United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 562_93_2103

Appeal No. EAT/562/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21 March 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR A FERRY MBE

MR K M HACK JP

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MR R CLARK          APPELLANT

DEPARTMENT OF TRADE AND INDUSTRY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): On the 26 November 1991 Mr Richard Clark, a Higher Scientific Officer (Design Engineer), presented an application to the Industrial Tribunal. He complained of unfair dismissal by his employers the Department of Trade and Industry.

His employment had began in August 1970 and ended on the 2 September 1991. His case was that the unfair dismissal was the culmination of a period two to three years of unfair treatment by his employers. He wished to provide a mass of documentation, because, in order to reach the truth, it is necessary to examine the detail. He attached details of the complaints which he had to the form of application.

The Department of Trade and Industry contested the case. They put in a Notice of Appearance on the 13 December 1991. Their case was that Mr Clark worked for twenty-one years at the Warren Spring Laboratory. During that time performance, which in earlier years had been satisfactory, deteriorated to a point where it was below normal requirements for his grade. He was warned and given advice on how to improve his performance, but he did not heed the advice and was placed on trial during which he was closely monitored. The complaint was that he devoted a considerable proportion of his time to writing criticisms of line management, so that his work output fell to a low level. Further warnings and additional advice were ignored. He was dismissed. The Department complained of his negative attitude and low output. Unfair dismissal was denied.

The matter came on for hearing before an Industrial Tribunal. The composition of the Tribunal was the Chairman, Mr J G Drysdale. The two members were a Mr A J Taylor and Mr D M Walsh. At the hearing Mr Clark appeared in person. The Department was represented by Mr Gill of Counsel. The hearing started on the 25 January and continued over the 26 and into the 27. The decision of the Tribunal, notified to the parties on the 7 May 1993, stated that the case was dismissed on the withdrawal by the applicant. The reasons state that, immediately after the lunch time adjournment on the 27 January 1993, the applicant stated, after discussion with the Respondent's representative, that he wished to withdraw his application. The Chairman asked whether the Applicant would prefer an adjournment to consider the matter further, and perhaps seek advice, but the applicant confirmed his wish to withdraw.

On the 2 February 1993 Mr Clark wrote to the Office of Industrial Tribunals in which he complained of the circumstances in which the application had been withdrawn. The matter was referred by the Regional Office to the Chairman of the Tribunal. The Chairman gave the following direction notified to Mr Clark by letter of the 8 February.

"Please tell the applicant that his letter will be treated as an application to withdraw his application to withdraw, and a short hearing will be appointed which he and a representative of the respondents will be asked to attend at which directions for further consideration of the case will be given".

The application for withdrawal was heard by the Industrial Tribunal, composed as before, at Bedford on the 2 April 1993. For the reasons notified to the parties on the 7 May 1993 the Tribunal unanimously decided that the previous decision to dismiss the case, on the withdrawal of the application by Mr Clark, should be promulgated and affirmed. Mr Clark was not granted leave to withdraw his application to withdraw. In the full reasons the Tribunal summarised the issues before them at the substantive hearing. The Tribunal stated that it became increasingly clear during the course of the hearing, on the substantive points, that Mr Clark was not really interested in dealing with the reason for his dismissal. What he tried to get the Tribunal to consider were a number of grievances against the Department.

The Tribunal set out various matters, which Mr Clark wished to raise and which the Tribunal tried to clarify, particularly as to their relevance to the matters they had to decide. The Tribunal's view was that the grievances Mr Clark wished to air had nothing whatever to do with the reason for his dismissal, its fairness or its reasonableness. The Tribunal told Mr Clark that these matters could not be considered. The matter was adjourned over the lunch time adjournment, to proceed in the afternoon on the basis of relevant matters only.

When the Tribunal reconvened after lunch, Mr Clark stated that he wished to withdraw his application. The Chairman asked whether he would prefer to consider the matter further and perhaps seeks legal advice before coming to a decision. However, Mr Clark was adamant that he wished to withdraw his application there and then.

