Stanley Cole (Wainfleet) Ltd. v Sheridan

A tribunal’s reliance on an authority not raised with the parties does not automatically make the hearing unfair. The authority must first have played a central and influential part in shaping the decision. The court must then determine whether the omission caused substantial prejudice or material injustice.

The assessment is contextual. An authority which merely reinforces an issue already addressed, or upon which no useful submission could have been made, need not be disclosed. Fairness is assessed across the proceedings as a whole.

An employer sought a review of an Employment Tribunal decision upholding an employee’s complaint of constructive unfair dismissal. The review application relied upon evidence concerning the employee’s search for other work. The Tribunal refused review under Rule 13(1)(d) and Rule 13(1)(e) of Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001.

In giving its decision, the Tribunal relied upon two authorities which it had not raised with the parties. The Employment Appeal Tribunal dismissed appeals against both the original merits decision and the refusal of review. Only the review appeal proceeded to the Court of Appeal.

The central issue was when a court or tribunal’s failure to invite submissions upon a material authority constitutes procedural unfairness requiring an appeal to be allowed.

1. The appeal was dismissed unanimously. Ward LJ held that citing an authority which the parties had not addressed is not, without more, a serious procedural irregularity. Requiring prior submissions upon every authority discovered through judicial research would unduly restrict the judicial process.

2. An undisclosed authority must first be relevant, significant and material in the sense that it is central rather than peripheral to the decision. It must play an influential part in shaping the judgment and significantly affect the way in which the issues are addressed. No complaint arises where the authority merely reinforces a point already addressed, or where its meaning is so clear that no useful submission could have been made.

3. Centrality is only the first stage. The omission must also have caused substantial prejudice or material injustice. Whether proceedings were unfair depends upon their subject matter and all the circumstances; no rigid or exhaustive rule can define the limits of procedural irregularity or natural justice.

4. The principle in Deria, refining the ordinary breadth of Rule 13(1)(e), was sufficiently central that the Tribunal should have drawn it to the employer’s attention. Nevertheless, the omission made no difference. The unchallenged finding under Rule 13(1)(d) was that the evidence could have been discovered with reasonable diligence. The employee’s late schedule of loss did not mitigate the employer’s failure to act upon information already available.

5. Lindsay was not central. It merely confirmed that shortcomings in the presentation of a case by a representative, whether professional or otherwise, do not generally justify review. Although latitude may be afforded to a litigant in person, the interests of justice do not require an opportunity to present the case better on a second occasion.

6. Buxton LJ agreed and added that fairness under Article 6 of the European Convention on Human Rights must be assessed across the proceedings as a whole. A procedural failure warrants setting aside the proceedings only where substantial unfairness occurred. Once the Tribunal’s finding concerning the evidence stood, the result could not have differed. Mance LJ agreed with both judgments.

1. Court of Appeal (Civil Division): The employer’s appeal was dismissed unanimously: [2003] EWCA Civ 1046.

2. Employment Appeal Tribunal: The Tribunal dismissed both the appeal against the constructive dismissal decision and the appeal against refusal of review. No further appeal was brought concerning the merits decision.

3. Employment Tribunal: The Tribunal upheld the employee’s constructive unfair dismissal complaint and later refused the employer’s review application under Rule 13(1)(d) and Rule 13(1)(e) of Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001.