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

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