England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Tuesday, 12th March 2002

1. LORD JUSTICE MUMMERY: This is an application made by Mr Patrick Murphy in person for permission to appeal. He wishes to appeal against the decision of the Employment Appeal Tribunal on 23rd November 2001. As explained in the judgment given on behalf of the Tribunal by His Honour Judge Levy QC, it was decided to dismiss Mr. Murphy's appeal against the decision of the Employment Tribunal, which had rejected his claim for unfair dismissal by his former employers, Quality Commissioning Limited. The Employment Tribunal, having heard a number of detailed complaints by Mr. Murphy about the way in which the Employment Tribunal hearing had been conducted, stated that they were not satisfied that there had been any prejudice or unfairness to Mr Murphy in the course of the hearing.
2. The Employment Tribunal had given their extended reasons for their decision on 9th June 2000. Their unanimous decision was that Mr Murphy's claim for unfair dismissal was dismissed. They found that he had been employed on site as a project technician working in marine on and offshore construction between 27th May 1998 and 16th December 1998. The Tribunal, having heard the evidence from Mr. Murphy and from the witnesses for Quality Commissioning Limited, concluded in paragraph 7 of the extended reasons that:

"The only reason for the applicant's dismissal was redundancy in a genuine redundancy situation. It followed from this finding that none of the matters set out in section 100 of the Employment Rights Act 1996 (Health and Safety Cases) arose for the Tribunal's decision."

3. It will be appreciated that the importance of the period of employment is that, if the reason for dismissal was, as held by the Employment Tribunal, redundancy, then there was no unfair dismissal and Mr. Murphy was not entitled to bring a claim for unfair dismissal because he had not served the qualifying period of employment, which is one year. The health and safety cases referred to do not require a qualifying period of service.
4. Mr. Murphy sought to bring his case within the health and safety provisions. He attempted to do that on the basis that, soon after he began his employment, Quality Commissioning attempted to change the shift patterns, which had previously been six days on, one day off, to 12 days on, two days off. Mr. Murphy contended that there were health and safety matters arising from the new shift patterns which he and other employees were required to work. Mr. Murphy complained that working 28 days involved health and safety matters, which entitled him to bring those matters up before his employers and, when he was dismissed, to rely on the provisions of section 100 of the Employment Rights Act 1996. Quality Commissioning Limited's case was that the reason for Mr. Murphy's dismissal was that they had been instructed by clients to reduce the work force by nine technicians and there was therefore a redundancy situation. That was the case which the Tribunal accepted.
5. The main points made by Mr. Murphy relate to the way in which the hearing was conducted in the Employment Tribunal and, more particularly, the way in which Quality Commissioning Limited conducted their case. In order to understand the points he makes, I should refer to the fact that at an early stage in his proceedings, which he started in March 1999, Quality Commissioning attempted to strike them out. That came before the Employment Tribunal chairman on 12th May 1999. The Employment Tribunal decided that it was not a suitable case to strike out at a pre-hearing but instead that directions should be given for the conduct of the case. They made these directions: that within 14 days of 12th May 1999 each party was to exchange a list of documents which they have or have had in their position and supply copies to the other side on request within seven days; that Quality Commissioning were to produce a single bundle of documents for the use of the Tribunal, and that each party was to exchange statements of witnesses of fact seven days prior to the hearing. The Tribunal explained in paragraph 6 of that decision why they were giving these directions.
6. Mr. Murphy's main complaint is that he did not have a fair hearing before the Employment Tribunal, because Quality Commissioning did not comply with that order. What happened was that when the full hearing came on in March 2000 he was disadvantaged by the late service of bundles, which were not numbered and did not account for some of the documents which should have been produced. The result was that he did not have enough time to master these documents and absorb the information in them. What the Tribunal should have done was to grant him an adjournment to give him time to do this. He also says that he was shocked by the appearance of new witnesses. Some of the witnesses who were said to be coming did not come. No statements were provided as ordered by the Tribunal on 12th May 1999. These irregularities meant that the importance of certain documents was not appreciated. He has referred me to a number of instances where he says that, as a result of this shambolic way of handling the proceedings, the Employment Tribunal did not fully appreciate his work pattern and did not appreciate in one particular case the reason why he was absent from work. That is a summary of what Mr. Murphy has explained in much greater detail by reference to the lists of documents and by reference to the chairman's notes. In particular, he has shown me a list of documents to be presented to the Tribunal where item 17A is called "miscellaneous information" and was not provided to him until the hearing.
7. In addition to failure to comply with the terms of the order, Mr. Murphy referred to the comments made by Mr. Recorder Underhill about the procedure at the hearing when the Employment Appeal Tribunal first considered Mr. Murphy's appeal at a preliminary hearing on 29th January 2001. Having made a list of the points which had been raised about the documents and witness statements, the Recorder said that there was an arguable question whether Mr. Murphy could have had a fair hearing in circumstances where there had been such a serious disregard of interlocutory orders and that the Tribunal should have taken more positive steps than it appears that it did to see that any such disadvantage suffered by Mr. Murphy was removed. It was noted in particular at the hearing before the Employment Appeal Tribunal that there was no mention at all in the extended reasons for the Employment Tribunal's decision about the difficulties which Mr. Murphy encountered in presenting his own case, and when the chairman's notes were produced, as directed by the Appeal Tribunal, there is only occasional reference to objections which Mr. Murphy had raised and dissatisfactions that he had expressed about the problems of coping with the case as a result of the way that Quality Commissioning had dealt with their preparations. So, Mr. Murphy contends, there should be a retrial. That is what he seeks in his notice of appeal, where he summarizes his grounds very helpfully as follows, stating that they were errors of law. I quote:

