United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 338_95_0604

Appeal No. EAT/338/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6th April 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MRS T MARSLAND

MR T C THOMAS CBE

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DR M R WATERFIELD          APPELLANT

UNIVERSITY OF BRISTOL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

NO APPEARANCES OR REPRESENTATION BY OR ON BEHALF OF THE

THE APPELLANT AND RESPONDENTS


 


MR JUSTICE MUMMERY (PRESIDENT): This is an interlocutory appeal by Dr Malcolm Waterfield in proceedings brought by him against the University of Bristol. He started the proceedings by presenting an originating application on 28th October 1994. He claimed unfair dismissal, breach of contract and failure to provide written reasons for dismissal.

Dr Waterfield was employed initially as an academic manager at the CTI Centre for Medicine and was subsequently appointed deputy director.

The University responded to his claims in a Notice of Appearance filed on 28th November 1994 after an extension of time granted by the Regional Chairman.

The Notice of Appearance sets out the various grounds on which the claim is resisted. The University's case is that Dr Waterfield's employment came to an end on the expiration of a fixed term contract and that he had agreed to exclude his rights to a claim for unfair dismissal or redundancy payment. Alternatively, he was dismissed by reason of redundancy and/or misconduct or some other substantial reason within the meaning of Section 57 of Employment Protection (Consolidation) Act 1978. Those general points are amplified by the University in a further twenty paragraphs which set out grounds of defence.

The interlocutory appeal today is in the absence of both sides. Dr Waterfield wrote a letter to the Tribunal, which was received on 4th April, in which he airs grievances about the handling of his case by the Industrial Tribunal. The grievances all relate to various interlocutory matters. We will deal with each of his complaints in turn. The details are set out in a letter sent by facsimile and post and dated 4th April. There are also sent a number of earlier letters which provide the background to the grievances.

Dr Waterfield explains in a letter of 4th April that he is unable to attend in person at a hearing this week. He wishes to be assured that his inability will not jeopardise his case. We give him that assurance. Each member of the Tribunal has read the complete file of documents provided to us in the light of the contrary representations made by the University's solicitors, Osborne Clarke in a letter of 6th April.

They state in their letter that they oppose the Appeal and are content that it should be dealt with on the basis of written representations. They therefore do not intend to be represented today. The letter of 6th April sets out in numbered paragraphs the points in answer to Dr Waterfield's complaints.

Before dealing with the individual complaints. I should mention two matters. First, after we started to consider the papers, a further facsimile arrived from Dr Waterfield, in which he makes some additional points. We have taken those into account. Secondly, as all the points raised on the Appeal concern procedure, it is important to bear in mind the powers of the Tribunal contained in the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. The two rules which are particularly relevant are Rule 5 which provides that:

"The President or a Regional Chairman shall fix the date, time and place of hearing of the originating application and the Secretary shall send to each party a notice of hearing together with information and guidance as to attendance at the hearing, witnesses and the bringing of documents, representation by another person and the making of written representations."

It is clear from that rule that the Regional Chairman has a wide discretion over all matters relating to the time and place of the hearing. We mention that because one Dr Waterfields complaints relates to the Decision of the Regional Chairman to hold the hearing at Bristol, not at Exeter or Plymouth as requested by Dr Waterfield.

The other rule of general importance is Rule 13. That provides:

"Subject to the provisions of these rules, a tribunal may regulate its own procedure."

In addition to that general rule, there are specific rules relating to the power to order further particulars, the attendance of witnesses and the granting of discovery (Rule 4). And there are also rules relating to the holding of pre-hearing reviews (Rule 7).

Against that background, we consider the individual complaints made by Dr Waterfield.

The first complaint is about the venue of the hearing. The Tribunal Chairman, through the Regional Secretary, said in a letter of 3rd March:

"I am directed to inform that he has reconsidered the question of where this case should be heard and whilst it would be more economical for the case to be heard here, your place of work is North Devon and you live in Plymouth. Normally therefore the case would be heard in Plymouth/Exeter. However, before he finally decides on this matter he feels the respondents should be given a chance to make further representations."

As a result of the further representations made by Osborne Clarke on behalf of the University in the letter of 13th March, a decision was made by the Regional Chairman that Bristol was the most convenient and economical venue. The University's representations had been that they would be calling four witnesses and a further representative from the University would need to be in attendance throughout the hearing. All of the witnesses are based in Bristol or its environs. In addition the legal representative would have to travel that much further if the case was to be heard in Exeter. During the period of his employment with the University, Dr Waterfield, although he was based in Bristol, continued to reside at Plymouth and travelled to Bristol on a regular basis. It was pointed out that he had demonstrated his ability in the past to travel on a regular basis from Plymouth to Bristol in the course of his employment and it would be quite inappropriate if he were now to argue that he is unable to do so.

They submitted as further reasons that considerable time and costs would be saved if the matter was heard in Bristol.

Dr Waterfield complains about the decision notified to him and to the University's solicitors on 23rd March that the Regional Chairman had reconsidered the position as to venue, and, in the light of the representations, had decided that the most convenient and economical venue would be Bristol. The letter stated:

"The matter will therefore be heard there."

The letter contained a further direction to both parties that they were required to take notice that on 10th April 1995 an Interlocutory Hearing would be held at Bristol to deal with Dr Waterfield's application for discovery and further and better particulars.

