United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 797_94_2702

Appeal No. EAT/797/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 27 February 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR K M HACK JP

MR P M SMITH

---

MRS S C WARD          APPELLANT

INLAND REVENUE          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


---

APPEARANCES

For the Appellant NO APPEARANCE OR

REPRESENTATION ON

BEHALF OF THE

APPELLANT

MR P OLDHAM OF ELBA

INVITED TO ADDRESS

TRIBUNAL


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Mrs Susannah Ward against the decision of the Industrial Tribunal held at London (South) over three days in March and June 1994.

On 14 July 1994, the Tribunal notified the parties of the Extended Reasons for their decision that Mrs Ward had been fairly dismissed by her employers, the Inland Revenue, and that her claim failed. She appealed by a Notice of Appeal served on this Tribunal on 16 August 1994.

The preliminary hearing was fixed to determine whether her appeal raises an arguable point of law. Mrs Ward has not attended. She was notified of the hearing for this morning by a letter from the Tribunal's Listing Office dated 6 January 1995.

It appears from the Tribunal's file that, after lodging her appeal, she entered into extensive correspondence with the Industrial Tribunal at London South and also with the Employment Appeal Tribunal about the return of various documents which she claims were held by the Industrial Tribunal. We need not go into the details of that correspondence, save to say this. It appears from a note on the file of the telephone conversation between Mrs Ward and the Listing Office at the Tribunal, that she informed them she was awaiting the return of documents from the Industrial Tribunal. I quote from the note "Will only proceed when she receives them".

There has been no recent communication from Mrs Ward. We have heard the appeal in her absence. We have considered the grounds of appeal contained in her Notice of Appeal. We have also had the benefit of the assistance of Mr Oldham who, at our invitation, made various points on the appeal which, in his submission, might properly have been made by Mrs Ward if she had attended the hearing and made her own submissions or had instructed him to make submissions on her behalf.

We make it clear that Mr Oldham was assisting the Tribunal at the Tribunal's express invitation to act as an amicus in the absence of Mrs Ward. Without those submissions we would simply have dismissed the appeal for failure to attend and prosecute it.

The background to the dispute is that Mrs Ward was dismissed from her position at the Inland Revenue as an executive. She claimed that she had been unfairly dismissed. The Inland Revenue said that she was dismissed for conduct reasons, namely inefficiency and insubordination and that, in all the circumstances, they acted reasonably and that her dismissal was fair.

The Industrial Tribunal unanimously agreed that the dismissal was fair. The Notice of Appeal raises three areas of complaints about the Tribunal decision. The first area of complaint was what Mrs Ward called "procedures". Her complaint was that the proper procedures had not been followed by the Inland Revenue in dealing with her alleged inefficiency and insubordination.

It appears from the decision, which reviews the relevant events in detail, that over a long period there were meetings between Mrs Ward and Mr Antrobus. We refer in particular to the details given in paragraphs 23 onwards of the decision. Reference is made to a serious meeting about aspects of Mrs Ward's work performance. The meeting was between Mrs Ward and Mr Antrobus on 17 June 1992. The Tribunal found that she had ignored his express instructions on certain matters.

Another meeting took place later, in September 1992. They referred in particular to a meeting of 8 September, when an important interview took place between Mr Antrobus, Mr Crutchley, the District Inspector, and Mrs Ward. At the end of that meeting she was handed three letters. One of them concerned the Personnel Department's concerns about the fact that she had been disclosing confidential documents to a member of Parliament, among others, and reference was made to her Official Secrets Act obligations.

On 9 September 1992 she was suspended without pay. She was given notice of dismissal on 3 December 1992, following a meeting held on 2 December. The Tribunal referred in the Reasons to a large number of documents relevant to these events. In paragraph 31 the Tribunal said this:

"31. The Respondents viewed the Applicant's attitude as expressed in that meeting as being the last straw and by letter dated 3 December 1992 she was given notice of dismissal. By reason of the procedures applicable to appeals, the Applicant was in fact paid until 2 July 1993 but 2 December 1992 was her last day of work. She did in fact appear for work on 7 December 1992 .... [and then there is mention of another incident]".

The Tribunal's finding in paragraph 32 was that the Inland Revenue had overwhelming evidence that Mrs Ward was not performing many aspects of her job function satisfactorily and that there were a number of examples of a provocative and non co-operative attitude which the Revenue were entitled to view as insubordination.

