England and Wales Court of Appeal (Civil Division) Decisions

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

		The Royal Courts of Justice The Strand London Wednesday 10 April 2002

Wednesday 10 April 2002

1. LORD JUSTICE PILL: This is an application for permission to appeal against a decision of the Employment Appeal Tribunal dated 18 January 2002, which followed a hearing on 23 November 2001. The EAT dismissed the appeal of Mr Francis R Neckles, the applicant, from a decision of the Employment Tribunal held at Leeds.
2. The Employment Tribunal considered a number of applications by the claimant, Mr Neckles, including that in case number 1806977/99, and gave a series of rulings following a hearing on 21 August 2001. The two which apply to the case I have identified by number are at paragraphs 2 and 3 on page 44 of the bundle:

"2. That the Applicant's complaint in case No 1806977/99 is struck out on the grounds that the manner in which those proceedings have been conducted by or on behalf of the Applicant has been scandalous.

3. Alternative to the finding in 2. above, that part of the Applicant's complaint case 1806977/99 is struck out by reason of the lack of jurisdiction of the Tribunal to consider the matters of which complaint is made."

3. The Employment Appeal Tribunal, His Honour Judge Pugsley presiding, considered only the first of those rulings. It ruled against the claimant and dismissed his appeal. The EAT then added (paragraph 25, page 25 of the bundle):

"It follows from our decision that the appeal is dismissed on the basis that it was within the discretion of the Tribunal to strike out the Appellant's action because it was scandalous, or in the alternative we would say that as a matter of robust reality, because the conduct was unreasonable. The appeal is dismissed. The issue of the appeal on the point of jurisdiction therefore does not fall to be determined. The issue could only be raised if our decision on the striking out was reversed on appeal."

4. The order of the EAT having recorded that the appeal was dismissed in accordance with the judgment, added (page 13 of the bundle):

"AND UPON the application of the Appellant for leave to appeal out of time in relation to the issue of jurisdiction

THE TRIBUNAL FURTHER ORDERS that leave be granted for the Appellant to serve grounds of appeal in relation to jurisdiction within 21 days of receipt of the Judgment of the Employment Appeal Tribunal."

5. The claimant has appealed against the dismissal of his appeal to the Employment Appeal Tribunal.
6. I mention the number of the case because the claimant has a number of proceedings. I have referred to the fact that there were several -- in fact seven -- cases before the Employment Tribunal on 21 August 2001. I have identified by number the case which is material for present purposes. The EAT number of the case is EAT/1267/01 and the EAT's decision, which begins at page 14 of the bundle, has that appeal number assigned to it.
7. The claimant submits that the Employment Tribunal erred in law in deciding that his claim should be struck out. His submissions are set out in his notice of appeal, in a skeleton argument which has been supplied to the court and in oral submissions this morning. The only matter upon which the court can adjudicate is the striking out identified at paragraph 2 of the rulings of the Employment Tribunal. In my judgment the EAT were entitled, as they did, having found against the claimant on that ground, not to go on to consider the second issue of jurisdiction on which the Employment Tribunal had ruled at paragraph 3, which I have quoted. That question would only arise if the claimant succeeds in having the striking out quashed and to that extent the case revived.
8. I have considered the notice of appeal and skeleton argument. In his oral submissions Mr Neckles has claimed that the Employment Tribunal acted beyond their jurisdiction and made other errors. They struck the claim out for reasons which are set out in detail in their judgment at pages 48-51 of the bundle, paragraphs 10-15. A transcript, or what appeared to be a transcript, of evidence of a previous hearing was placed before them. For reasons which they set out in their judgment, they took the view that the conduct of the claimant before them was scandalous. At the conclusion of the paragraphs to which I have referred they state:

"Since the conduct was scandalous, we know of no reason why we should not exercise our discretion to strike out the proceedings and, indeed, no argument to the contrary was raised by the Applicant or by his representative."

9. The applicant was represented, though not legally represented, both before the Employment Tribunal and the Employment Appeal Tribunal. The Tribunal concluded:

"... without any doubt, that the transcript had been made from an unauthorised tape recording."

10. They go on to state that the claimant was not willing to give evidence before them and they regarded the absence of any explanation for the production of what appeared to be a tape recording of earlier proceedings of an Employment Tribunal as conduct in breach of section 9 of the Contempt of Court Act 1981. They held that they were entitled in the circumstances to exercise the power to strike out the claim. That power, set out in the judgment of the Employment Appeal Tribunal, is in rule 15(2)(d) of the Employment Tribunal Rules of Procedure 2001:

"subject to paragraph (3), at any stage of the proceedings, [the Tribunal may] order to be struck out any originating application or notice of appearance on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant or, as the case may be, respondent has been scandalous, unreasonable or vexatious ... "

11. In his oral submissions this morning the claimant submits that it is an important question whether or not his conduct amounted to a breach of section 9 of the Contempt of Court Act. He submits that in so finding the Employment Tribunal were acting beyond their powers. Moreover, the burden of establishing contempt was not upon him but upon the respondents and, on the evidence, that burden had not been discharged. The evidence, submits the claimant, was flimsy: the respondent (Yorkshire Rider Ltd trading as First Huddersfield) should have produced more evidence, the burden being upon them. Questions which should have been asked if a finding was to be made by the Tribunal, and before it was made, were not asked. The facts were not adequately addressed. The heavy burden of proof had not been discharged.
12. I have referred to the fact that the Employment Tribunal gave a reasoned decision on this issue. Moreover, the Employment Appeal Tribunal considered the matter in detail and also gave a reasoned decision at paragraphs 12-25, that reasoning being supported by appropriate reference to authority. The question was whether the Employment Tribunal had erred in law in their decision to strike out, having regard to the discretion which they have under rule 15(2)(d).
13. I am not able to accept the submission of the claimant that he has an arguable case that this appeal should be allowed. The fact-finding tribunal is the Employment Tribunal. In my judgment they were entitled to make the findings they did. They were entitled to have regard to section 9 of the Contempt of Court Act in considering whether they were entitled to exercise their discretion to strike out. It was not a finding of fact which was perverse, nor can it be argued that there was no evidence to support it.
14. This morning Mr Neckles has tendered apologies to the court. He has raised possible explanations as to the origin of the transcript. He strongly denies that he made the unauthorised transcript of the earlier proceedings, and he submits that he received the transcript in good faith.
15. As I say, it is the Employment Tribunal which is the fact-finding tribunal. It was for them to decide the issue upon the evidence presented to them, which undoubtedly included what appeared on the face of it to be a transcript of employment tribunal proceedings. It is not for this court to retry issues of fact which the claimant and his representative had the opportunity to raise before the Employment Tribunal. The Tribunal took the view that an explanation was required from him and no explanation was forthcoming. In those circumstances, they decided to exercise their discretion to strike out the action on the grounds stated.
16. In their reasoning, with which I respectfully agree, the Employment Appeal Tribunal have taken the same view. There is a discretion in an Employment Tribunal and neither the Employment Appeal Tribunal nor I consider that there was any improper use of that discretion or that it is arguable that the Employment Tribunal were wrong in law in reaching the decision they did. I do not propose to set out in detail the reasoning of the Employment Appeal Tribunal. It appears in the bundle of documents in the paragraphs to which I have referred. I agree with it. In my judgment there is no arguable case that, if permission were granted, this court would reverse the decisions below and permit the application to the Employment Tribunal to continue.
17. For those reasons, permission to appeal is refused.
ORDER: Application refused