England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Wednesday, 5th December 2001

1. LORD JUSTICE PILL: This is an application for permission to appeal part of an order of the Employment Appeal Tribunal made on 6th September 2001, Mr Recorder Underhill QC presiding. The order was made on the preliminary hearing of the appeal of Mr Adrian Hall, the appellant, against the decision of the Employment Tribunal made on 16th January 2001 whereby it was found that the appellant had unlawfully deducted a sum of £3,200.38 from the wages of Mr Joseph Louei, the respondent.
2. I propose to refer to the facts of the underlying dispute only very briefly. There is to be a further proceeding in any event in that on one of the points raised at the Employment Appeal Tribunal that tribunal has ordered that the appeal proceed to a full hearing. That is the issue as to whether it was the appellant or the Polygon Corporation Ltd which employed the respondent at the material time. The respondent alleged that he had worked for Mr Hall for a period in the early part of 2000. He claimed to have worked as manager of the Astor Hotel in Plymouth owned by the Polygon Corporation Ltd, a company with which the appellant is associated. Earnings were claimed by the respondent in an application to the Employment Tribunal made on 7th September 2000.
3. The tribunal found that the respondent was a worker for the purposes of the Employment Rights Act 1996. He was employed by the appellant personally, not by the Polygon Corporation Ltd, and that there had been an agreement that the respondent would be paid at the rate of £200 net a week. It was found that the respondent had begun work on 7th February 2000, that a payment of £2,000 made to him after 12th April 2000 was in respect of services provided prior to February 2000. A finding was made as to what the respondent had received by way of remuneration. It was held that the figure I have mentioned was due to him from the appellant.
4. In advance of the preliminary hearing before the Employment Appeal Tribunal the appellant had prepared a detailed skeleton argument which is with the bundle of documents he has submitted to the court. That makes a number of criticisms of the chairman of the Employment Tribunal and the way in which the application to him had been conducted.
5. Shortly before the hearing at the Employment Appeal Tribunal the appellant was approached by a representative of ELAAS - the Employment Law Appeal Advisory Scheme - which, as I understand it, is a scheme operated by the Bar to provide free representation to parties before the Employment Appeal Tribunal. Legal aid is not available for appearances and, of course, technical legal points often arise. The appeal to the Employment Appeal Tribunal is only upon a point of law. The appellant agreed to be represented by Mr Laddie. He does say that it was all at short notice. The sequence of events, to which I do not propose to refer in detail, is set out in the appellant's skeleton argument prepared for this court at paragraphs 2 and 3 (pages 10 and 11 of the bundle).
6. Counsel Mr Laddie prepared a skeleton argument and made oral submissions to the Employment Appeal Tribunal. He had reduced the grounds of appeal to two. They are set out in the skeleton argument he prepared which is also in the bundle. The first ground of appeal is stated as "identity of Mr Louei's employer"; that runs to three pages. There is then a second ground of appeal - bias - supported by a single paragraph. When addressing the tribunal Mr Laddie, as recorded by the Employment Appeal Tribunal at paragraph 5 of their judgment, abandoned other points which had been included in the appellant's skeleton argument.
7. The Employment Appeal Tribunal stated at paragraph 5:

"However, at this hearing he [the appellant] has been represented by Mr Laddie, under the ELAAS Scheme. He has taken only the two points set out in his skeleton argument. Having taken express instructions from the appellant, he confirmed that all other points are abandoned."

8. Mr Hall is fulsome in his compliments to Mr Laddie as to how the first point was presented to the tribunal. He accepts the point had been very fully researched by Mr Laddie and was successful at least to the extent that the matter is to be heard at a full hearing.
9. The appellant said that the second point of bias was dealt with shortly. Mr Laddie attempted to address the Employment Appeal Tribunal and was pulled up in that endeavour, the chairmen indicating that he would "not allow him to continue this argument". The appellant also in the same paragraph of his skeleton argument said that -

"the chairman questioned Mr Laddie's ability to prove bias, when he had not been present at the Industrial Tribunal hearing."

10. The points which the appellant seeks to place before the Employment Appeal Tribunal are now helpfully summarised by him in the skeleton argument to which I have referred:

"(ii) The Claimant, who had no documentary evidence, failed to prove his case. His only witness was discounted, by the chairman. In addition, the chairman wrongly blamed the respondent for the overall lack of evidence. The chairman accepted the claimant's verbal evidence over the respondents, despite the fact that there was no evidence to back it up (and despite the fact that he fully accepted that part of his verbal evidence was dishonest).

(iii) Discrepancies and inaccuracies within the chairman's Extended Reasons and reply to the respondent's affidavit.

