The Industrial Tribunal had held that the appellant’s dismissal was unfair but then decided that she had failed to mitigate her loss. At the conclusion of the hearing, the Tribunal announced its decision and stated that she was to get no compensatory award because of that failure. Her solicitor said nothing. When he received the written decision of the tribunal he initially put in an application for review. He submitted in the grounds for review that he had not had the opportunity to address the Tribunal on the issue of mitigation of loss. The Tribunal therefore held a review hearing, following which it held that the error, if there was an error, was a major error of law and that the jurisdiction of the Industrial Tribunal was limited to small matters and did not extend to a substantial or important area of law.
Held: The interests of justice did not require a review because the right step, if any, was an appeal to the Employment Appeal Tribunal, something which the appellant had not set in motion. The EAT allowed the appeal from the refusal to carry out a review. The EAT noted that the case had become overcomplicated by technicalities: ‘Instead of dealing with the substance of the matter, we have now got into a complicated series of reviews and appeals from reviews which will still leave the fundamental question unresolved. However, the parties, have chosen to adopt their course and, therefore, we must deal with the appeal against a review decision on its merits.
As it seems to us the fundamental question is whether or not the Industrial Tribunal’s decision that Miss Trimble had failed to mitigate her loss was reached after Miss Trimble had had a fair and proper opportunity to present her case on the point, being aware that it was a point which was in issue. We do not think that it is appropriate for an Industrial Tribunal to review its decision simply because it is said there was an error of law on its face. If the matter has been ventilated and properly argued, then errors of law of that kind fall to be corrected by the Appeal Tribunal. If, on the other hand, due to an oversight or to some procedural occurrence one or other party can with substance say that he has not had a fair opportunity to present his argument on a point of substance, then that is a procedural shortcoming in the proceedings before the Tribunal which, in our view, can be correctly dealt with by review under Rule 10 however important the point of law of fact [sic] may be. In essence, the review procedure enables errors occurring in the course of the proceedings to be corrected but would not normally be appropriate when the proceedings had given both parties a fair opportunity to present their case and the decision had been reached in the light of all relevant argument.
Judges:
Browne-Wilkinson P
Citations:
[1982] IRLR 451, [1982] ICR 440
Jurisdiction:
England and Wales
Citing:
Cited – British Midland Airways Limited v Lewis EAT 1978
An airline pilot complained that he had been unfairly dismissed and the Industrial Tribunal, without considering whether or not they had jurisdiction to hear the complaint on the ground that the employee might ordinarily work abroad, found that the . .
Cited – Blackpole Furniture Ltd v Sullivan EAT 1978
The EAT considered whether there was any impropriety in an Industrial Tribunal considering an application for review even though their decision was under appeal to the EAT.
Held: There was no impropriety in so doing. In giving their reasons . .
Cited – D G Moncrieff (Farmers) v MacDonald EAT 1978
The ability of a tribunal to revisit its own judgments, the review procedure, was only appropriate for use in exceptional circumstances. . .
Cited by:
Cited – Williams v Ferrosan Ltd EAT 5-Mar-2004
Acting on guidance, the parties representatives and the tribunal had assumed that part of the award relating to loss of future earnings would not be taxable. The question now was whether the tribunal had power of its own motion to review its . .
Cited – Lindsay v Ironsides Ray and Vials EAT 27-Jan-1994
The industrial tribunal had refused the applicant an extension of time.
Held: The Tribunal mistook the law in holding that it could grant a review of its decision because the employee’s case had not been properly argued at the preliminary . .
Cited – Council of The City of Newcastle Upon Tyne v Marsden (Rev 1) EAT 23-Jan-2010
EAT PRACTICE AND PROCEDURE – Review
Claim under Disability Discrimination Act 1995 dismissed at PHR because Claimant not available to give evidence as to long-term effect of injury – Judge willing to offer . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 07 May 2022; Ref: scu.347412