England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(Mr Commissioner Howell QC)

		Royal Courts of Justice Strand London WC2 Monday, 22nd July 2002

Monday, 22nd July 2002

1. LORD JUSTICE PETER GIBSON: Peter Cave applies for permission to appeal from the order made on 25th March 2002 by the EAT at a preliminary hearing of Mr Cave's appeal from the decision of an Employment Tribunal sitting in London South. The EAT dismissed Mr Cave's appeal and refused him permission to appeal.
2. Mr Cave was employed by the respondent, Borax Europe Ltd ("Borax"), as a European logistics specialist from 13th June 1998 until 30th April 2000 when he was dismissed. He presented an originating application to the Tribunal on 26th July 2000 complaining of unfair dismissal, breach of contract and breach of the Public Interest Disclosure Act 1998. By that last complaint Mr Cave was complaining of a breach of the provisions inserted into the Employment Rights Act 1996 by the 1998 Act which were designed to protect whistleblowing employees. At a directions hearing in November 2000 the breach of contract claim was withdrawn or dismissed. The whistleblowing claims were defined as amounting to a complaint under section 103A of the 1996 Act that he was dismissed because he had made one or more protected disclosures and that his dismissal was automatically unfair. He also complained that his dismissal was unfair under section 98 of the 1996 Act because Borax had purported to dismiss him on the ground of redundancy when he was not redundant and Borax had failed to consult with him or to consider whether suitable alternative employment was available. His complaints were denied by Borax.
3. There was a hearing lasting six days in July 2001 before the Tribunal. The Tribunal in a decision with summary reasons promulgated on 16th August 2001 dismissed his claim under section 103A. In relation to his complaint under section 98, the Tribunal found that the reason for his dismissal was redundancy and, if not redundancy, for some other substantial reason within section 98, namely the reorganisation of the department, as Borax had contended in the alternative. But the Tribunal did find that the dismissal had been carried out unfairly. However, it held that the unfair dismissal occasioned no monetary loss to Mr Cave because had the correct procedures been adopted the result would have been the same. Consequently it made a nil compensatory award.
4. Mr Cave sought a review by the Tribunal of its decision. That was rejected by the Tribunal Chairman by a decision promulgated on 15th November 2001. Because the Tribunal's reasons were summary reasons it was for Mr Cave, if he wished to appeal, to ask in time for Extended Reasons. That is a requirement of the Employment Appeal Tribunal rules if there is to be an appeal. Mr Cave applied for Extended Reasons, but the Tribunal Chairman refused, as Mr Cave was well out of time. However, in mercy to Mr Cave when he sought to appeal to the EAT, he was allowed to appeal against the decision with summary reasons, as those reasons were expressed fairly fully, the decision document being some six pages in length.
5. Mr Cave challenged the finding that he had been dismissed for redundancy. The EAT in its judgment dismissed that ground of appeal on the basis that it involved an appeal against findings of fact by the Tribunal and did not raise an arguable point of law. Mr Cave also objected to the Tribunal's finding that if the reason for dismissal was not redundancy, it was for some other substantial reason. He claimed that that was not pleaded by Borax. But the EAT pointed out that the alternative reason for dismissal was pleaded and in any event the Tribunal's primary finding was that the reason for dismissal was redundancy. Mr Cave also complained that the Tribunal in dealing with the compensatory award had misapplied the principles of Polkey v AE Dayton Services Ltd [1988] AC 344. The EAT rejected that ground of appeal also, on the basis that it was open to the Tribunal to reach that conclusion on the facts. The EAT held that the Tribunal was justified in awarding no compensation when satisfied that the unfair dismissal had occasioned no monetary loss to Mr Cave at all. Mr Cave had other criticisms of the Tribunal decision, but the EAT rejected all of them.
6. Mr Cave in his Appellant's Notice lists no less than 12 grounds of appeal. He has appeared before me today and has emphasised particular points without abandoning any of the grounds set out in the Notice of Appeal. I will concentrate on those which seem to me to be of significance.
7. First, Mr Cave has told me of his firm belief that he did not have a fair and impartial tribunal. This was said in support of his allegation that there has been a contravention of his rights to a fair trial under Article 6.1 of the European Convention on Human Rights. He sought to establish that on the basis of what he says has subsequently occurred at another hearing when he says it was demonstrable that the Chairman was adopting a more rigorous attitude to him. He has told me that Borax appears to have received more lenient treatment when Borax was in contravention of rules. My difficulty with that submission, as Mr Cave fairly recognised, is that I have no evidence whatever in relation to the subsequent hearing or subsequent events. Indeed, I cannot see how they can affect the question whether or not Mr Cave had a fair and impartial tribunal in July 2001 at the hearing with which I am concerned. There is nothing that I can see in the papers before me to make good any such complaint. Indeed, Mr Cave frankly accepted that his complaints are difficult to substantiate.
8. Similar comments can be made in respect of a further complaint that the Tribunal appears to have accepted the evidence of Monsieur Fleury and Miss Denny, who were two of a number of witnesses who gave oral evidence to the Tribunal. Mr Cave has told me that he has a transcript of a taped conversation between Miss Denny and some other person. He has complained that the Tribunal was not prepared to accept that evidence. Again my difficulty is that I have no evidence before me to make good that complaint. I do not know why the Tribunal did not accept that tape. I can speculate as to reasons, but it would be only speculation. There is no transcript of what occurred in front of the Tribunal. There are no Chairman's notes, although Mr Cave has told me he applied for the Chairman's notes. But he has not obtained any order for the production of the Chairman's notes, and in their absence it is really quite impossible for me to reach any conclusion that the Tribunal erred in law in not admitting any particular piece of evidence or in preferring the evidence of Borax's witnesses on a particular point to Mr Cave himself. I would add that Monsieur Fleury was criticised by the Tribunal as being the person responsible for the procedural defect which led to the finding of unfairness. But it is of course open to a tribunal to criticise a person but nevertheless accept his evidence, and that appears to have occurred in this case.
9. Other points taken by Mr Cave in his grounds for appeal in the Appellant's Notice are these. First, he complains of the fact that the Tribunal made a finding that had been excluded at an interlocutory stage. This is a complaint that at the directions hearing it had been held that Borax had not made the assertion that if redundancy was not the reason for Mr Cave's dismissal, then the reorganisation of the department constituted some other substantial reason justifying dismissal. There are, however, two difficulties in his way in this submission, as has been pointed out by the Tribunal Chairman and the EAT. First, the order following the interlocutory hearing does not support Mr Cave on this point. Second, the point is irrelevant, as the Tribunal's primary finding was that Mr Cave was dismissed for redundancy.
10. Mr Cave complains that a statement of losses which he prepared was not taken into account, but the Tribunal has the right to exclude evidence which it does not consider will assist it in its consideration of the complaints before it. Tied up with this point is Mr Cave's belief that the Tribunal incorrectly applied what he calls the Polkey principle. As I understand him, he says that Polkey requires a tribunal to consider the appropriate compensation first, by reference to losses suffered by the employee, and then granting a percentage reduction, even though that may amount to 100 percent. I am afraid that if that is Mr Cave's submission, it accords neither with the law nor the practice. In Polkey it was recognised that there could be cases where no compensation would be recovered even though there had been a procedural failure which rendered a dismissal unfair. Thus Lord Mackay at page 358 approved what Browne-Wilkinson J said in Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91, and at page 364 Lord Bridge said that if taking the appropriate steps which the employer failed to take would not have affected the outcome, that would often lead to the result that the employee recovered no compensation. That is precisely what the Tribunal found as a fact in the present case. There was therefore no point in considering Mr Cave's statement of losses and no error by the Tribunal in its application of Polkey.
11. Then Mr Cave has some complaints in relation to the whistle-blowing provisions in the 1996 Act. He claimed three protected disclosures:

