United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1232_95_2903

Appeal No. EAT/1232/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29th March 1996

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR P DAWSON OBE

MR A E R MANNERS

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MR N OLIVER          APPELLANT

THE BANK OF ENGLAND          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR P R JAMES

(Lay Representative)


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of the appeal by Mr Neil Oliver against the decision of the Industrial Tribunal held at Bristol over five days on 26th and 27th January, 11th, 12th and 13th September 1995.

Mr Oliver's case against the respondent, the Bank of England, was that he had been unfairly dismissed. The tribunal unanimously decided that he had not been unfairly dismissed. The extended reasons for their decision, which run to 13 pages, were notified to the parties on 11th October 1995.

Mr Oliver appealed. His Notice of Appeal was served on 8th November 1995. In view of the allegations in an affidavit sworn by Mr Oliver about the course of the proceedings before the Industrial Tribunal, the Chairman's comments were requested. By a letter dated 13th December 1995, the Chairman sent to this tribunal a six page letter commenting in detail on the allegations in Mr Oliver's letter. In view of the allegations, the Chairman also thought it right to ask the lay members for their comments.

The case was listed as a preliminary hearing. The purpose of a preliminary hearing is to decide whether the Notice of Appeal raises a point which is reasonably arguable. If there are no points of law, or they are not reasonably arguable points, the appeal is dismissed without a full hearing attended by both parties. This tribunal only had jurisdiction to hear appeals on questions of law that arise on decisions of Industrial Tribunals or in the course of proceedings before an Industrial Tribunal.

We have examined the decision and the allegations in Mr Oliver's affidavit with the help of Mr James, who represents him as a friend. The decision, although reached after five days of evidence and argument, is a simple issue. This is clear from the way in which the parties identified the dispute in their own documents at the outset.

Mr Oliver presented his case to the Industrial Tribunal on 17th August 1994. It was a simple claim that he had been employed as an accounts clerk working on paid warrants in the dividend office of the Bank of England at Southgate House in Gloucester. He had been employed there since 5th June 1989. He had been unfairly dismissed on 17th June 1994. His complaints are set out in one column in Box 12 of the IT1.

The Bank of England's defence was that Mr Oliver had been fairly dismissed for performance, which did not reach an acceptable standard. The proper internal disciplinary procedures, which form part of the terms and conditions of service, had been followed. An appeal against the dismissal was heard and rejected. In accordance with those terms and conditions Mr Oliver was paid three months salary in lieu of notice.

In the extended reasons the tribunal identified the issue in paragraph 1 correctly. They said:

"1 In this case the applicant alleges that he was unfairly dismissed by the respondent. The respondent admits the dismissal, but alleges that it was for a reason related to the applicant's capability to do the job for which he was employed, which is a permissible reason for dismissal within s.57(2) of the Employment Protection (Consolidation) Act 1978, and that the dismissal was fair in all the circumstances of the case. ..."

The tribunal stated:

"We made the following findings of fact."

They then state their conclusions of fact on all the evidence which they have heard. Their conclusion in the final paragraph is this:

"43 Upon the whole of the evidence, we were unanimously satisfied that the reason for dismissal was, as Mr Jeans put in his final address to us, a lack of capability. That is a potentially fair reason for dismissal within s.57 of the Employment Protection (Consolidation) Act 1978. Moreover, we were unanimously satisfied that the respondent acted reasonably in treating that lack of capability as grounds for dismissal. It was clear from the evidence that, far from there being a conspiracy to get the applicant out, he was afforded a great deal of support and training and when he made sufficient improvement to warrant it, that improvement was recognised either by the removal of disciplinary sanction or by the extension of the disciplinary procedure to give further time for improvements to be made. In our view, the history as revealed by the witnesses and the documents was indicative of a quite remarkable patience shown to an employee who clearly tried that patience sorely on occasions; and we were unanimously satisfied that the dismissal, when it came, was fair."

We must ask on this preliminary hearing what, as a matter of law, is wrong with that decision? Mr Oliver and his representative, Mr James, may find it difficult to accept the findings of fact in decision. That is clearly the case. One example is that Mr James, on Mr Oliver's behalf, sought to raise a point that Mr Oliver's letter of appointment made no reference to any probationary period. This is a point dealt with in paragraphs 2 and 3 of the decision. Mr James took a good point in that there was nothing said in the letter about a probationary period, but the tribunal found as a fact that, on the balance of probabilities, Mr Oliver was told of his probationary period at the time of his engagement. That is a finding of fact made after hearing a number of witnesses from the bank who were cross-examined by Mr James, and also after hearing the evidence of Mr Oliver. There is no right to appeal against such a finding. We have no jurisdiction to entertain an appeal which challenges a finding of fact on conflicting evidence. It is the function of the tribunal to resolve the conflicts of fact. Our sole function is to correct errors of law, if there are any.

