Jones v Governing Body of Burdett Coutts School

The Employment Appeal Tribunal may permit a new point of law to be raised, or a conceded point to be reopened, only in exceptional circumstances. Exceptionally compelling reasons are required where reopening the point would entail further factual proceedings. An advocate’s inexperience and the importance of the legal point are insufficient reasons. Finality and fairness to the opposing party may require a concession to stand even when its legal basis is demonstrably wrong.

A court or tribunal exercising discretion in a particularly unusual manner must give reasons. Although a specialist tribunal’s procedural decisions deserve great respect, an unexplained departure from established principles may fall outside the permissible range of discretion and justify appellate intervention.

Mr Jones was employed as schoolkeeper by the governing body of Burdett Coutts School. After deciding to contract out cleaning services, the governors replaced his post with a site manager’s post carrying fewer duties and lower remuneration. He accepted the new post while maintaining that termination of his previous contract amounted to unfair dismissal.

The Industrial Tribunal dismissed his complaint. His representative had conceded that section 84 of the Employment Protection (Consolidation) Act 1978 applied if the termination was attributable to redundancy. The tribunal found redundancy and treated his immediate re-engagement as excluding dismissal.

The Employment Appeal Tribunal permitted that concession to be reopened, preferred the construction limiting section 84 to redundancy payments, and allowed Mr Jones’s appeal. Its decision, cited in the judgment as 1997 ICLR 390, remitted the complaint to a differently constituted Industrial Tribunal. The governors appealed to the Court of Appeal. The sole issue was whether the Employment Appeal Tribunal had properly exercised its discretion to entertain the conceded point.

The appeal was allowed unanimously. Robert Walker LJ delivered the substantive judgment, with which Morritt and Stuart-Smith LJJ agreed.

1. The Employment Appeal Tribunal possessed a discretion to permit a new legal point or reopen a concession, but established practice confined its exercise to exceptional circumstances. Where the change would require investigation of factual matters insufficiently explored below, exceptionally compelling reasons were required. The approach discussed in Hellyer Brothers v Mcleod and Wilson v Liverpool Corporation emphasised possession of the material necessary to dispose of the point fairly, without injustice or a further hearing below.

2. The Employment Appeal Tribunal recognised that allowing the point would lead to another hearing with further evidence. It nevertheless supplied no reasons for permitting the concession to be reopened. Its characterisation of the governors’ objection as technical failed to address the established principles. The governing practice protected finality and fairness to a respondent exposed to further litigation.

3. The procedural discretion of an experienced specialist tribunal deserved the greatest respect. Nevertheless, a court or tribunal exercising discretion in a particularly unusual manner was bound to give reasons. Here, the unexplained ruling ran counter to established principles and fell outside the range within which the tribunal could reasonably exercise its discretion.

4. Neither the advocate’s inexperience nor the importance of the statutory question supplied a sufficient justification. A point concerning jurisdiction might justify reopening an issue, but this case raised no jurisdictional question. The acknowledged correctness of the proposed statutory construction did not outweigh the principles governing reopening a concession.

5. On the substantive construction, Robert Walker LJ endorsed the preference for Hempell v W.H.Smith over EBAC Ltd v Wymer. Section 84 of the Employment Protection (Consolidation) Act 1978 qualified the redundancy provisions in Part VI rather than the unfair dismissal provisions in Part V. Termination of one employment contract could therefore constitute dismissal despite uninterrupted employment under another contract with the same employer. That construction did not determine the procedural appeal.

The governors’ appeal was allowed with costs, to be taxed if not agreed.

• Court of Appeal: Allowed the governors’ appeal unanimously. The Employment Appeal Tribunal’s unexplained decision to reopen the conceded point fell outside the permissible range of discretion.
• Employment Appeal Tribunal: On 16 January 1997, permitted amendment of Mr Jones’s notice of appeal, allowed his appeal and remitted the complaint to a differently constituted Industrial Tribunal. The decision is cited in the supplied judgment as 1997 ICLR 390. The different constitution reflected practical difficulties in reconvening the original tribunal and recalling earlier evidence.
• Industrial Tribunal: Following three hearings in 1995, promulgated its decision on 11 January 1996. It dismissed the unfair dismissal complaint after finding redundancy and applying the re-engagement provisions of the Employment Protection (Consolidation) Act 1978.