for a further hearing; but of course we cannot direct the parties in any respect.  While we hope that good sense will prevail, if it does not then there will have to be another inter-partes hearing as we have directed.