United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 71_93_0903

Appeal No. EAT/71/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9th March 1993

Before

THE HONOURABLE MR JUSTICE WOOD MC (P)

MR A C BLYGHTON

MISS A P VALE

---

SELECT PLASTICS LIMITED          APPELLANTS

MR J S HOLLAND          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellants MR P BATER

Solicitor

Messrs Hugh James

Jones & Jenkins

Solicitors

Arlbee House

Greyfriars Road

Cardiff

CF1 4QB

For the Respondent MR R LAWSON

Counsel

Legal Protection Group Ltd

Marshalls Court

Marshalls Road

Sutton

Surrey

SM1 4DU


 


MR JUSTICE WOOD (PRESIDENT): By a decision contained in a letter dated 30th December 1992 and Industrial Chairman refused to stay proceedings in an Industrial Tribunal pending the hearing of other proceedings in the High Court. The terms of the letter are as follows:

"MR J S HOLLAND V SELECT PLASTICS LIMITED

On the basis of your letter of 21 December 1992, the IT3 and the defence and counterclaim in the High Court proceedings, it appears that the question before the tribunal differs from the question before the High Court.

The High Court proceedings relate to the contractual question of wrongful dismissal, whereas the tribunal proceedings relate to the statutory question of unfair dismissal and the tribunal will not make a finding as to whether or not there was gross misconduct. It will decide whether or not the respondents genuinely believed and had reasonable grounds for believing there had been gross misconduct and whether they acted fairly within the meaning of the 1978 Act.

Your application for a stay is therefore refused and the case will be listed for hearing."

From that decision the Company now appeal.

The chronology is as follows: The Applicant, Mr Holland was the founder of the Company in 1985, but by the time that is relevant for our present consideration, namely in 1992, he was employed under a service contract of the 6th March 1992; it was to last until the 1st December 1994, on twelve months' notice. There was a clause that it could be terminated for his gross misconduct.

On the 21st August 1992 the Chief Executive of the Company sent to Mr Holland a letter in which he made a number of allegations of gross misconduct. The first two alleged breach of specific instructions given by the Chief Executive. The third related to false and misleading expenses claims. The fourth to engaging a solicitor and paying him without the agreement of the Company, then there is removing property, over-paying his wife and directing some other correspondence.

There was a Board meeting, Mr Holland had his say. He was dismissed for misconduct. The reaction on his part was to issue a writ so that the first proceedings that were issued in this dispute between Mr Holland and the Company was that writ; it was on the 2nd October 1992. It was not until 23rd October 1992 that the Originating Application was issued. There was correspondence between the solicitors for the Company and the Regional Offices of the Tribunal by the letter of the 4th November and there was a further letter from Mr Holland's representatives of the 20th November. The Defence and Counter Claim is dated the 25th November and a request for Further and Better Particulars of Defence, the 7th December. On the 21st December the Notice of Appearance and a letter was sent to the Tribunal; there was an application for a stay. It was as a result of that application that the letter of the 30th December was written. Apparently, there was no request here for an oral hearing but that is a matter for the parties, I have no doubt if there had been a request it would have been granted, but there was no request and so the decision was given on paper. The reply to Defence and Counter Claim was dated the 18th January 1993.

Before this Court can interfere with the decision of the learned Chairman of the 30th December we must apply the Wednesbury rules, that a factor which should have been taken into account was not; that a factor which should not have been taken into account was taken into account or the decision was plainly wrong.

We note first of all that no authority is referred to in that letter. Secondly, there is no reference to particular application of the law to the facts of the case. There is also no mention of the writ, but we think it must have been in front of the learned Chairman because of the correspondence.

What then is the position in law as to the exercise of that judicial discretion? There have been two recent cases, decisions by this Tribunal, which were simply two out of a substantial number of cases which have come before us. The second of the two is the case of Bowater plc v. Charlwood [1991] ICR 798, the facts of the case are not particularly important and we look for the principles to be derived. The First Castle Electronics Ltd v. West [1989] ICR 72 and Warnock v. Scarborough Football Club [1989] ICR 489 were considered by us in Bowater together with the more recent decision at that time of O'Laoire v. Jackel International Limited (No.2) [1991] ICR 718. Having looked at the position of the law in that case, in a division of this Tribunal over which I presided, and sitting with me were Mr Blyghton sitting with us today, and Mrs Sunderland, who are vastly experienced in these matters, we came to the conclusion that the principle to be applied now was that stated at p.804 between C and E where we said:

