United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 257_93_2405

Appeal No. EAT/257/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 24 May 1994

Before

HIS HONOUR JUDGE J HULL QC

MR A D SCOTT

MR P M SMITH

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MR P MORONEY          APPELLANT

(1) EASTWOOD SCHOOL

(2) ESSEX COUNTY COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant THE APPELLANT IN

PERSON

For the Respondents NO ATTENDANCE BY OR

REPRESENTATION ON

BEHALF OF THE

RESPONDENTS


 


JUDGE HULL QC: This is an appeal to us by Mr Moroney against an order made by Mr Bano, Chairman of Tribunals, sitting in the Industrial Tribunal on the 23 October 1992. That was an order relating to the complaint which was made by Mr Moroney to the Industrial Tribunal in what is called form IT1 and that complaint was made on the 26 November 1991. It may be useful for me to refer to that complaint. Mr Moroney set out the usual particulars and in the box "say what type of complaint(s) you want the tribunal to decide" he said "please see box 10". In box 10 he put:

"Unsubstantiated allegations and prolonged harassment and victimisation over 5 years, which resulted in my nervous breakdown and I was dismissed on grounds of ill health.

My claim is for the tribunal to determine the total unfair handling of my case over the 5 year period and loss of earnings and employment.

Attached detailed particulars together with letter from the Education Department dated 4.11.1988. All particulars stated in document can be substantiated."

Attached to that originating application in form IT1 were 17 pages, which have since been exhibited to an affidavit by Mr Moroney, setting out an unhappy history from the 23 July 1985. Mr Moroney was a schoolmaster teaching secondary education pupils at Eastwood School, which is in Leigh on Sea, and he a very experienced schoolmaster. He set out in the form, as I say, a number of incidents from the 23 July 1985 onwards, in which he says, and we are simply hearing an appeal long before any of these matters have been decided, that unjustified complaints were made against him, that he was subjected to various unfair procedures, that he was, indeed, asked to do tasks which amounted to punishment.

As a result of these unhappy incidents he became unwell. In 1987 he experienced mumps and then after that, early in 1988, he started to experience chest pain and was told that he had high blood pressure. In February 1988 his chest pains got worse and he was off work for four months on medical advice, until June 1988. Thereafter, although he returned to work, there were further very serious causes of complaint, which put him under excessive stress, great pressure. It caused him distress, worry and frustration, anxiety and complaints of that sort. He said his colleagues, some of them, were determined to hound him. They singled him out and victimised him and indeed all this led to a further breakdown in his health.

Putting it shortly, there came a time when in June 1989 he left work for the last time. His health had broken down. He said it was a nervous complaint, nervous illness, and he was away from work for a very long period. Eventually, on the 16 November 1990 the County Medical Officer advised that he was permanently incapacitated from his work as a school teacher and in April 1991, he was given a notice to expire on the 31 August 1991, ending his employment and the Respondents, who are the School and the Education Authority, saying that that dismissal was on the grounds of his illness. He had been away from school, by the time the notice expired, for more than two years and the medical officer said that he was permanently incapacitated from his work. So that is a very unhappy story.

We, of course, are not able to say anything about the merits and substance of his complaints. Still less can we, not medical people in any way, say anything about the medical causation of his illness. No doubt as in many cases there is a good deal to be said in one way and another about all those matters. As we said, when Mr Moroney addressed us this morning, an employer undoubtedly owes a duty of care to an employee to take reasonable care for the employee's health and welfare while at work. If these complaints, which as I say were spread out over 17 pages, were established then it might very well be that Mr Moroney would have a claim for damages for the breach of the employers' duty of care to him.

We say nothing about that except that that is a hypothetical possibility. It may be either a very good claim or a very bad claim, or something in between, we are not of course entitled to form any view about that. As I say, Mr Moroney presented his very long application to the Industrial Tribunal on the 26 November 1991.

Mr Bano, Mr Bano sat alone, it being a interlocutory matter, on the 13 March 1992. He ordered that the Applicant should give particulars of the unfairness of his dismissal. On the 22 April 1992 Mr Moroney did produce a document, which is called PDM2, it is exhibited to his affidavit, in response, apparently, to a suggestion from the Chairman. He set out the substance of his complaints on the left and having set out the story on the left of the page, he set out the nature of his complaints, a breach of duty, on the right.

