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

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

Geography Teacher

£85 - £140 per day: Randstad Education Cheshire: We require a teacher of Geogr...

HR Assistant / Human Resources Assistant

£Neg + Excellent Benefits: Guru Careers: An HR Assistant / Human Resources Ass...

Talent Community Coordinator

£Neg + Excellent Benefits: Guru Careers: A Talent Community Coordinator is nee...

Business Support - Banking - Halifax - £250 pd

£150 - £250 per day: Orgtel: HR Analyst - Banking - HR - Halifax - £150 - £250...

Day In a Page

Evan Davis: The BBC’s wolf in sheep’s clothing to take over at Newsnight

The BBC’s wolf in sheep’s clothing

What will Evan Davis be like on Newsnight?
Finding the names for America’s shame: What happens to the immigrants crossing the US-Mexico border without documents who never make it past the Arizona desert?

Finding the names for America’s shame

The immigrants crossing the US-Mexico border without documents who never make it past the Arizona desert
Inside a church for Born Again Christians: Speaking to God in a Manchester multiplex

Inside a church for Born Again Christians

As Britain's Anglican church struggles to establish its modern identity, one branch of Christianity is booming
Rihanna, Kim Kardashian and me: How Olivier Rousteing is revitalising the house of Balmain

Olivier Rousteing is revitalising the house of Balmain

Parisian couturier Pierre Balmain made his name dressing the mid-century jet set. Today, Olivier Rousteing – heir to the house Pierre built – is celebrating their 21st-century equivalents. The result? Nothing short of Balmania
Cancer, cardiac arrest, HIV and homelessness - and he's only 39

Incredible survival story of David Tovey

Tovey went from cooking for the Queen to rifling through bins for his supper. His is a startling story of endurance against the odds – and of a social safety net failing at every turn
Backhanders, bribery and abuses of power have soared in China as economy surges

Bribery and abuses of power soar in China

The bribery is fuelled by the surge in China's economy but the rules of corruption are subtle and unspoken, finds Evan Osnos, as he learns the dark arts from a master
Commonwealth Games 2014: Highland terriers stole the show at the opening ceremony

Highland terriers steal the show at opening ceremony

Gillian Orr explores why a dog loved by film stars and presidents is finally having its day
German art world rocked as artists use renowned fat sculpture to distil schnapps

Brewing the fat from artwork angers widow of sculptor

Part of Joseph Beuys' 1982 sculpture 'Fettecke' used to distil schnapps
BBC's The Secret History of Our Streets reveals a fascinating window into Britain's past

BBC takes viewers back down memory lane

The Secret History of Our Streets, which returns with three films looking at Scottish streets, is the inverse of Benefits Street - delivering warmth instead of cynicism
Joe, film review: Nicolas Cage delivers an astonishing performance in low budget drama

Nicolas Cage shines in low-budget drama Joe

Cage plays an ex-con in David Gordon Green's independent drama, which has been adapted from a novel by Larry Brown
How to make your own gourmet ice lollies, granitas, slushy cocktails and frozen yoghurt

Make your own ice lollies and frozen yoghurt

Think outside the cool box for this summer's tempting frozen treats
Ford Fiesta is UK's most popular car of all-time, with sales topping 4.1 million since 1976

Fiesta is UK's most popular car of all-time

Sales have topped 4.1 million since 1976. To celebrate this milestone, four Independent writers recall their Fiestas with pride
10 best reed diffusers

Heaven scent: 10 best reed diffusers

Keep your rooms smelling summery and fresh with one of these subtle but distinctive home fragrances that’ll last you months
Commonwealth Games 2014: Female boxers set to compete for first time

Female boxers set to compete at Commonwealth Games for first time

There’s no favourites and with no headguards anything could happen
Five things we’ve learned so far about Manchester United under Louis van Gaal

Five things we’ve learned so far about United under Van Gaal

It’s impossible to avoid the impression that the Dutch manager is playing to the gallery a little