(1)Hazard labels were removed from borates arriving at Rotterdam. This was said to have been disclosed to Mr Cave's line manager in late 1999.

(2)Two workers were working at a height without safety harnesses, as Mr Cave reported to a Mr Harris in 1998.

(3) Compressed air was being used to clear dry spillages. This was said to have been disclosed to a Mr Rainer at the end of 1999.

12. The Tribunal found that Mr Cave had failed to prove (1) and (3). It found that Mr Cave did raise a concern on (2) in the summer 1998, but said that the disclosure had no connection whatever with the dismissal by Monsieur Fleury in January 2000. Accordingly the section 103(A) claim failed. In this context, I emphasise again that the Tribunal heard oral evidence from witnesses such as Monsieur Fleury as well as Mr Cave himself. The Tribunal, as the tribunal of fact, was entitled to prefer one witness' evidence to that of another witness and to find as it did.
13. Mr Cave also finds fault with the Tribunal for not providing Extended Reasons. But I am afraid it was his own fault in failing to comply with the rules and to apply for such reasons in time, and I can see no real disadvantage that Mr Cave has suffered by the EAT generously allowing him to appeal even though his tackle was not in order.
14. I will not lengthen an already long judgment further. I have considered all the points which Mr Cave has taken, but I am afraid that I have reached the clear conclusion that he has no real prospect of success on any of them. Nor is there any other compelling reason why this appeal should go ahead.
15. Accordingly I must dismiss this application.
Order: Application dismissed.