United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR RICHARD YOUNG (Friend)
For the Respondents	MR RON KANE (Relations Adviser)


 


JUDGE PETER CLARK: This is a hearing for directions held to consider various interlocutory applications made by the appellant, Mr Derek James Martin, in this appeal. Before turning to those applications it is necessary to outline some of the history of the matter.

The appellant was employed by the respondent College as a lecturer in brickwork in the Construction Department from September 1987 until his dismissal effective on 24th May 1994.

Following his dismissal he presented a complaint of unfair dismissal to the Central Office of Industrial Tribunals on 13th June 1994. The claim was resisted by the respondent on the ground that a major customer of the Construction Department, the Construction Industry Training Board ["CITB"], had questioned the appellant's teaching competence and insisted that he did not teach any of the CITB brick-laying students in future. That was some other substantial reason for dismissal said the respondent, and they contended that the dismissal was fair.

The complaint came before a full Industrial Tribunal sitting at Southampton under the Chairmanship of Mr R H Trickey on 14th November 1994. The case was not concluded on that day and was adjourned for a further four days listed for 20th-23rd March 1995. In fact, the evidence and argument was completed on 22nd March, and the tribunal spent the final day listed considering their decision. In the event the tribunal dismissed the complaint by a decision promulgated on 4th May 1995. That decision was accompanied by extended reasons covering 16 pages. Throughout the four day hearing the appellant was represented by solicitors and Counsel.

Following promulgation of the tribunal's substantive decision the appellant applied for a review. That application was summarily dismissed by the Chairman on 4th August 1995, on the ground that it had no reasonable prospect of success. Again, extended reasons were given for the review decision.

Meanwhile, on 13th June 1996 solicitors for the appellant entered a Notice of Appeal to this appeal tribunal on his behalf.

The grounds of appeal, drafted by the appellant himself in a letter to his solicitor, challenge findings of fact made by the tribunal, assert that the decision was perverse and accuse the Chairman of bias and/or misconduct in his conduct of the proceedings.

Those complaints of misconduct made against the Chairman were supported by affidavits sworn by the appellant and Mr Young, a retired lecturer, who attended the Industrial Tribunal hearings and who appears on behalf of Mr Martin today. Those affidavits were sworn on 8th August 1996.

In response to those affidavits the respondent lodged affidavit evidence sworn in reply on 30th December 1996 from Mr Kane who conducted the case below and appears before me today on behalf of the respondent; Mr Cowser, the College Principal who attended the tribunal hearings and Mr Terry, who had been the College Vice-Principal at the relevant time, and who had also attended the tribunal hearings.

Further comments on the appellant's allegations of misconduct have been received from the appeal tribunal from the Chairman and each of the two lay members.

For completeness, I note that an earlier application by the appellant on 15th May 1996 for the Chairman's Notes of Evidence was considered and rejected by Mummery J, (then President of the Employment Appeal Tribunal) on 26th July 1996. I do not regard myself as being bound by that direction today.

The applications

There are four applications before me today. First an application for the Chairman's Notes of Evidence of all four days tribunal evidence. Secondly, further and better particulars of the comments provided by the Chairman and by each of the two lay members. Thirdly, further and better particulars of the three affidavits lodged on behalf of the respondent; and fourthly, a direction that a copy of any instructions in writing given to Industrial Tribunal members of staff as to the handling of witnesses or potential witnesses should be provided to the appellant.

Mr Young has developed each of those applications in the course of his submissions, to which Mr Kane has responded.

The submissions

Chairman's Notes of Evidence

Paragraph 7 of the Employment Appeal Tribunal Practice Direction makes it clear that that where a party seeks a Chairman's Notes of Evidence it should specify precisely what evidence given by what witness or witnesses is required as going to which particular point in the grounds of appeal.

In support of this application, Mr Young first of all directs my attention to the Industrial Tribunal's extended reasons at paragraphs 27 and 33 where the tribunal deal with the internal appeal hearing. Their finding was that there was no defect in the appeal procedure which rendered the appeal process defective. Further, they say in paragraph 27:

"One would not expect the hearing to be conducted as a court of law and it is trite law that these domestic Tribunal should not be entramelled with strict legal procedure."

Mr Young submits that those findings were perverse, and that the Chairman's Notes of Evidence relating to the appeal question are necessary for determination of this appeal.

