United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE PETER CLARK: This is an interlocutory appeal by the applicant, Dr Potter, against the refusal a Chairman, Mr SJW Scott, sitting alone at the Southampton Industrial Tribunal on 24th July 1996 to make certain witness orders for which the applicant had applied.

The background is that the applicant was employed as a lecturer in social science at the Corporation of Lewes Tertiary College.

A complaint was made by the father of one his students, Abby Morgan, about the use of inappropriate sexual language allegedly used by the applicant during his classes.

An investigation was carried out leading to disciplinary proceedings. He was dismissed on the grounds of gross misconduct. His internal appeal against dismissal failed.

At the directions hearing held on 24th July the applicant applied for a total of 17 witness orders. 16 of them are set out in a letter which he wrote to the tribunal on 1st July 1996, and in addition, he sought an order in relation to a Dr Bond. That number was whittled down. In a letter to this tribunal dated 19th November 1996 the Chairman records that in relation to witness numbers 3, 6 7, 10 and 11, the applications in those cases were withdrawn by the applicant during the directions hearing. In relation to those numbered 8, 9 and 12 in the letter of 1st July no order was made because those witnesses are to be called by the respondent. Orders were refused in relation to witnesses 13, 14 and 15, Ms Georgina Weekes, Mrs Janet Bromilow and Ms Katie Paterson, on the grounds that the applicant conceded that the witnesses would attend the hearing voluntarily. A witness order was made in relation to a Mr Andy Barry. But in relation to Abby Morgan and her mother, Mrs Wendy Morgan and Ms Claire Stubbs and her father, Mr M T Stubbs, the Chairman refused to make witness orders on the grounds that he was not satisfied that their evidence was relevant to the issues to be determined by the tribunal at the full hearing of this complaint, and also that they would be hostile witnesses.

It seems to us having heard Dr Potter this morning, that at the end of the day he would inevitably be seeking to cross-examine those witnesses during the course of the tribunal proceedings. That, in our view, is not a proper ground for applying for a witness order. In relation to the Chairman's order as to the Morgans and the Stubbs, we can see no grounds for interfering with it on appeal.

He also complains on appeal that the Chairman was wrong not to make an order in relation to Dr Bond. As to that potential witness the Chairman says that the applicant wished to call Dr Bond to give expert evidence as to dangers inherent in the preparation of witness statements and on the appropriateness of language alleged to have been used by the applicant. In his judgment, the Chairman came to the conclusion that that evidence was not so material to the issues to be determined at the full hearing that a witness order was necessary.

We have asked Dr Potter how he puts his case on appeal in relation to that potential witness, and he said that he relied on the ground of perversity, when it was pointed out to him that that was the really the only basis on which we could interfere with that part of the Chairman's order. Having considered the matter, we are not driven to conclude that the Chairman's order in that respect was perverse. Accordingly we see no grounds to interfere with that part of his order.

Finally, it was suggested in the Notice of Appeal and pursued by Dr Potter that there was bias on the part of the Chairman because he had not read the originating application, but had only read the respondent's notice of appearance, and that he seemed to know the solicitor acting for the respondent, Mr Gordon.

We have considered that complaint, and it seems to us that it is not unusual for an applicant in person to believe that there may be some conspiracy between the lawyers, by that we mean the lawyer representing the other side and the Chairman. From what he has told us we cannot see that there was any appearance of bias in the Chairman's conduct of this directions hearing, and accordingly we do not see any substance in that ground of appeal.

This is a preliminary hearing held to determine whether or not there is any arguable point of law or points of law which ought to go to a full hearing. In our judgment there are not. Accordingly the appeal must be dismissed at this stage.

We would only add this. Because we have refused this appeal, that is not necessarily the end of the matter. Interlocutory orders are not set in stone. If during the course of the tribunal hearing of the complaint, it appears in the way that the evidence comes out that a particular witness is necessary, in the sense that his or her evidence is material to issues raised in the course of the proceedings, and the applicant shows that that witness will not attend voluntarily, or indeed on any of the other grounds set out by Sir John Donaldson in Dada v Metal Box Co Ltd [1974] ICR 559, it is necessary to issue a witness order, then it will be open to him to renew his application in relation to that potential witness.