As to errors of law, we have a list of complaints, advanced as errors of law about the way in which the tribunal dealt with this case. I will deal with each one briefly in turn.

The first point taken was that the tribunal had erroneously refused to allow the union, BIFU, to be joined as a respondent in the proceedings against the bank. In our view, the tribunal acted correctly in law in excluding the union from the proceedings. Mr Oliver's claim was for unfair dismissal. His employer was the Bank of England. The only person you can sue for unfair dismissal is your employer. We reject the argument advanced by Mr James that the conduct of BIFU, in their acting, as he described, as the "proximate cause" of the dismissal, in any way rendered them liable to proceedings in an Industrial Tribunal for unfair dismissal. There might be grounds for proceedings in another court, for another cause of action, but that is nothing to with us. We express no view about it. The tribunal committed no error of law in exclusion of the union from these proceedings.

There was then a complaint by Mr James about the fact that the tribunal allowed the bank to start to call witnesses to give evidence on behalf of the bank, without him being given the opportunity, before evidence was called, to address the tribunal on the outline of the case, so that they could understand what the case was about before witnesses were called. Mr James pointed out that the Industrial Tribunal's own booklet indicates that he should be given a chance to outline the case. There was no error of law in the adoption of this procedure. The bank admitted that they had dismissed Mr Oliver. The onus was on the bank to establish to the tribunal by evidence that there was a potentially fair reason for the dismissal. It was for them to bring forward that evidence, not for Mr Oliver to do so. It was therefore right to allow them to call evidence first, and without an opening speech by Mr James.

As to being deprived of a chance to address the tribunal on an outline of the case, this is a matter within the discretion of the tribunal. We have pointed out to Mr James that the tribunal rules allows a lot of latitude to Industrial Tribunals on the appropriate procedure. Under Rule 13 they have to power to regulate their own procedure. Under Rule 9 they may conduct the hearing in such manner as they consider most appropriate for the clarification of the issues and generally to the just handling of the proceedings. If they felt they needed an opening address from Mr James in order to clarify the issues, they could have asked for it, but they did not commit any error by not asking for it. In our view, it was understandable why they thought it was appropriate to go straight into the evidence. As already indicated from the reading of the IT1 and the IT3 it was clear that this was a straightforward case of unfair dismissal. The issues that would arise in the case are identified in those documents. It was not necessary for the tribunal to have any further explanation of what the case was about. There was no error of law in that procedure.

Mr James complained of interruptions by the Chairman in the conduct of the case by Mr James: for example, the way he was asking leading questions and the way he was conducting the cross-examination. Mr Oliver complained in his affidavit that this would have led to Mr James losing the thread of the case, losing his train of thought, leading to witnesses being discharged from their evidence earlier than they should have been. Overall, if this allegation is right, it would have the effect of limiting the amount of evidence that could be challenged.

On this point we refer again to the Rules quoted which give to the tribunal the power to control the proceedings. It would only be an error of law on the part of the tribunal if they controlled the proceedings in such a way as to deprive one or both parties of an adequate opportunity to present their case. It is clear from the detailed comments of the Chairman and the lay members that there was an adequate opportunity given to Mr James, as Mr Oliver's representative, to put Mr Oliver's case to the Bank's witnesses. We refer, in particular, to the details which the Chairman has taken from his own note book on page five of his letter of 13th December 1995. They indicate that Mr James was able to conduct lengthy cross-examinations of a number of the Bank's witnesses, in particular, Mr Butters and Mr Sparks. If, during the course of those cross-examinations, the Chairman drew Mr James's attention to objections to asking certain types of questions, or drew his attention to the fact that certain questions were not relevant to the issues, that is what the Chairman is entitled to do. He has a discretion on these matters. They relate to the control of the proceedings. There is no error of law.

Mr James dealt with a number of more general allegations relating to corruption in the relocation of the Bank of England, to the demotivation of staff, to the low pay to staff and so on. We have read the decision. It is detailed. It deals with all the points that arose for decision on the claim and the defence. There may be matters not dealt with in the decision, because the tribunal did not regard them as relevant for decision.

In our view, there is no arguable point of law on this appeal and it should be dismissed. It was a straightforward case of an alleged unfair dismissal. The employer said that they had a potentially fair reason for dismissal. That was lack of capability. After the tribunal had heard all the relevant evidence they came to a conclusion of fact, that there was lack of capability and that the dismissal was dealt with in a fair and reasonable manner. There is no legal point arising on this decision. The appeal cannot proceed beyond today. It is dismissed.