United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	APPELLANT IN PERSON


 


JUDGE HICKS Q.C.: Mr Spicer was employed as a part-time cleaner by the Respondent company, ISS Service System, under a contract of employment of 2 August 1995, and was dismissed on 18 October 1995 after a final written warning on 6 October. He complained to the Industrial Tribunal of unfair dismissal and sex discrimination.

The Tribunal dismissed the claim for unfair dismissal on the basis that Mr Spicer was ineligible because his employment had been for only five months, less than the two years necessary for the unfair dismissal jurisdiction to apply. They also dismissed his complaint of sex discrimination, having gone into the facts in substantial detail and made relevant findings and conclusions. There was also a question whether he was entitled to overtime pay in respect on the one hand of starting early, before the hour at which he was required to start, and secondly of working extra hours at the close of his time of required employment. The Tribunal found that, as to the former, his attendance early was purely voluntary and there was no requirement to do so, and as to the latter, that he was (as was not in dispute) paid for the extra hours but was not entitled to more than the standard rate, because the terms of the contract, as found by the Tribunal, did not regard that as being overtime to be paid at a different and higher rate.

Mr Spicer appeals, and sets out the grounds of appeal in a fairly lengthy document, but in presenting his case to us this morning he has very helpfully and succinctly, and we think rightly, marshalled his grounds under two heads. The first is that of bias on the part of the Chairman of the Industrial Tribunal. He gives four matters of conduct which he complains of under that head. The first is that he applied for an adjournment on the basis that he was unrepresented and wished to be represented by the Citizens Advice Bureau. That application was refused. We do not see how that can be any evidence of bias on the part of the Chairman. First of all it was a decision of the whole Tribunal, all three Members, not of the Chairman alone, and Mr Spicer makes no complaint of bias on the part of the other Members of the Tribunal. Secondly it was a decision wholly within their jurisdiction, which it was for them to deal with as a matter of discretion, about which, had they gone wrong in law, Mr Spicer could have appealed on that ground. It is simply, in our view, not arguably a basis for a complaint of bias on the part of the Chairman. I shall come back to points two and three, but the fourth of his particulars under this head is that the Chairman contradicted herself. That again, on the face of it, simply is not an allegation that can support a complaint of bias.

The other two points are: first, that the Chairman, Mr Spicer says, criticised him for being unprepared. Whether such a criticism was justified, whether even if justified it was necessary to make it, are matters which may go to whether the Chairman was, as it were, ideally patient, courteous and so on, or not, but it is no ground in our judgment for concluding that she was biased. Finally, he complains that she was sarcastic or rude. The example of that Mr Spicer gives is that at one point she asked a witness a question, as it were, on his [Mr Spicer] behalf and then turned to him and said " you should have asked that". Everything of course in such matters turns on the manner in which it was done, but on the face of it that is not by any means necessarily evidence of bias. He says that her general attitude is something that he objects to, that she was patronising and talked down to him.

This matter, although it comes to us by way of Preliminary Hearing, is a matter that is canvassed to this extent already, that Mr Spicer wrote a letter, of which he apparently has not kept a copy and of which we have no copy, to the Secretary of the Tribunals on 8 May 1996, very shortly after receiving the Tribunal's reasoned decision. The Regional Chairman answered that on 16 May. It is quite plain that that letter of Mr Spicer's had raised this question certainly of rudeness or sarcasm, because that is explicitly dealt with in paragraph 2 of the Regional Chairman's reply. It says:

"... The Chairman does not accept that she was rude or sarcastic."

It goes on to deal with the application for a postponement or an adjournment, which clearly had been raised in that letter, as it has been to us, and makes the point that all three Members considered that application and the circumstances and thought it was in the best interests of both sides for the case to go ahead. The remainder of paragraph 2 is also concerned with the question of adjournment. It is plain that this matter has been put to the Chairman for comments in the way which would have to be done if this matter went to a full hearing, and to that extent we are in a rather more informed position than might have been the case on a Preliminary Hearing.

We have considered all these points raised by Mr Spicer in support of his allegation of bias and we have come to the conclusion that there really is no arguable ground on which the appeal could proceed on that basis.

The second head of Mr Spicer's appeal concerns a conversation which took place at the end of the oral hearing before the Industrial Tribunal, at a time when no decision had been promulgated. It concerned documents which presumably had been disclosed by the employers and referred to in the course of the hearing, and the substance of the conversation seems to have amounted to a warning by the Chairman, presumably because of some indication by Mr Spicer that he might make use of these documents in a different context, that that might amount to, or would amount to, a contempt of court. That, presumably, was on the basis of the principle that documents produced by a party and disclosed to the other in the course of proceedings as a result of a requirement by a Court or Tribunal to do so, can normally only be used in the course of those proceedings and not made public or used in any way outside the proceedings.

Mr Spicer contested that view of the Chairman's and still does, and indeed would like us to rule on it, but we are quite clear that is not our function. The question is whether this shows an arguable ground on which the decision of the Tribunal erred in law. It was something that happened before the decision had been promulgated, and if it was something which might have affected the decision of the Tribunal on the substance of Mr Spicer's application adversely to him then it might begin to get off the ground as an arguable ground of appeal. Mr Spicer was quite unable to suggest any way in which it did affect the decision or could have done so, and we see no ground whatsoever for supposing that whatever view the Chairman formed and expressed on this point, right or wrong, had anything to do with the decision which the Tribunal, as a whole, came to and promulgated as its findings on the matters which were in issue before it and on which it gave its decision. We therefore conclude that that also is not an arguable ground of appeal and that the appeal itself must therefore be dismissed.