United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS J McNEILL (of Counsel) Leathes Prior Solicitors 74 The Close Norwich Norfolk NR1 9DR


 


JUDGE PETER CLARK: The appellant, Mr Bewry was employed by the respondent Council from 17th September 1992 until his dismissal in November 1996. He was the respondent's Health and Safety Officer and his trade union's elected Health and Safety representative within the meaning of s. 100 (1)(a) and (b) respectively of the Employment Rights Act 1996.

Following his dismissal he wrote to the Industrial Tribunal on 11th November 1996 a letter which was treated by a Chairman of Industrial Tribunals at Newcastle as an Originating Application complaining of unfair dismissal for an inadmissible reason, coupled with an application for interim relief under s. 128 of the Act.

Such applications are designed to be dealt with speedily, as the scheme of s. 128 shows. This application took a total of 20 days between February and July 1997 before a full Industrial Tribunal sitting at Newcastle under the Chairmanship of Mr D Reed. The question for the Industrial Tribunal on the interim application was whether it appeared to the tribunal likely that at the substantive hearing of the complaint the tribunal would then find that the reason or principal reason for dismissal was a reason which we have described, by way of shorthand, as Health and Safety activities. The procedure is identical to the long-standing protection against dismissal for trade union membership and activities.

Here, it was the respondent's case that the appellant was dismissed by reason of misconduct involving financial irregularities.

The appellant represented himself before the Industrial Tribunal. For reasons best known to himself he proceeded to call witnesses adverse to his cause, including one of the Councillors who had sat on the internal appeal committee which dismissed the appellant's appeal against dismissal. That witness, Mr Heaslip, who impressed the tribunal of fact, made it clear that the panel was satisfied that the appellant was guilty of gross misconduct in upholding the decision to dismiss taken originally by Miss Whittle, the respondent's Director of Social Services.

Nor did the appellant help himself. His evidence was characterised by the tribunal as unreliable. Further, the tribunal record in their extended reasons at paragraph 4(g) that in cross-examination the appellant said that there was nothing to suggest that Miss Whittle did not believe what she said she believed, that is that the appellant was guilty of misconduct. To compound his problems he issued a further Originating Application alleging that the reason for his dismissal was unlawful racial discrimination. When he realised the inconsistency between that reason and the reason relied on in the interim relief application, he withdrew the later complaint.

In all the circumstances, at the close of the appellant's case, Counsel for the respondent made a submission of no case to answer. The tribunal, accepting that it is an exceptional course to take, acceded to that application in the particular circumstances of this case.

Having dismissed the interim relief application, the tribunal turned to consider an application made on behalf of the respondent for costs. The appellant preferred not to stay and make representations on the issue of costs, nor as to his means. He left the tribunal with the parting remark that the tribunal could make an order for costs against him if it wished to do so.

The tribunal then found that the appellant had acted frivolously and/or vexatiously and unreasonably in bringing the interim relief application; had from time to time conducted the proceedings abusively and disruptively, and behaved unreasonably in continuing the proceedings in face of evidence which he called rendering the application hopeless.

Since the appellant did not deign to give evidence as to his means, nor argue against an order for costs, costs in the application were ordered against him to be taxed if not agreed on County Court Scale 2.

Now there is an appeal, in which Miss McNeill of Counsel has deployed various arguments with a view to persuading us that the appeal raises arguable points of law to go to a full appeal hearing. We shall consider each in turn.

Her first point is that the tribunal erred in acceding to a submission by the respondent of no case to answer. It was essential, she submits, that the tribunal heard from the dismissing officer, Miss Whittle, in order to form a proper view as to the likelihood of an Industrial Tribunal at the substantive hearing finding that the reason or principal reason for the appellant's dismissal was an inadmissible reason. She reminds us of the words of Phillips J in Humphreys v Board of Managers of St George's Church of England (Aided) Primary School [1978] ICR 546, at 549. Usually, an Industrial Tribunal, and those remarks were made in the context of discrimination cases, ought to hear from the respondent before deciding a case.

In a normal case that submission would have considerable force. However, this is not a normal case. The appellant could simply have dealt with the misconduct allegations and given evidence as to his Health and Safety activities with the respondent, and Miss McNeill has taken us to a number points made by the appellant, first, that he was in fact a Health and Safety Officer and Health and Safety representative; secondly, that there was a history involving a dispute early on as to whether or not he would be recognised as the Health and Safety representative by the employer which had led him to bring grievances against the management and also to issue Originating Applications before the tribunal; thirdly, an investigation into his alleged misconduct did not include an interview with him; fourthly, that the disciplinary hearing was held in his absence; and finally, that before the Industrial Tribunal the appellant had put forward answers to all of the individual misconduct charges faced against him. Had he done simply that, and proved a credible witness, the onus would lie firmly on the respondent to lead evidence of misconduct being the true reason for his dismissal. But he did not. He called a member of the internal appeal panel to put the respondent's case for them. He did not challenge Miss Whittle's belief in his misconduct. He came across to the tribunal as an unreliable witness. He issued, then withdrew an Originating Application advancing a wholly different reason for dismissal. In short, he destroyed his own case. In these circumstances we think that the tribunal was entitled to stop this application which at the end of 20 days appeared to it to be manifestly hopeless when it did, and thereby prevent further wasted time and expense.

Secondly, her instructions are that the appellant did not say what he is recorded by the Chairman as having said in cross-examination in paragraph 4 (g) of the reasons. We are asked to direct that the Chairman provide his Notes of Evidence on this part of the evidence. We decline to do so. This is not a finding of fact which it is said is unsupported by the evidence; it is the Chairman setting out the appellant's evidence as he noted it. We are content to proceed on the basis of what is there recorded in the reasons.

Then it is said that even if the appellant said what he is recorded as saying, little or no weight should have been given to it. Why not, we ask rhetorically? It goes to the heart of the appellant's complaint on the interim application and of course it is not the sole factor which the tribunal took into account in concluding that the submission of no case to answer succeeded.

Finally, the order for costs. It is said that this application was not frivolous, vexatious or unreasonable. In our view that is a judgment which this tribunal was fully entitled to reach after listening to the appellant's case over 20 days. It is also said that no reasons are given for the finding that the appellant behaved abusively and disruptively during the proceedings. In our judgment it is not necessary for the tribunal to set out each and every incident of abusive or disruptive behaviour in their reasons. Then it is said that the tribunal ought not to have taken into account the time which this application took to hear. Again, we ask, why not? It seems to us that the time has come when parties before Industrial Tribunals must understand that pursuing hopeless cases at inordinate length before Industrial Tribunals, very often, in our experience against public-funded bodies as in this case, cannot necessarily be done at no expense to themselves. Miss McNeill points out that it was known to the tribunal that the appellant was in receipt of benefits only. However, there was no evidence before the tribunal as to any savings or properly or other assets which the appellant owned. He could have given evidence about this, but he chose not to, instead he left the tribunal room. We have been referred to a very recent judgment of Morison J on the question of costs being awarded against an unemployed applicant. There is no case which says that a party's impecuniosity must always excuse him from having to pay his opponents costs. In this case, the appellant having declined to give evidence as to his means; having been given, in our judgment, a sufficient opportunity to do so, it seems to us that the tribunal was entitled to make the costs order which it did in the exercise of its discretion.

In these circumstances, we are entirely satisfied that this appeal is without merit and must be dismissed.

An application, by Ms McNeill on behalf of the appellant, for Legal Aid taxation is granted.