The Tribunal found that many of the points which Mrs Ward sought to raise in her various memoranda were confused and inconsequential. They listed in paragraph 34 a number of detailed points which she made; that she was given a higher work load than others; or at any rate, an excessive workload; that the Revenue, and in particular Mr Antrobus, were changing the rules; that she was given unreasonable instructions flowing from lack of knowledge and expertise on the part of her superiors; that she was harassed by Mr Antrobus; that she was refused leave unreasonably and that she was suspended without pay unreasonably.

Having considered all those matters, the Tribunal concluded that it was reasonable to dismiss her. There had been no unfairness in doing so. The only point that might be raised in Mrs Ward's favour, on breach of procedure, was that there was no express finding in the decision that Mrs Ward was given clear notice of what might happen to her if she persisted in the matters of which the Revenue complained. There was no clear finding in the Tribunal that she had been given a final written warning. So it might be said, on her behalf, that there was an element of unfairness in her dismissal as she had not been put on notice that her job was on the line.

In our view, there is no error of law in the Tribunal's decision on this point. The Tribunal fully considered all the various steps taken by the Revenue to bring to Mrs Ward's notice the matters affecting her work of which they were making complaint. She cannot have been left in any doubt, by the time she was given notice of dismissal, as to the grounds on which her conduct was being criticised. In particular, the Tribunal's decision sets out, at length, the various meetings which took place in order to discuss the problems that had arisen in Mrs Ward's work.

The second point taken in Mrs Ward's Notice of Appeal is that there was no power to suspend her without pay. It is not necessary to say much on this point. It was one that she unsuccessfully took before the Tribunal. She argued that the procedures of the Inland Revenue did not entitle them to suspend her without pay. The Tribunal rejected that contention on the basis that the staff handbook (and they refer to particular paragraphs) make it quite clear that there was a power to suspend her without pay, in case of insubordination as appropriate. The Tribunal added that this issue had been litigated in the County Court in relation to a claim Mrs Ward made for unpaid wages. Her claim was dismissed and, in so far as she made a similar claim in the Industrial Tribunal, that was also dismissed as res judicata.

The third point of appeal is dealt with on the third page of Mrs Ward's Notice of Appeal. That relates to alleged procedural unfairness in the conduct of the hearing before the Industrial Tribunal. Mrs Ward set out in her notice of Appeal her side of the story. She complains that a number of documents on which she based her case were taken from her and handed to the Revenue for specious reasons. When they were returned to her, they were in disarray. Some of the documents had been removed. The consequence was that not all the documents were available. Not all of them were allowed in evidence. The Chairman, she complained, decided that the papers did not support her case and she asks, "surely, I brought the case. The decision on relevance is mine". That is a misunderstanding. The legal position is that on matters of relevance it is for the Tribunal to make rulings, not the parties themselves.

It is clear from the Rules of the Industrial Tribunal, in particular Rules 9 and 13, that the Tribunal regulates its own procedure in such a way as it considers appropriate and there can be no criticism of the procedure before a Tribunal so long as it is conducted in a manner which it considers appropriate for the clarification of the issues and the just handling of the proceedings.

Mrs Ward made more detailed complaints about the Chairman's conduct: how she felt intimidated by him. She complained he was irascible and at times unwilling and unable to follow the lines of her arguments and liable to be dismissive at certain points. Her overall complaint was in relation to the failure of the Tribunal to look at all the documents which she wished to put forward in support of her claim.

We do not accept that this is an error of law in the Tribunal's decision. The Extended Reasons deal with the difficulties which the Tribunal had encountered in the presentation of Mrs Ward's claim. They pointed out at the end of the decision that they bore in mind that she was unrepresented. They tried to place themselves in her shoes to make sure they had not overlooked some obvious points. They dealt, in particular, with the difficulties which she had complained about on the documents. They are dealt with in detail in paragraphs 2, 3 and 4 of the decision.

We are satisfied that, from the account given in those paragraphs, Mrs Ward elected to proceed with the hearing on the basis of the documents only available from the Inland Revenue. We are satisfied with those explanations as to the course of the hearing. In our view, there was no evidence of error of law or failure to observe the rules of natural justice at the hearing over the three days referred to.

In those circumstances, we have reached the conclusion that there is no arguable error of law in the Tribunal's decision on any of the three grounds canvassed in Mrs Ward's Notice of Appeal. We are grateful to Mr Oldham for the assistance that he has given in highlighting points that Mrs Ward might have been able to make if she had been here. We have decided that this matter should not proceed to a full hearing. There is no prospect of Mrs Ward being able to establish an arguable legal point. We therefore dismiss the appeal.