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

Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

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

iJobs Job Widget
iJobs People

Geography Teacher

£24000 - £33600 per annum + pre 12 week AWR : Randstad Education Manchester Se...

E150/2014 - English Language Checker (Grade B3)

On Application: Council of Europe: The European Court of Human Rights’s judgme...

Marketing Executive

£28000 - £32000 per annum: Charter Selection: A professional services company ...

Project Manager - Bristol South West

£400 - £450 per day: Orgtel: Project Manager (PM), Key Banking Client, Retail ...

Day In a Page

Super Mario crushes the Messi dream as Germany win the 2014 World Cup in Brazil

Super Mario crushes the Messi dream

Germany win the 2014 World Cup in Brazil
Saharan remains may be evidence of the first race war, 13,000 years ago

The first race war, 13,000 years ago?

Saharan remains may be evidence of oldest large-scale armed conflict
Scientists find early warning system for Alzheimer’s

Scientists find early warning system for Alzheimer’s

Researchers hope eye tests can spot ‘biomarkers’ of the disease
Sex, controversy and schoolgirl schtick

Meet Japan's AKB48

Pop, sex and schoolgirl schtick make for controversial success
Iraq crisis: How Saudi Arabia helped Isis take over the north of the country

How Saudi Arabia helped Isis take over northern Iraq

A speech by an ex-MI6 boss hints at a plan going back over a decade. In some areas, being Shia is akin to being a Jew in Nazi Germany, says Patrick Cockburn
The evolution of Andy Serkis: First Gollum, then King Kong - now the actor is swinging through the trees in Dawn of the Planet of the Apes

The evolution of Andy Serkis

First Gollum, then King Kong - now the actor is swinging through the trees in Dawn of the Planet of the Apes
You thought 'Benefits Street' was controversial: Follow-up documentary 'Immigrant Street' has got locals worried

You thought 'Benefits Street' was controversial...

Follow-up documentary 'Immigrant Street' has got locals worried
Refugee children from Central America let down by Washington's high ideals

Refugee children let down by Washington's high ideals

Democrats and Republicans refuse to set aside their differences to cope with the influx of desperate Central Americas, says Rupert Cornwell
Children's books are too white, says Laureate

Children's books are too white, says Laureate

Malorie Blackman appeals for a better ethnic mix of authors and characters and the illustrator Quentin Blake comes to the rescue
Blackest is the new black: Scientists have developed a material so dark that you can't see it...

Blackest is the new black

Scientists have developed a material so dark that you can't see it...
Matthew Barzun: America's diplomatic dude

Matthew Barzun: America's diplomatic dude

The US Ambassador to London holds 'jeans and beer' gigs at his official residence – it's all part of the job, he tells Chris Green
Meet the Quantified Selfers: From heart rates to happiness, there is little this fast-growing, self-tracking community won't monitor

Meet the 'Quantified Selfers'

From heart rates to happiness, there is little this fast-growing, self-tracking community won't monitor
Madani Younis: Five-star reviews are just the opening act for British theatre's first non-white artistic director

Five-star reviews are just the opening act for British theatre's first non-white artistic director

Madani Younis wants the neighbourhood to follow his work as closely as his audiences do
Mrs Brown and her boys: are they having a laugh?

Mrs Brown and her boys: are they having a laugh?

When it comes to national stereotyping, the Irish – among others – know it can pay to play up to outsiders' expectations, says DJ Taylor