Dr Waterfield's first point is that the Chairman had not taken in properly taken into consideration his reason for having the venue changed to Exeter or Plymouth. He said that, during the period that the University actions had given rise to the proceedings, he had been required to work from home, in Plymouth. That was his normal place of work. The Chairman had not taken into consideration the change in his circumstances brought about by the actions of the University. The case would, as the Tribunal initially accepted, normally be held in Plymouth or Exeter. The decision of the Chairman to ignore the normal practice was perverse. His justification on the basis of convenience and economy made no reference to justice or to the far greater resources of the University. He would also be calling witnesses who reside in Bristol. He did not accept the decision and wanted the matter reconsidered taking full account of all these facts.

We have done as Dr Waterfield asks. We have looked at his representations and the representations of the University. In our view, there is no error of law in the decision of the Chairman to fix the venue at Bristol. It was a matter for his discretion. His obligation was to take into account all the relevant points made by each side about how he should exercise his discretion. He did that. What weight he gave to the various points and how he should balance them to arrive at a decision were a matter for him. We can only interfere if we are of the view that he reached a decision which no reasonable Chairman, on the material before him, could have reached. This decision does not come into the category of perversity. There is no material before us which shows that the Chairman acted on a wrong principle or took into account irrelevant matters or left out of account relevant matters. In those circumstances there is no ground for challenging the legality of his decision on venue.

The second point concerns the hearing of 10th April. That was fixed by the Chairman in the letter of 23rd March to deal with Dr Waterfield's application for discovery and further particulars. Dr Waterfield says he wants that hearing set aside. He said it should be stopped. The ground on which he makes this submission is that he considers that the university is seeking to obstruct and delay the process and create difficulties for himself. He can see no reason or justification for a hearing, as there can be no reasonable challenge concerning the documents he has requested. We are unable to accede to this or to his request that we make an order forthwith for the documents and particulars. That is an invitation to usurp the jurisdiction of the Industrial Tribunal. The Industrial Tribunal, as is clear from the rules, has the power to decide whether to order discovery and particulars. If they make a decision which is erroneous in law, it can be appealed. But it is not for us to make the decision in the first place. If the case is as clear for the production of these documents, as Dr Waterfield suggests, he can make those points strongly to the Tribunal on 10th April. His arguments do not provide a ground for vacating the hearing. They do not provide any ground for us making an immediate order, ahead of any hearing by the Industrial Tribunal. There is no error of law on the part of the Chairman in fixing 10th April as a date for dealing with matters of discovery and particulars.

Thirdly, Dr Waterfield makes a number of complaints about the Notice of Appearance put in by the University. He requests a pre-hearing review in relation the university's ability to defend its actions. He claims that there is a conflict between the written reasons for his dismissal and the reasons specified in the Notice of Appearance. He makes a number of points about the obligation of the University to use internal disciplinary procedures.

Whether there should be a pre-hearing review is a matter of discretion for the Chairman. If Dr Waterfield wishes to have a pre-hearing review, the Industrial Tribunal Chairman is the proper person to consider the request, not us. Again, it is a matter of discretion for him. We would only have a power to interfere if he made a decision which Dr Waterfield was then able to persuade us was an irrational or perverse one. We have no power to deal with this request. We therefore make no order on it.

Fourthly, Dr Waterfield requests an interlocutory hearing to consider what evidence would be admissible on the hearing of the case. For similar reasons this application or request is misconceived. If he wishes the Industrial Tribunal to consider matters of evidence ahead of the hearing, he should make a request to the Industrial Tribunal, not to this Appeal Tribunal. We say, on the material that has been put before us, that any preliminary hearing about evidence in unlikely to be fruitful. Questions of what evidence is admissible, or inadmissible are normally dealt with, not ahead of the hearing, but in the course of the hearing when the witnesses or the documents are produced in evidence. Objection can be taken and the Tribunal hearing the case makes a ruling on any disputed question of admissibility. We do not accede to that request.

Fifthly, he requests that we give judgment, separate from the claim of unfair dismissal, on the failure of the University to provide written reasons for dismissal within the legal time limits and on the University's failure to provide sufficient detail. That again is a matter for the Tribunal to decide at a hearing before it. There is no basis on which it is permissible for Dr Waterfield to by-pass the Industrial Tribunal and ask us to make immediate decisions. The Appeal Tribunal's jurisdiction is confined to appeals against decisions, made by the Industrial Tribunal. It can only interfere with those decisions if they are flawed by an error of law. We do not have an original jurisdiction to make the order which Dr Waterfield requests. We decline to make that order.

Finally, there is a request by Osborne Clarke in the penultimate paragraph of their letter of 6th April, that, if the Appeal is unsuccessful, as it is, they would like an order for the costs of the Appeal to be paid by Dr Waterfield. They ask for them to be assessed in the sum of £100.00 plus V.A.T.. Although Dr Waterfield's appeal is unsuccessful, and is, in our view, misconceived, we do not feel that it is appropriate to make an order for costs under Rule 34 of the Employment Appeal Tribunal Rules 1993. We would say, however, by way of a warning to Dr Waterfield, that there is a power under Rule 34 for this Tribunal to order the payment of costs in proceedings which are unnecessary, improper or vexatious or where there has been unreasonable conduct in bringing or conducting proceedings. Our warning to Dr Waterfield is that, by reason of the rules quoted, all matters of procedure are for the discretion of the Industrial Tribunal. They should not be brought on an appeal to this tribunal, unless there is a reasonably arguable error of law in the way the discretion has been exercised. A discretion is only exercised erroneously in law if it is perverse or irrational, or if the discretion is exercised without taking account of relevant factors and leaving out of account irrelevant factors. What is relevant or irrelevant is, in the first place, for the decision of the Tribunal or its Chairman, not for the decision of Dr Waterfield or the University. This Tribunal will not interfere with decisions taken in the exercise of a discretion, unless it is clearly demonstrated that there is an error in the sense described.

For all those reasons, the Appeal is dismissed. There is no order as to costs.