LAW REPORT: Decision to order rehearing was not flawed

LAW REPORT: 4 February 1997

Maure v MacMillan Distribution Ltd; Court of Appeal (Lord Justice Hirst, Lord Justice Waite, Lord Justice Schiemann) 23 January 1996

Extended reasons for a majority decision by an industrial tribunal whose chairman found himself in the minority should not be signed by the chairman for promulgation until the majority lay members had seen and approved the text.

The Court of Appeal so recommended, when dismissing the employee's appeal against the Employment Appeal Tribunal's decision to remit his unfair dismissal complaint for rehearing by a differently constituted industrial tribunal on the ground that the chairman of the original tribunal, when writing reasons for their majority decision in the employee's favour, had failed to give the two lay members sufficient opportunity to approve his summary of their views.

Laura Cox QC and Jason Galbraith-Marten (Nelson Johnson & Hastings, Nottingham) for the appellant; Philip Reed (Taylor Joynson Garrett) for the respondent.

Lord Justice Waite said that the employee, Mr Maure, complained against his employers, MacMillan Distribution Ltd, that he had been unfairly selected for redundancy. The two lay members of the industrial tribunal upheld his complaint; the chairman did not. The complaint was upheld and the employers appealed.

Shortly before the matter came before the appeal tribunal, Mrs Stanbrook, one of the two lay members of the industrial tribunal, complained in a letter to her regional chairman that the chairman of the industrial tribunal, in reducing into writing the extended reasons for the decision in which he had found himself in a minority, had failed to provide her and the other lay member with a sufficient opportunity of approving his summary of their reasoning before the final text of the decision was promulgated.

Mrs Stanbrook asserted that the tribunal chairman, in drafting the extended reasons, had begun by producing two successive drafts of the majority's reasons, both of which they had rejected as an incomplete or inaccurate statement of their views. They then produced their own draft. Neither of them was sent a copy of, or invited to approve, the final version of the decision as promulgated.

The appeal tribunal, chaired by Mr Justice Morison, invited the parties to make submissions on the preliminary question whether, in view of the doubts raised as to the accuracy of the written reasons for the decision being appealed against, the appeal could proceed at all.

Three options were considered: to ignore the complaint and proceed on the assumption that the majority's decision had been accurately summarised; to invite the industrial tribunal to clear up the doubt themselves by confirmation and (if necessary) elaboration of those reasons; or to refer the whole claim for rehearing by a freshly constituted industrial tribunal.

The appeal tribunal concluded, reluctantly, that the only way of ensuring justice on both sides would be to follow the third course, and they directed accordingly. The employee appealed, contending that the proper course would have been the second alternative, to remit the case to the original tribunal for confirmation of their reasons.

The employers had contended initially that the appeal tribunal should ignore the complaint and proceed with the hearing; but, when it became plain that the appeal tribunal was not to be moved by that submission, withdrew their opposition to a rehearing.

It was not the task of the Court of Appeal to decide upon the fairest way out of the problem posed by the unfortunate turn of events in this case. That was the role of the Employment Appeal Tribunal, the body primarily charged with the exercise of that discretion. The duty of the Court of Appeal was limited to determining whether that discretion had been properly and lawfully exercised.

The powerful considerations urged on the employee's behalf were matched by no less persuasive arguments on the employers' behalf.

His Lordship could see no ground for saying that, in resolving finely balanced arguments in favour of a fresh hearing of the claim, the appeal tribunal fell into any error of approach or produced a result which was demonstrably wrong.

Paul Magrath, Barrister

Start your day with The Independent, sign up for daily news emails
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Recruitment Genius: HR Manager

£25000 - £30000 per annum: Recruitment Genius: They are in need of a HR Manage...

h2 Recruit Ltd: Business Development Manager - HR Consultancy - £65,000 OTE

£35000 - £40000 per annum + £65,000 OTE: h2 Recruit Ltd: London, Birmingham, M...

Day In a Page

Homeless Veterans appeal: 'You look for someone who's an inspiration and try to be like them'

Homeless Veterans appeal

In 2010, Sgt Gary Jamieson stepped on an IED in Afghanistan and lost his legs and an arm. He reveals what, and who, helped him to make a remarkable recovery
Could cannabis oil reverse the effects of cancer?

Could cannabis oil reverse effects of cancer?

As a film following six patients receiving the controversial treatment is released, Kate Hilpern uncovers a very slippery issue
The Interview movie review: You can't see Seth Rogen and James Franco's Kim Jong Un assassination film, but you can read about it here

The Interview movie review

You can't see Seth Rogen and James Franco's Kim Jong Un assassination film, but you can read about it here
Serial mania has propelled podcasts into the cultural mainstream

How podcasts became mainstream

People have consumed gripping armchair investigation Serial with a relish typically reserved for box-set binges
Jesus Christ has become an unlikely pin-up for hipster marketing companies

Jesus Christ has become an unlikely pin-up

Kevin Lee Light, aka "Jesus", is the newest client of creative agency Mother while rival agency Anomaly has launched Sexy Jesus, depicting the Messiah in a series of Athena-style poses
Rosetta space mission voted most important scientific breakthrough of 2014

A memorable year for science – if not for mice

The most important scientific breakthroughs of 2014
Christmas cocktails to make you merry: From eggnog to Brown Betty and Rum Bumpo

Christmas cocktails to make you merry

Mulled wine is an essential seasonal treat. But now drinkers are rediscovering other traditional festive tipples. Angela Clutton raises a glass to Christmas cocktails
5 best activity trackers

Fitness technology: 5 best activity trackers

Up the ante in your regimen and change the habits of a lifetime with this wearable tech
Paul Scholes column: It's a little-known fact, but I have played one of the seven dwarves

Paul Scholes column

It's a little-known fact, but I have played one of the seven dwarves
Fifa's travelling circus once again steals limelight from real stars

Fifa's travelling circus once again steals limelight from real stars

Club World Cup kicked into the long grass by the continued farce surrounding Blatter, Garcia, Russia and Qatar
Frank Warren column: 2014 – boxing is back and winning new fans

Frank Warren: Boxing is back and winning new fans

2014 proves it's now one of sport's biggest hitters again
Jeb Bush vs Hillary Clinton: The power dynamics of the two first families

Jeb Bush vs Hillary Clinton

Karen Tumulty explores the power dynamics of the two first families
Stockholm is rivalling Silicon Valley with a hotbed of technology start-ups

Stockholm is rivalling Silicon Valley

The Swedish capital is home to two of the most popular video games in the world, as well as thousands of technology start-ups worth hundreds of millions of pounds – and it's all happened since 2009
Did Japanese workers really get their symbols mixed up and display Santa on a crucifix?

Crucified Santa: Urban myth refuses to die

The story goes that Japanese store workers created a life-size effigy of a smiling "Father Kurisumasu" attached to a facsimile of Our Lord's final instrument of torture
Jennifer Saunders and Kate Moss join David Walliams on set for TV adaptation of The Boy in the Dress

The Boy in the Dress: On set with the stars

Walliams' story about a boy who goes to school in a dress will be shown this Christmas