In my view they are not necessary. The argument can be presented on the basis of the tribunal's reasons, and it is not necessary to go into matters of evidence. The danger is that we end up, in effect, rehearing issues that were ventilated before the Industrial Tribunal. We cannot on appeal interfere with the findings of fact by the Industrial Tribunal, and it would be wrong for us to enter into that exercise.

Secondly, Mr Young draws attention to a complaint that appears in both the affidavit of the appellant and in Mr Young's own affidavit in relation to an incident involving one of the respondent's witnesses Mr Course. There is an answer to what was said by the appellant and Mr Young in the affidavit of Mr Kane. The Chairman in paragraph 8 of his comments simply says that he had no recollection of any of these matters.

I accept Mr Kane's submission that if he has no recollection of those matters, it is highly unlikely that he will have any Notes of Evidence about it; and looking at the way in which the point is put, that would not be altogether surprising. It is dealt with in the affidavits, and in my view, that is sufficient material for the full appeal tribunal to deal with that particular point.

Those being the two principal grounds on which Notes of Evidence are sought, I shall reject this application and direct that no Chairman's Notes of Evidence will be necessary.

Request for further and better particulars of the members' comments

Paragraph 9 of the Practice Direction sets out the procedure to be followed where a complaint is made about the conduct of the proceedings by the members of the tribunal. Paragraph 9.4 provides:

"(4) When the direction has been complied with [that is to swear and file affidavits] the Registrar will notify the Chairman of the Industrial Tribunal and provide copies of the Notice of Appeal, the affidavits and other relevant documents to the Chairman so that he had and, if appropriate, the lay members of the Industrial Tribunal have, an opportunity to comment on them. Those comments will be supplied by the EAT to the parties."

That has now taken place. We have the comments of the Chairman and each of the lay members, and copies of those comments have been supplied to the parties. There is no provision to extend the debate with the members of the Industrial Tribunal, and in my judgment, it is not appropriate to do so. The matter will proceed to the full hearing of the appeal on the basis of the comments that have already been received.

Request for further and better particulars of the respondent's three affidavits

Similarly in relation to the third point, affidavits are not pleadings, it is not appropriate to order further and better particulars of their affidavits which set out evidence.

Mr Young has not provided any specific questions which he wishes to put to the three opponents. But even if he had, it does not seem to me that there is any purpose in prolonging the paperwork which has already been generated in this appeal. I accept Mr Kane's submission that if the respondents have not dealt adequately with the points made by the appellant and Mr Young in their affidavits, then it will be the respondent that suffers not the appellant.

Request for a direction to the Clerk at Southampton Industrial Tribunal to provide copies of any written instructions which he or she received in relation to the handling of witnesses

I first of all asked Mr Young what power I had to make such an order, and I did not really get a satisfactory reply. I do not think I have power to make such an order, but even if I did, I would not make the order that is sought.

The basis of this complaint is that before the tribunal hearing commenced, the appellant had asked the staff at the Industrial Tribunal office that appropriate care be taken to avoid pressure being applied to witnesses, particularly those whom he had subpoenaed to attend and who were still employed by College. Mr Young tells me that he was told by a member of the tribunal staff that those witnesses would be put in the applicant's room. In the event, one or more of them did not come into the applicant's room and apparently chose to go into the respondent's room.

In my experience that is not uncommon. If a person still employed by the respondent is subpoenaed to attend by the applicant, a former employee, it must follow that that person was unwilling to attend in the first instance. There is no property in witnesses. There is no requirement for a witness who has been subpoenaed to speak with the party subpoenaing him or her before going into the witness box and giving evidence. In any event, there is absolutely no power in a member of the tribunal staff to require a potential witness to go into one waiting room or another, they simply tell the person what the geographical layout of the building is and it is then a matter for them which room they decide to go in. So for all these reasons, I dismiss the fourth application.

Conclusion

In looking at the applications globally, Mr Young accepts that my task is to determine as a matter of discretion what material is necessary for the proper disposal of this appeal at the full appeal hearing, bearing in mind fairness to the parties. I have taken that into account in looking at these matters individually and overall, and I am quite satisfied that there is sufficient material presently available for this appeal to be properly determined at the full hearing.