After the decision was typed and signed, but before it was promulgated, Mr Clark wrote to the Tribunal making various complaints about the way in which the proceedings were conducted and asking for a review of his case. This letter was treated as an application for leave for him to withdraw his application to withdraw. He was so informed by a letter of the 8 February. The Tribunal was then reconvened.

The Tribunal summarised the basis on which Mr Clark sought leave to withdraw his application. He said he had been placed under unfair pressure by the Tribunal in consideration of costs and that the Tribunal had prevented him from introducing his various grievances. Mr Gill, for the Department, having looked at his notes and his Solicitors' notes, said he had told Mr Clark at the end of the first day of the hearing that he might have to ask for an order for costs, because of the way in which the proceedings were being conducted. On the second day, the Tribunal referred Mr Clark to the Tribunal's powers relating to costs, particularly in relation to a party's introduction of irrelevant matter. On the third day, at the lunch-time adjournment, Mr Gill spoke to Mr Clark saying that he was indeed intending to apply for costs, but added that, if Mr Clark felt that he had a good case, he should not feel pressurised and should carry on with his case. He suggested that he should take legal advice. Mr Gill said at that stage Mr Clark thanked him and said he would like to think about it. Just before coming back, Mr Clark told him that he had decided to withdraw. Mr Gill then said in that case he would not ask for any costs, but added again that, if Mr Clark thought he had a case, he should go on. He again suggested to Mr Clark that he should take legal advice. However, in the event, Mr Clark decided to withdraw. The Tribunal commented that Mr Gill's account of the events which took place at the hearing, accorded with the recollection of all the members of the Tribunal.

The Chairman referred to the Tribunal's powers to award costs under the Rules. The Tribunal referred to the I.D.S. Handbook in where it stated that the Tribunal may themselves issue a costs warning during a hearing, and said:

"We cannot accept that the matter of costs provides any basis for our permitting Mr Clark to withdraw his application to withdraw from this case.

In conclusion the Tribunal said, as to Mr Clark's wish to rely on his various grievances, that it was for the Tribunal to decide what is relevant. It is the Tribunal's duty to exclude all matters which are not relevant. Having heard the case for 2½ days, half a day being exclusively devoted to hearing Mr Clark state his case, the Tribunal was more than ever convinced that the matters he was seeking to raise concerning his grievances were wholly irrelevant and ought not to be relied on.

In the event, the Tribunal saw no reason for allowing Mr Clark to withdraw his application to withdraw or to vary the decision already made.

Mr Clark was dissatisfied with the decision of the Tribunal. He appealed by notice of the 17 June 1993. He attached detailed complaints about the way in which the hearing had been conducted, up to his withdrawal of the case.

The substance of the complaints is that pressure was applied by the Chairman to Mr Clark. He complains that Mr Drysdale showed antipathy and bias towards him, that he conducted the hearing in grossly irregular manner, that he interrupted, obstructed and prevented his cross-examination of witnesses and refused to take account of evidence. He criticised the Chairman's rulings on various points as arbitrary, and the most serious of all, criticised the Chairman for issuing threats, particularly on the third day of the hearing, of a costs order for a frivolous application.

It is unnecessary to state all the details of the complaints. In an important passage in his appeal documents Mr Clark refers to what he describes as a threat of the Chairman, of costs of the case on the first afternoon of the hearing. He states that on the third day, after the lunch adjournment, he withdrew. He said the Chairman looked pleased, said that he did not wish him to be pressurised into this and asked "did I need more time to make my decision or take advice". Mr Clark adds:

"In view of the fact that we had only half a day remaining, the obvious fact that the Chairman was bent on finishing on that afternoon and the threat of costs coupled with his hostile attitude throughout the hearing, I said not. The threat of a 4-figure costs are daunting to a man who remains unemployed and seeking work 16 months after dismissal".

Mr Clark repeats his complaint that he was pressurised into withdrawal, primarily by the Tribunal Chairman, and by sustained pressure over 2½ days, culminating in the threat of costs.

We have to consider this matter in the light of the limited powers of this Tribunal. Under Section 136 of the Employment Protection (Consolidation) Act 1978 an appeal only lies to this Tribunal on a question of law arising from any decision of or arising in any proceedings before an Industrial Tribunal.