"Bearing in mind therefore the changes identified by the industrial members; the decision of the Court of Appeal in O'Laoire v. Jackel International Ltd (No.2) and the new regulations which are to be introduced giving jurisdiction in claims for wrongful dismissal up to £5,000; in exercising our discretion in today's climate the correct basis for the question to ask ourselves is: `In which court is this action most conveniently and appropriately to be tried bearing in mind all the surrounding circumstances including the complexity of the issue, the amount involved, the technicality of the evidence, and the appropriateness of the procedures?' These factors and many others have already been considered in such cases as First Castle Electronics Ltd v. West [1989] ICR 72 and Warnock v. Scarborough Football Club [1989] ICR 489."

It is also to be noted from Bowater that at page 803 at B we made the point that:

"that was not a case in which the employers were trying to prevent a hearing at the industrial tribunal by issuing a writ. This writ was issued by the employee."

The writ in that case was issued by the employee, and on the facts of that case the writ was issued after the Originating Application. In the present case the position is even more pointed, because here the writ was issued by Mr Holland before he went to the Industrial Tribunal. He therefore chose to go in the High Court in the first instance. It is a little difficult to see quite why the subsequent proceedings took place before the Tribunal, but that is a matter for him and he is entitled to do that. In Bowater the Industrial Members also set out a number of factors at page 802 E to H and many of those factors are present in the circumstances of the case before us today.

The earlier case was First Castle Electronics to which we have already referred; there again we set out a number of factors which were relevant in exercising the discretion and also pointed out, as was indeed the fact that there was a tendency these days to adjourn hearings pending the hearing in the High Court where complications existed. It is perhaps important to cite First Castle Electronics because of those matters which might prejudice the Applicant, Mr Holland in this case, if there was a delay for the hearing of the High Court proceedings. First of all if there is delay in receipt of compensation. That is always so but there would in any event be a claim for interest under today's existing law. There is no claim here for restitution and there is no question here of professional confidence as far as we know, so that the prejudice to Mr Holland would be simply if there was any delay.

As far as we can understand from Mr Bater, who knows the position in Cardiff well, it seems likely that this case in the High Court would be listed for hearing in June or July of this year. We do not know what the position is in the Industrial Tribunal but there is no date taken until this decision on this appeal has been made. It may be that the hearing could take place before June or July, but the difference in the dates is really quite narrow and in any event we would need an undertaking from Mr Bater that he would issue the Summons for Directions and pursue the matter urgently so far as a date is concerned.

It follows therefore we must look to see whether there is any error of law on the face of the letter of the 30th December. In our judgment the learned Chairman has not applied the principle of law there stated to the facts of this case. He has not explained the reasoning in such a way as would enable the Company, and indeed this Court, to understand quite why the decision has been made in the way in which it is. The fact that the issues may be slightly different does not deal with the questions and the principles raised in the two cases to which we have referred, and in particular, whether there will be findings of fact which will be relevant to the application of the principles of law on the issues as they were. In this case, it seems to us on reading the pleadings, not only that many of the factors raised in Bowater are there, but also that there may very well be findings of fact which if made by an industrial tribunal could embarrass a High Court judge if he did not agree with that finding of fact on the whole of the evidence. Discovery also seems to us to be rather wider in the High Court than it would be in the industrial tribunal. There are serious allegations which merit a finding in the High Court or in the industrial tribunal but that seems to us to be an even balance. It is the primary findings of fact, the overall view of the facts, the damages which are complicated, and the other subsidiary issues which seem to us to answer the question which we have raised in Bowater. There is, in our judgment, an error in not applying the facts to the law, there is, therefore, a flaw in the decision. In applying our own discretion to the facts, we have no doubt in answering the question which we had posed in Bowater, that the most convenient and appropriate way to try these issues in all the circumstances, including the complexity of the issue, the amount involved, the technicality of the evidence, and the appropriateness of procedures, is the High Court.

It follows therefore that we will allow this appeal and the proceedings before the Industrial Tribunal will be stayed pending the hearing before the High Court, but, Mr Bater, undertaking to issue the Summons for Directions within 7 days and undertaking too, to press forward and obtain a date with all reasonable despatch.