United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1086_94_0803

Appeal No. EAT/1086/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 8th March 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR K M HACK JP

MR G H WRIGHT MBE

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MR L G VICKERSTAFF          APPELLANT

EDBRO PLC          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

NO APPEARANCES OR REPRESENTATIVES BY EITHER PARTY


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by Mr Vickerstaff against an interlocutory order made the Chairman of the Industrial Tribunal sitting in Manchester. By a letter dated 20th June 1994 the Chairman informed Mr Vickerstaff that his two applications to the Industrial Tribunal had been combined and would be heard together. Mr Vickerstaff presented an application to the Industrial Tribunal on 15th December 1993 claiming that the respondent, Edbro PLC, had unfairly dismissed him from his job as export documentation manager and computer support provider to a subsidiary companies. He claimed to have been employed by the Respondent company from February 1986 until the 11th November 1993.

Mr Vickerstaff objected to that originating application being combined with another application also taken out under the Wages Act 1986. He appealed against the Chairman's decision by a letter which has been treated as a Notice of Appeal and was served on the Employment Appeal Tribunal on 28th June 1994. In the letter he said this:

"I wish to appeal, against the decision of Manchester Regional Office of Tribunals decision, to combine my two Tribunal applications. 65306/93 is my Unfair dismissal claim, whereas 5261/94 , relates to an illegal deduction, under the Wages Act 1986."

"I agreed, that the cases could be heard, at the same time, but have never agreed, that they could be combined." [and then he then states in more detail the grounds on which he complains about the decision].

The position today is that Mr Vickerstaff informed the Tribunal by a note dated 21st February 1995 that he did not intend to present at the hearing notified for today. He had already submitted a Skeleton Argument in support of his appeal. The Respondents have not appeared or been represented. Their solicitors Elliott & Company sent a letter to the Tribunal on 18th January saying:

" ... we do not intend to attend the hearing. Accordingly, we enclose written submissions which we should be grateful if you could please place before the Employment Appeal Tribunal before the hearing. In the circumstances, we respectfully request that our non-attendance at the hearing should be excused."

It is in those circumstances that we decide this appeal on paper.

Mr Vickerstaff's objection to the order combining the two cases is explained in his Skeleton Argument. He said that he brought the appeal because all attempts to have the Manchester Regional Office clarify whether "combination" means what the word implies or whether it means the cases would merely be heard at the same time with separate adjudications. He said that those attempts had been met with a curt response that they are "combined".

As to his Wages Act claim that is against non-payment of accrued holiday pay.Any gross mis-conduct on his part may have been an issue, However, it is the opinion of ACAS he said, that he would still be entitled to the payment, unless non-payment in the event of gross mis-conduct, was specifically stated in his contract of employment. It was not so stated. He adds that non-payment is not an issue. There is indisputable evidence that the Respondent company went through the proper motions of advising him and paying him, but then deducted the £501.00 total net payment.If non-payment were the issue, then his claim would be in respect of the gross amount £739.39, and furthermore, if he were not entitled to the payment as now claimed, the Respondent company would be guilty of issuing him with an in-correct P45 and making false declarations to the Inland Revenue, as both gross and nett amounts were included in his P45 by then. He said that there is indisputable written evidence from the Respondents that they withheld the total net payment against Court costs, not because they considered that he was not entitled to payment. He states in strong terms that, despite all these matters, of which he has made complaint, the Regional Office accepted the Respondents "ludicrous and asinine contention", that his case was linked, by virtue to alleged gross misconduct, and combined them. He adds for good measure that this is one of several biassed decisions of the Manchester Regional Office Industrial Tribunal all the decisions favour the Respondents and will, more than likely, form part of an official complaint against them, when they have adjudicated his cases.

He goes on to complete his submission as to why the Manchester Industrial Tribunal were wrong to combine his cases. They should have immediately dismissed the claims of the Respondents that the cases were linked. There is no link between them. He submits there should be separate adjudications.

The case of the company is that it is appropriate for the two originating applications to be combined, so as to be heard together, because there is a common question of law and fact in both of them. That common question is "whether Mr Vickerstaff was guilty of gross misconduct such as to justify his summary dismissal". The question of his gross misconduct is relevant, so as far as the application for unfair dismissal is concerned, because that is the reason relied upon by the company for his dismissal. In respect of the Wages Act claim it is relevant because it is the company's case that Mr Vickerstaff is not entitled to the holiday pay he claims, on the grounds that he was dismissed by reason of gross misconduct.

Under the rules of the Industrial Tribunals 1993 Rule 18 provides:

"18.-(1) Where, in relation to two or more originating application pending before the industrial tribunals, it appears to an industrial tribunal, on the application of a party made by notice to the Secretary or of its own motion, that-

(a) a common question of law or fact arises in some or all the originating applications, or

(b) the relief claimed in some or all of those originating applications is in respect of or arises out of the same set of facts, or

(c) for any other reason it is desirable to make an order under this rule,

the tribunal may order that some (as specified in the order) or all of the originating applications in respect of which it so appears to the tribunal shall be considered together, and may give such consequential directions as may be necessary."

[it is also provided that]

"(2) The tribunal shall only make an order under this rule if-

(a) each of the parties concerned has been given an opportunity at a hearing to show cause why such an order should not be made; or

(b) it has sent notice to all the parties concerned giving them an opportunity to show such cause."

The submission on behalf of the company is that it was within the discretion of the Regional Chairman to make the order in relation to the two applications. There is nothing in the Notice of Appeal, to show that the order made was outside their powers or that the discretion he exercised in making the order was outside guiding legal principles or was an order which no reasonable tribunal would have made.

In our view, that the submissions of the company are correct. This is very much a matter for the discretion of the Tribunal under Rule 18. We can only interfere with the exercise of the discretion if the order made is perverse or has been made contrary to established legal principles of practice or has been made by taking into account irrelevant matters and leaving out of account relevant matters.

We are satisfied that this was a correct exercise of the discretion. The only point that we would add in response to the complaint made by Mr Vickerstaff in his Skeleton Argument is that combining the two applications does not mean he will only be given one decision. He said in his Skeleton Argument that he has tried to get clarification to find out whether combining the two means that they will merely be heard at the same time with separate adjudications or will be combined in some other way. We will clarify the position for Mr Vickerstaff, if it is not clear to him. The order that has been made will mean that the same Tribunal will hear the two applications. They will hear the evidence and the argument on both of them, but they will separate decisions. It is necessary for them to give separate decisions, because the cases have been initiated by separate originating applications and they are brought under different statutory provisions, the Unfair Dismissal Case under 1978 Act, the Wages Act case under 1986 Act. He need be in no fear that the combination will deprive him of the right to have separate adjudications which will state the relevant findings of fact and the applications of the law to those facts.

With that clarification we hope that Mr Vickerstaff is now able to proceed with the claims to be dealt with in the manner directed by the Tribunal. For all those reasons his appeal is dismissed.