"The judge at the EAT erred in law in finding that there had been a fair procedure adopted at the Employment Tribunal. In particular

1. The difficulties caused by the late submission of documents (on the day).

2. The documents I received very late and the ones I received on the day were not numbered in the same way as the respondent's and the Tribunal's.

3. Difficulties caused by the late submission of witnesses (on the day) having prepared myself for witnesses previously declared by the respondent.

4. The absence of witness evidence not seen until during the hearing.

5. The failure to recognise the gross and serious breach of orders from a previous Tribunal Chairman which apply to the above grounds.

6. The EAT approved the procedure followed in the Employment Tribunal which itself was a breach of natural justice.

7. The EAT failed to recognise the seriousness of an error on the Employment Tribunal's part.

8. The importance of procedural fairness has been diminished in favour of the 'unarguably right' clause."

8. What I have quoted is a helpful summary of the main points which Mr. Murphy made to the Appeal Tribunal and has repeated on this application.
9. On this application I have to be satisfied that the appeal which Mr. Murphy wishes to bring to a full hearing has a real prospect of success. In deciding that I have to bear in mind, as the Appeal Tribunal did, that appeals in employment matters, which originate in the tribunals, are limited to questions of law. A question of law can arise out of a procedural irregularity. But in many cases there can be a procedural irregularity in an employment tribunal without giving rise to any error of law which should be corrected on appeal. The reason for that is the wide terms in which the regulations governing the procedure of employment tribunals are framed. In the 1993 regulations, which were in force at the time of this hearing, it was provided by regulation 9:

"1. The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall conduct the hearing in such manner as it considers most suitable to the clarification of the issues before it and generally for the just handling of the proceedings."

10. That means that the tribunal has a wide discretion to conduct the hearing in such manner as they think is just. They are entitled to conduct the proceedings in a way different from that which would apply in a normal court. They are even entitled to allow the proceedings to be conducted in a different way than they have previously set out in one of their own orders. It is surprising in this case that, having made detailed directions to Quality Commissioning about the preparation of bundles of documents and service of witness statements, the Tribunal did not apparently take a more adverse view than they did about the failure of Quality Commissioning to comply with the order. Orders are made for the purposes of being complied with. I am surprised that in this case the Employment Tribunal apparently did not see fit to comment in their decision on the failure of Quality Commissioning to comply with the clear terms of the order made on 12th May 1999.
11. However, I have to ask myself whether it was an error of law for the Tribunal to continue with the hearing without making Quality Commissioning comply before proceeding further, and whether they should have granted an adjournment to Mr. Murphy in order to enable him to deal with the documents, served late and not in a proper state, and to deal with the absence of witness statements. On balance, I have come to the same view as the Appeal Tribunal, that, although this was a most unsatisfactory state of affairs, no injustice has resulted from the failure of the Tribunal to insist on Quality Commissioning observing the terms of the earlier order. I appreciate that their failure to do so caused difficulties to Mr. Murphy acting in person. It would cause difficulties to a legally qualified representative having to deal with matters in a different manner than was anticipated by the Tribunal's own order. But I do not think that there is a real prospect of Mr. Murphy establishing that the consequence was so serious as to constitute an error of law or to result in an injustice. It seems to me from the papers that were available that the Tribunal, notwithstanding this unsatisfactory procedure, was entitled to come to the conclusion that the reason for Mr. Murphy's dismissal was redundancy and not health and safety matters, as he had alleged. In those circumstances, I do not think that this appeal has a real chance of succeeding. It would not be doing any service to Mr. Murphy to allow him to proceed with an appeal, which is likely to fail and which would also be likely to have the consequence that Quality Commissioning would be entitled to claim against him the costs of his unsuccessful appeal. In those circumstances, I would refuse this application, while fully understanding the sense of grievance that Mr. Murphy feels about the failure of his former employers to observe the order of the Tribunal in the way in which they should have. The application is therefore refused.
Order: Application refused.