Among other things, he complained, and I am merely quoting from the first page of this, that unsubstantiated allegations had been made against him by his employers, against natural justice; that what had been done was against the Contracts of Employment Act 1972 and the Teachers' Condition of Service. I am merely giving examples of the sort of thing that Mr Moroney complains of. He says that disciplinary hearings and enquiries were conducted by people who were not disinterested, who were biased and he complains that they were not conducted in accordance with the rules of natural justice, that he was not properly heard, that surprise contentions were sprung on him and that he was unable to deal properly with what was being said against him. The allegations themselves were unfair; the methods of dealing with them were unfair and the result of these various enquiries was unfair, unreasonable, contrary to natural justice and contrary of course, as he says repeatedly, to various manuals which govern the hearing, which should take place if there are any such complaints made against him.

The learned Chairman then sat again on the 22 May and there is a letter setting out directions on the 3 June, which is at page 2A of our bundle, and sets out the order that there should be short particulars. The Chairman pointed out that what he was concerned with was an allegation of unfair dismissal, that was made plain by Mr Moroney. Indeed it is very difficult to see what other matters the Industrial Tribunal could deal with. The Industrial Tribunal is simply created by statute and its jurisdiction is confined to those matters which Parliament, by statute, has given to it and the one which appears to apply here is unfair dismissal.

Eventually, after sitting again, Mr Bano made an order which is at page 2 of our papers, and that is the one against which an appeal is brought here by Mr Moroney. What Mr Bano ordered was this:

"In the exercise of the powers conferred by Rule 12 (2) of the Industrial Tribunals (Rules of Procedure) 1985, it is ordered that:

(i) the document annexed to the Originating Application be struck out;

that was PDM1 as I have called it.

(ii) the Originating Application be amended by substituting for that part hereby struck out, the contents of pages 14-16 of the document sent to the Tribunal on 22 April.

that was PDM2.

Then the Chairman defined exactly what part of the document was to remain as part of the Originating Application.

The Chairman said in his second reason, after setting out the history shortly:

"It appears to the Chairman that the Applicant [Mr Moroney] continues to contend that the Tribunal should consider the fairness of his treatment in the period preceding his dismissal. The Chairman remains of the view that that issue is not relevant to this case, save to the extent that a reasonable employer ought to have had regard to those matters before deciding whether or not to dismiss. The Chairman notes that the Applicant has not responded to the invitation to develop that aspect of the case.

For the reasons set out in the letter of 7 August [that is the letter of page 3 of our papers] and this letter, the Tribunal therefore makes an Order in the terms set out above."

It is against that Order that Mr Moroney appeals. He says in the grounds of his Notice of Appeal:

"When considering dismissal on grounds of ill-health, it is against fairness and aspects of natural justice to debar or fetter a party from representing particulars including medical evidence when the applicant considers the respondents responsible for the matter under consideration."

I asked Mr Moroney, when he was courteous enough to address us, whether he had read the relevant parts of the Act, and in particular Section 57, which gives the Industrial Tribunal, and indeed this Tribunal, their jurisdiction. Under Section 54 of the Employment Protection (Consolidation) Act:

"In every employment to which this section applies every employee shall have the right not to be unfairly dismissed by his employer."

and then it is provided that in general that applies to every employer. Section 57 provides:

"In determining for the purposes of this part whether the dismissal of an employee was fair or unfair, it shall be for the employer to show-

(a) what was the reason (or, if there was more than one, the principal reason) for the dismissal, and

(b) that it was a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held."

So it is for the employer to show what the reason is and that it was a substantial and proper reason, and in this case the employer says that the employee was ill. Then the section goes on:

"Where the employer has fulfilled the requirements of subsection (1)" [which I have just read, "then [subject to matters which we are not concerned with], the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether [in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case.]"

So that was the question which on the face of it this Industrial Tribunal has to decide. They have jurisdiction given to them by Section 67 of the Act, which says:

"A complaint may be presented to an industrial tribunal against an employer by any person (in this Part referred to as the complainant) that he was unfairly dismissed by the employer."

Those are Mr Moroney's rights and of course the rights of many many other people under the statute, and there are many other sections which deal with the conduct of the hearing and there are rules of procedure too. What the Tribunal has to do is first of all to say whether they are satisfied of the reason for the dismissal (in this case the only reason put forward is Mr Moroney's illness).

Then the Tribunal has to address itself to the question whether in all the circumstances the employer has acted reasonably or unreasonably. That relates of course to the dismissal and Mr Moroney claims that his illness was caused by his employers' conduct. This is a matter which, as we have pointed out to him, may found an action for damages against the employers, if he can prove it.

