Appeal No. EATS/0019/03

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 29 September 2003

 
Before
THE HONOURABLE LORD JOHNSTON
MR M R SIBBALD
Ms A E ROBERTSON

 

JAMES BRADLEY	APPELLANT

 

 
FREEPORT PLC
(Formerly Freeport Leisure Plc)	RESPONDENTS

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

	APPEARANCES

 

For the Appellant	Mr S C Miller, Solicitor
Of-
Messrs Macroberts
Solicitors
152 Bath Street
GLASGOW   G2 4TB

 

For the Respondents

 

 

 

Mr N Scampion, Barrister
Instructed by-
Messrs Rawlison Butler
Solicitors
Griffin House
135 High Street
CRAWLEY   RH10 1DQ

 

LORD JOHNSTON:
 
1.	This is an appeal at the instance of the employee against, both, a finding by the Employment Tribunal that he had not been unfairly dismissed, but, also against the refusal of the Tribunal Chairman to grant a review of the relevant decision.
 
2.	Before us, Mr Miller opened on the second point to which we invited Mr Scampion, appearing for the employers, to respond.  In the result, as will be seen, the first ground of appeal was not pursued at this stage.
 
3.	Subsequent to the issuing of the decision, those acting for the appellant wrote to the Tribunal Secretary on 24 December requesting a review in terms of Rule 13(1)(e) of the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001.
 
4.	In that letter he made five requests justifying his application.  The Tribunal Chairman granted numbers 1 and 4.  The remaining numbers are in the following terms:-
 
“2.	The Applicant gave evidence that he did tell the Respondent’s employees B. Brady and I. Brownstein that his wife had left home for a brief period.  He passed the same information to P. Wooley of the Respondent.  Mr Wooley indicated to the Applicant he would brief S. Collidge.  As this evidence of the Applicant was not contested nor contradicted, the content of Paragraph 5 on Page 3, Paragraph 6 on Page 4 and Paragraph 3 on Page 10 falls to be amended.
 
3.	The Tribunal is invited to give reasons for its conclusion that there was a discussion about the three points mentioned by the Applicant in his letter dated 20th February (R28), as set out in full on Page 5, Lines 27 to 39, in light of the fact that no suggestion to that effect appears in the detailed meeting note (R29).
 
5.	The Applicant gave evidence that he was told there would be no increase in the salary package in the new role of Group Operations Manager.  That evidence was not contradicted.  It therefore follows that that paragraph beginning in Line 31 on Page 7 should be extended to cover that point.”
 
5.	It is to be seen, that at least as far as paragraphs 2 and 3 are concerned, an attack is made upon the findings of the Tribunal with regard to inadequacy of reasoning.
 
6.	By letter dated 20 January 2003 the Secretariat wrote back to those acting for the employee inter alia in the following terms:-
 
“The Chairman has considered your letter dated 24 December 2002.  She has issued a certificate of correction to cover points 1 and 4.  Having considered the remaining points she is not satisfied that a review is required.”
 
7.	Before us, Mr Miller reviewed Rule 13 and, in particular, pointed to subparagraph (5) which is in the following terms:-
 
“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.”
 
8.	Both Counsel accepted that the Tribunal Chairman had applied the wrong tests by using the word “required” which is plainly borrowed from Rule 13(1)(c) which is not the test to be applied but merely the basis upon which an application may be considered.
 
9.	Mr Scampion ably argued that under reference to the evidence, particularly paragraphs 2 and 3 did not raise any question which had not been adequately covered by the Tribunal in its findings.
 
10.	With all respect to that submission, we consider that for us to sustain it is going too far too fast.  We consider that the Tribunal Chairman should have given reasons why the application for review was being refused and, furthermore, should have applied the test of whether or not there was any reasonable prospect of success at a review hearing.
 
11.	In these circumstances we propose to allow the appeal at this stage to the extent of remitting the matter back to the Tribunal Chairman in order that she may amplify her letter of 20 January and, in particular, give reasons as to why she considers paragraphs 2, 3 and 5 or any of them have no reasonable prospects of success at a review hearing.  If she wishes to order a review hearing simpliciter that is a matter for her.