Jones v Governing Body of Burdett Coutts School

An Employment Appeal Tribunal may exceptionally allow a new point of law to be raised, or reopen a concession made before an Industrial Tribunal. The discretion is governed by fairness to the respondent and finality in litigation. It should ordinarily not be exercised where the point requires fresh factual investigation. Advocate inexperience and the importance of the point are insufficient by themselves. An unusually permissive exercise of the discretion requires reasons, and an appellate court may intervene where established principles have been disregarded. The Court also accepted that section 84 of the Employment Protection (Consolidation) Act 1978 was confined to redundancy claims and did not exclude an unfair-dismissal claim.

Mr Jones, a schoolkeeper, accepted a lower-paid site-manager post after the governors decided to contract out cleaning work. The Industrial Tribunal found that termination of his schoolkeeper contract was by reason of redundancy, but held that immediate re-engagement under section 84 of the Employment Protection (Consolidation) Act 1978 meant that he was not to be regarded as dismissed. His unfair-dismissal complaint therefore failed.

The Employment Appeal Tribunal allowed his appeal and remitted the matter to a differently constituted Industrial Tribunal, after permitting him to raise a point concerning the construction of section 84 which had been conceded below. The governors appealed to the Court of Appeal. The central issue was whether that procedural discretion had been properly exercised.

Lord Justice Robert Walker delivered the leading judgment. Lord Justices Morritt and Stuart-Smith agreed. The appeal was allowed with costs.

1. Discretion to admit a new point. The Employment Appeal Tribunal has discretion to permit a new point of law, or to reopen a point conceded before the Industrial Tribunal. The discretion should be exercised only in exceptional circumstances, particularly where allowing the point would require fresh factual investigation. The governing considerations include justice to the respondent and the public interest in finality. Lack of skill or experience by the party or advocate is not sufficient. The importance of the point is not, by itself, sufficient, although a jurisdictional issue may justify exceptional intervention.
2. Reasons and appellate review. A tribunal exercising its discretion in an unusually permissive manner must give reasons. Here, the Employment Appeal Tribunal knew that its decision would require a further hearing and fresh evidence, yet gave no reasons for reopening the concession. The decision therefore disregarded established principles and fell outside the range within which the discretion could reasonably be exercised. Respect for an experienced specialist tribunal did not prevent appellate intervention.
3. Statutory construction. The Court accepted that the Employment Appeal Tribunal had been right to prefer Hempell v W.H.Smith [1986] ICR 365 to EBAC Ltd v Wymer [1995] ICR 466. Section 84 of the Employment Protection (Consolidation) Act 1978 operated as a qualification to the redundancy provisions in Part VI and did not prevent an unfair-dismissal claim under Part V. The later consolidating legislation had removed any future doubt. This conclusion did not justify reopening the concession.
4. The order was therefore: appeal allowed with costs, to be taxed if not agreed.

• Court of Appeal (Civil Division): allowed the governors’ appeal with costs.
• Employment Appeal Tribunal: [1997] ICR 390, allowed Mr Jones’s appeal and remitted the matter to a differently constituted Industrial Tribunal after permitting amendment of the notice of appeal.
• Industrial Tribunal: found a potential redundancy dismissal but held that section 84 prevented Mr Jones from being regarded as dismissed because he was immediately re-engaged as site manager; the unfair-dismissal complaint failed.