With such an action the Industrial Tribunals have nothing to do. The Tribunal has no jurisdiction to try such a complaint or try such an action. That is reserved to the County Courts and High Court according to the size and difficulty of the claim. The High Court is accustomed to awarding damages and so are the County Courts, where it can be shown that an employers' negligence has allowed his employee's health to suffer and, a fortiori, if the employer deliberately injures or persecutes his employee so as to damage his health, that would give rise to an undoubted claim for damages.

Mr Moroney referred to Donoghue v Stevenson and other cases and as we said he did not need us to persuade us of those matters, but the point to notice is that the Industrial Tribunal is not concerned with them. What it has to do is to take the situation which it finds and to ask: did the employers act fairly or unfairly, reasonably or unreasonably in treating his illness as a ground for dismissing him? Assuming of course that the employers can show that that is why they dismissed him.

The complaint to the Tribunal is therefore limited to that, and this Tribunal Chairman, after making several attempts to direct Mr Moroney's attention to the matters which to the Chairman appeared to be material, made the order which he has done.

We must now look and see the effect of that Order. If we start at page 46 of our bundle we come to that part of the complaint which remains, this is part of PDM2 as it has been called, the revised complaint which was put in. I am not going to read the whole of it, but it starts by setting out as a matter of history:

"On the 15 of January 1991, the Governing Body of Eastwood High School terminated my appointment by reason of ill-health."

and then on the right there is an account of the complaints:

"I forwarded prior to the meeting a 17 page document clearly outlining that correct procedural policy had repeatedly been ignored ......"

and it goes on among things:

"The allegations of 1985 had been removed under threat of a Prerogative Writ in September 1989. For almost 4 years I had serious allegations outstanding against me."

It speaks of natural justice and breaches of natural justice. It speaks of impartiality on the part of the governing body. It makes a number of complaints of that sort; procedural impropriety, and so on. Then it complains, and I have now come to page 47 of our bundle, that is the last page but two of this PDM2. It speaks of allegations in the local press, consulting his MP, all this before the dismissal, a substantial time before the dismissal. It speaks of correspondence and then it says that:

"It was unreasonable given that the Authority had accepted the questions for County Councillors not to ensure that accurate/unconflicting answers were given."

and a good deal more about breaches of the Rules. On page 48 Mr Moroney goes on to make further complaints concerning what had happened before his dismissal, the actions of the local authority, the actions of his colleagues. He refers to an occasion:

".... on several occasions I was double time-tabled. Was not supported by the school ..."

and he refers to a serious incident on duty.

So all that remains in, as a result of the Order made by the learned Chairman. The appeal made to us is against the Order by the learned Chairman that the Application to the Tribunal should be defined in that way. This Chairman has taken a very lively, and it appears to us very commendable, interest in the case, and has gone the extra mile to try to make Mr Moroney understand the grounds on which he has acted. He has written a letter to us in view of allegations being made against him by Mr Moroney.

He has written a letter to us in January 1994, for which of course we are grateful, at page 54 of our papers, in which he sets out the history of the matter as seen by him. He says, we have no doubt entirely correctly, that he was very anxious about the difficulties faced by Mr Moroney and did what he could to assist him in formulating his case. He considered, however, that it would be vexatious to allow the applicant to pursue grievances against the respondents extending over a long period which have no relevance to the fairness or otherwise of his ultimate dismissal on the grounds of his ill-health. Having given Mr Moroney a number of opportunities to establish the relevance of those matters, Mr Bano therefore felt it necessary to make the order now under appeal, and he hopes that those observations will help us in making up our minds.

We have to direct ourselves first and foremost that Mr Bano's and the Members of the Tribunal who sit to try this complaint will be concerned with the questions which we have mentioned under Section 57 of the Act; whether this dismissal was fair or unfair in all the circumstances of the case, including various matters which are set out in the Section.

Any Chairman exercising the interlocutory jurisdiction, as it is called, the jurisdiction to give directions pending trial, is bound to consider first and foremost the importance of a fair and proper trial in the best form, which can be relied upon, as far as possible, to arrive at the truth of the case and a just result. That is the underlying reason for all the rules of Tribunals and Courts. If documents are handed to the Court which are long, irrelevant and on the face of it not directed to the issues, those by themselves are a threat to justice. This may not be apparent to litigants who are appearing, perhaps for the first time in Courts or Tribunals. But to any Chairman, or Judge who has spent long years in Court, it is a commonplace that long documents of this sort represent a threat to justice.

