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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Mallinson v Bournemouth Polytechnic [1992] UKEAT 549_92_2409 (24 September 1992)
URL: http://www.bailii.org/uk/cases/UKEAT/1992/549_92_2409.html
Cite as: [1992] UKEAT 549_92_2409
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At the Tribunal
Before
THE HONOURABLE MR JUSTICE WOOD MC (P)
MRS M E SUNDERLAND JP
MR G H WRIGHT MBE
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellant DR W D E MALLINSON
(The Appellant in Person)
For the Respondents MR S B OUGHTON
(Solicitor)
Messrs Steele Raymond
Solicitors
Vandale House
Post Office Road
Bournemouth
BH1 1BX
MR JUSTICE WOOD (PRESIDENT): In this case Dr Mallinson is an Applicant before an Industrial Tribunal at Southampton and is alleging that he was unfairly dismissed by his employers the Bournemouth Polytechnic. His employment began with them on the 3rd October 1988 and ended on 31st December 1991. Attached to his Originating Application is a document, in the form of a statement, stretching over some 4 pages setting out his case. He clearly feels that he was intimated, in essence was forced to leave, and that he was constructively dismissed. The facts are all set out there. He alleges serious errors in the administration.
The Respondents filed their Notice of Appearance on the 21st April of this year. The defence is a very short one. The plea is that the Applicant was not dismissed, his employment was terminated on the 31st December 1991 by mutual agreement. The Polytechnic, as employers, rely upon the terms of a written agreement dated the 30th December 1991, which they say was reached after Dr Mallinson had received assistance and legal advice from his trade union; they annex a copy of that agreement. Under it, Dr Mallinson was to receive £35,000 free of tax, he has received that and it is in his Bank.
The Polytechnic deny intolerable psychological pressure to sign the agreement or that he was forced to leave and they say, therefore, because there was no dismissal, there was no jurisdiction in the Industrial Tribunal to hear his claim of unfair dismissal.
This case, on paper, looks extremely straightforward; it may be that the issues are straightforward; it may be that as matters evolve they become more complicated, but at first sight looking at those pleadings the issues are fairly clear.
In the preparation of this case there is already in existence from Dr Mallinson a bundle of documents, approximately 600, and there are some other documents, I think, separately prepared by the respondent employers. There are also some tapes in existence which will last, probably for some 5 hours, of which there will need, in due course, to be a transcript if Dr Mallinson wishes to rely upon them. It is abundantly clear, therefore, that there is a great deal of material which may or may not need to be digested by the industrial tribunal when it starts its inquiry. Indeed, some time may well be taken up in the reading of that documentation by the members of the tribunal. However, the procedure and how the matter is arranged is entirely within the discretion of the learned Chairman who will hear the case.
In the course of the interlocutory proceedings an Order was made by one learned Chairman about the hearing in September and there was a further Order made by the learned Regional Chairman, Mr Rich, in connection with witness orders and discovery. The interlocutory Order is dated 10th July 1992 and requires that both parties to deliver lists of documents within 21 days, that is by the 31st July, and then there is an Order for production of a personal file and for certain correspondence.
Dr Mallinson had made a most extensive application for discovery and inspection and also had asked for further witness orders which were refused. He already has 7 witness orders, so those witnesses must turn up at the hearing and he asks for a number more, a further 6 whom he mentioned to us.
The learned Regional Chairman, exceptionally, gave a written Reasons for his Decision. They spread over some two pages. We do not need to refer to his reasoning in detail because it seems to us that the summary of what he decided to do and the nub of his Decision was to say to himself "upon these pleadings and hearing Dr Mallinson, it is likely that a wide spectrum of facts, story, history is going to be sought to be laid before us, and I", and this is the Chairman speaking, "think that it is probably best in everyone's interests for many, many reasons that we start the hearing and then see whether we need to have further Orders of an interlocutory nature." So, having ordered that part which I have referred to, by way of discovery and inspection he refused further discovery and refused further witness orders. Dr Mallinson has appealed against that Order.
It is clear as the result of a letter of the 31st July that the way in which the hearing is going to be conducted has been altered slightly, but it is set out there, quite clearly, the way in which the Industrial Tribunal intend to proceed. Dr Mallinson does not agree with the decision of the learned Chairman, and indeed he was refused the majority of what he had been asking for. It is not therefore surprising that he thinks it was wrong.
We have explained to him that the principle of law involved here is that the learned Chairman was exercising a very wide discretion in reaching his conclusion as to the appropriate Order to make, and unless Dr Mallinson can show that Decision fell outside the ambit of that broad discretion, in other words, that it was plainly wrong, or the learned Chairman had failed to take into account some essential factor, or had taken some factor into account that he should not have taken into account, then it is impossible for us to interfere with it. We are unable to discern in his Reasons or in any of the facts that have been presented to us by Dr Mallinson, any error in law on the part of the learned Chairman. However, we would go further, and as we have each of us, the three Members here today, have tried to explain to Dr Mallinson, and indeed, in fairness to him, I do not think he had realised it before, merely because the Orders had been refused before the hearing started does not mean that in due course those Orders, or different Orders, will not be made if the Tribunal feel that the issues to which those Orders are to be made are relevant, and that it is reasonable and fair, as between the parties, to make those Orders. As I said, and I repeat, it seems to us that the approach of the learned Chairman is precisely the approach which we ourselves would have made, although it is not for us to exercise our discretion, because so often, by starting a case, and hearing what it is all about, it is possible to analyse and thereby to narrow or expand the area of enquiry. It saves time, it saves costs, it also avoids unnecessary exacerbation of relationships. The issues here are clear. We have looked at the whole of the documentation, it is now some 90 pages and some more as well, we have read the many letters and without being rude to Dr Mallinson I think we have managed to understand all of them, except some small passages here and there because of his writing, but we have read it all and we have digested it all. We read it last night and we have been able to discuss it and think about it and there are particular points that I think I ought to deal with.
One, Dr Mallinson felt that the witnesses should all be there on day one so that they could hear his opening and should therefore be able to understand why he wanted to call them. We explained to him that the convenience of witnesses was very much a part of the arrangements made by any court during a trial, and I think he understood that. He also made a complaint that the Solicitor acting for the Polytechnic had approached one of his witnesses and asked about his, Dr Mallinson's, background. We do not know the full circumstances of that matter, but there is no property in a witness, and unless there was some impropriety on behalf of the Solicitor, it seems to us that there is nothing for us in that point.
It follows therefore, that although we have got a clear note of all the points made, those are the essential matters and I am afraid that there is nothing we can do to help Dr Mallinson in this appeal. He must just appear on Monday before the Tribunal with his documents and his notes and himself prepared, and then tell them what his case is all about because thereafter they will move forward and come to a conclusion at the end of it. So we cannot help you Dr Mallinson but I hope you understand why. This appeal is dismissed.