We are unable to see in Mr Clark's complaints any error of law. The position was that he withdrew his case. He complained shortly afterwards of the circumstances in which he withdrew the case. His complaint was of bias and pressure. That matter was looked into by the whole Tribunal. It was rejected. Mr Clark said in his submissions that in retrospect it was foolish of him to withdraw in that situation. He thought that, at that time and shortly afterwards, there was no possibility of correcting what had gone wrong with the proceedings. He then reflected further on the matter and sought to reopen the case.

In our judgement, there was no error of law on the part of the Tribunal. Mr Clark's complaints are misconceived. First, he complains about the interruptions from the Tribunal as to the conduct of the case by him. As to that we remind Mr Clark that it is well established in all Tribunals and Courts, that it must be for the Tribunal or Court to decide what is relevant. It is not for one or other of the parties to decide what is relevant. There is no improper pressure on a litigant or bias against him if the Tribunal or the Chairman of it seeks to move the case along, and makes rulings as to what lines of examination and cross examination may be pursued. As was said by Mr Justice Browne-Wilkinson in Lockett v Icknield Instruments Ltd [12 November 1981].

"It is for the Tribunal to decide whether or not allow parties to deal in detail with issues which the Tribunal does not regard as relevant. If the Tribunal forms the view that irrelevant matters are being pursued the Tribunal is well within its powers to say to a litigant "you are not permitted to pursue these questions" ".

Secondly, as to the threat of costs, there is nothing improper in the Chairman of the Tribunal stating to a litigant that, if he pursues the matter unsuccessfully, there may be an application for costs against him. There is nothing improper in saying that application may be sympathetically received if, after several days of a hearing, the Tribunal has already formed the view that time has been wasted by a litigant in the pursuit of irrelevant matters.

Thirdly, we are satisfied on Mr Clark's own evidence that no illegitimate pressure was brought to bear on him in making his decision to withdraw from the proceedings. As he said in his own documents in support of this appeal, the Chairman told him that he did not wish to pressurise him. The Chairman asked him if he needed more time to make his decision or take his advice. As Mr Clark said, it may have been a foolish thing to do, but he did it after being given a proper opportunity to consider his position. He withdrew the case. The reason he withdrew the case was that he wished to avoid any risk that he would be ordered to pay the costs of the proceedings. Having removed that risk he had second thoughts and wished to reopen the whole matter to the extent of starting the case all over again. This could only be done if he could get the Tribunal to give him leave to withdraw his application to withdraw.

We are satisfied that, in dealing with that part of the case in the second decision on the 2 April 1993 the Tribunal fairly and thoroughly investigated the circumstances in which withdrawal had taken place. There is no serious dispute by Mr Clark with the statements contained in that decision, in particular the statement in paragraph 3 of the decision that the Chairman asked Mr Clark, when he said he wished to withdraw his application, whether he would prefer to consider the matter further, and perhaps seek legal advice before coming to a decision.

It still seems to be the main contention of Mr Clark that he was unfairly treated in the conduct of the hearing by the Chairman of the Tribunal attempting to prevent him from introducing matters and pursuing matters which the Tribunal regarded as irrelevant.

In our view, there is no evidence of bias on the part of the Tribunal in seeking to make rulings of that kind. Indeed, it is the duty of a Tribunal, in fairness to the other party and with a proper consideration to the fair hearing of a case, to make sure that neither party spends unnecessary amounts of time pursuing matters which the Tribunal regard as irrelevant.

The Tribunal may, of course, make mistakes. If a Tribunal wrongly rules matters as irrelevant, which are relevant, that may form the ground of an appeal to this Tribunal. In this case, however, Mr Clark never pursued the matter to a decision from which he could launch an appeal on such a ground. He decided, having been given a fair opportunity to think about it and take advice, to withdraw his case. Having decided to take that course he must live with it. There has been no error of law on the part of the Tribunal. What has happened may have been an error on the part of Mr Clark. Errors on his part in the conduct his proceedings are not to be laid at the door of the Tribunal, and do not form any ground for an appeal to the Employment Appeal Tribunal. The appeal is dismissed.