It is essential that all Courts and Tribunals should as quickly as possible be able to concentrate their minds on the real issues so that they can do justice, not only to the applicant, or plaintiff, but also to the respondents, or defendants; and so that the witnesses can have their evidence directed to the true issues in the case. One of the most important duties of any Court is to give interlocutory directions, which may appear to be strict or even harsh to those appearing in front of them, to make sure so far as they possibly can that the case is properly tried.

Now there is another subsidiary Rule which goes with that and that is that these are matters for the discretion of the Court of Trial. It is not up, to take a different example, to the Court of Appeal to tell a High Court Judge, or County Court Judge, or District Judge, how to conduct the proceedings in front of them, or what directions to give. Courts of appeal, which include this Employment Appeal Tribunal for these purposes, are only concerned with interlocutory orders if they think that they cannot be justified on any basis.

These Orders are matters within the discretion of the Judge, or Chairman, who makes the interlocutory order concerned. It is his responsibility, not ours, to ensure that a fair trial takes place before him. Of course, no trial has yet taken place in this case. Mr Bano, we are quite sure, is anxious to make sure that a trial does take place as soon as possible, as fairly as possible, of this long outstanding matter.

He has expressly said that in judging fairness and unfairness, it will be open to the Tribunal to take into consideration what is said about the illness which Mr Moroney has suffered and the reasons for it. What is not permissible, clearly, is to go into a lot of detail designed to show that the employers had been guilty of a very serious breach of their duty of care, and thereby made Mr Moroney ill. If Mr Moroney said, as apparently he will:

"It was the behaviour of the Respondents and the way in which they conducted disciplinary proceedings and the conditions of my work which were very stressful."

then that is a matter which the Tribunal in a general way will bear in mind. As it is alleged that this illness is not merely serious but indeed was caused, or contributed to, by the actions of those at work and the actions of the employers, the Tribunal can in a general way consider that: but what it is left with, at the end of the day, and what it must concentrate its attention on is: did the employer act reasonably or unreasonably, was the dismissal fair or unfair? Industrial Tribunals are intended to be Tribunals of summary jurisdiction, to act informally, to hear evidence informally and to get as soon as they can to the truth of the matter. They are most certainly not fitted by their procedure to conduct proceedings in which scores of documents, or hundreds of documents, are placed in front of them, on issues which at best are marginal to their main task.

Fairness in front of a Tribunal means as far as possible, keeping matters short and simple and to the point. This Tribunal Chairman appears to us to have been directing his attention solely to that. It is his discretion as to how to proceed, and what orders to give, not ours. As I say, we can interfere with the exercise of his discretion in an interlocutory matter like this only if we are satisfied that he has proceeded on a wrong principle of law, or that he has exercised his discretion perversely, as it is said, quite irrationally.

Now so far from that we have all come to the conclusion that whether or not we would have made the same order or orders as this learned Chairman did, we are not in any way satisfied that he has acted on a wrong principle or departed from the path of reason in making his order. We are satisfied that this order was made because of a genuine wish to try Mr Moroney's case justly, fairly and as soon as possible. Potentially, it is a case with a good many ramifications. It may be possible, if the matter is conducted skilfully and with proper forbearance by Mr Moroney and those appearing for the Respondents, that it can be put fairly shortly, kept within a reasonable compass, and that the Tribunal can form a very clear view, without too much delay and difficulty and expense, as to where justice lies. They will hear all the evidence.

As we have said, the burden is on the employers to show what the reason was for the dismissal and that it came within a substantial ground entitling the employers to dismiss Mr Moroney, and there must then follow an enquiry as to whether the employer acted reasonably or unreasonably. It does not appear to us that Mr Moroney is shut out from making any proper contentions with regard to his dismissal, anything material to Section 57, by the order made by the learned Chairman. It appears to us to be an entirely rational and proper order. It appears to us to have been made by the Chairman directing his attention with complete accuracy to his Tribunal's duties in trying the case. We have the greatest sympathy for Mr Moroney in his misfortune and the fact that he is unwell. His interests undoubtedly require that his application, which of course was made as long ago as November 1991, should be brought to trial by this Tribunal as soon as possible and tried out, and nothing could be more conducive to an early and fair trial than the order made by this learned Chairman.

In the circumstances we are obliged to dismiss the appeal by Mr Moroney and to express the hope, if we may, that the complaint which he makes to the Industrial Tribunal, will be heard as soon as it possibly can be, if it is not possible to reach a settlement.

We have come to the conclusion that this is not a case in which we ought to award costs, so there will be no order for costs.