(iv) The chairman ignored the documentary and verbal evidence, which clearly indicated that the claimant had been dishonest. The respondent considered the chairman's decision to be a compromise, due to his confusion. In the opinion of the respondent, as a result of such confusion, the chairman was punishing the respondent. Consequently, there was bias. The onus was on the claimant to prove his case."

(The "respondent" reference is to the present appellant, Mr Hall, who was the respondent to the application at the industrial tribunal.)

11. In addressing the court orally the appellant has underlined that the hearing at the Employment Tribunal was "one man's word against another". He submits that the chairman was helping the respondent. There was no discipline at the hearing. He considered it was for the respondent to produce appropriate documentary evidence which he failed to do. A witness he called was discounted. The chairman appeared to be confused and was not thinking logically. The appellant said he had been involved in a serious accident before the hearing. Comments of the chairman have been obtained and they are in the bundle. The appellant's central complaint is that he feels very aggrieved by the findings of fact of the Employment Tribunal. He believes that there should be safeguards against findings of fact of this kind. He submits that the respondent's evidence was total lies or dishonesty. He sees the force of Mr Laddie attempting to convert the allegations which had been made in the earlier skeleton argument into an allegation of bias, having regard to the view the appellant takes of the hearing before the Employment Tribunal.
12. I sought to explain to the appellant that the Employment Tribunal is the fact finding tribunal under the statute which creates the employment jurisdiction encompassing this court, the Employment Appeal Tribunal and the Employment Tribunal. There is an appeal from the Employment Tribunal to the Employment Appeal Tribunal and from the Employment Appeal Tribunal to this court only upon a point of law. Parties are very frequently aggrieved and feel very strongly about findings of fact adverse to them in the Employment Tribunal. The system set up by Parliament provides that it is that body which finds the facts. I do not find it at all surprising in the circumstances that Mr Laddie was not permitted to address the Employment Appeal Tribunal upon the facts at any length. He had endeavoured to turn the allegations into an allegation of error of law by alleging bias.
13. Putting it in that way, I am in no way criticising Mr Laddie who, I am confident, was doing the best he could on behalf of the appellant. He understood that there could be no successful appeal against the finding of fact and that the only prospect was one of showing that the findings of the chairman and his approach to the case were such that bias was present and that, as a matter of law, the Employment Appeal Tribunal should intervene. Had it been the appellant himself presenting the submissions to the Employment Appeal Tribunal, I would have expected him to receive the same response.
14. The appellant does make the point that he took it badly when he was there and could give a description of what had happened at the Employment Tribunal and yet he had entrusted his case to Mr Laddie who was told by the Employment Appeal Tribunal judge that the point could not be pursued because Mr Laddie had not been present. I follow that. But I cannot see that it has any bearing on the outcome of the hearing before the Employment Appeal Tribunal or the hearing before this court. I acknowledge the embarrassment the appellant says he felt when a document which he had put in the bundle for presentation to the Employment Appeal Tribunal could not be found either by the presiding judge or by counsel. He was made to feel that he had done something wrong when he had not. He did produce another copy of the document. Unfortunate though that incident was, it cannot possibly have had any outcome upon the finding of the Employment Appeal Tribunal.
15. As presented to this court by the appellant, the claim is essentially one that the findings of fact should be reversed. It is not, in my judgment, arguable that this court would, upon a full hearing, direct the Employment Appeal Tribunal to hear the arguments which Mr Hall seeks to put forward. The matter was dealt with succinctly by the Employment Appeal Tribunal in this way at paragraph 11:

"The second [ground] is headed `Bias'. It is very short. It amounts to a submission that the chairman's conduct, firstly in mis-stating or overlooking, if he did, the effect of the oral evidence as to the cheque, and secondly in believing the evidence of Mr Louei in circumstances where, on another part of the case, he had found that he was advancing an exaggerated claim, was so bizarre as to give rise to an inference that he was biased. We need only say that neither of those considerations come within any measurable distance of establishing even a prima facie case of bias and we do not permit the appeal to proceed on that ground."

16. There is no arguable basis on which that finding of the Employment Appeal Tribunal would be reversed.
17. The appellant will have his hearing upon the first of the points raised - the question of identity of the respondent's employer. It may be - I do not rule out this possibility - that in presenting his case on that ground he will be permitted to refer to other parts of the evidence which do not directly relate to that ground but may throw light upon the issue. However that is entirely a matter for the Employment Appeal Tribunal as to what parts of the evidence they consider to be relevant to that part of the case upon which the appeal has been permitted to proceed. For the reasons I have given this application must be refused.
Order: Application refused