United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MISS M TETHER (of Counsel) Instructed by: Mr A Granger Messrs Taylor Joyson Garrett Solicitors Carmelite 50 Victoria Embankment Blackfriars London EC4Y 0DX
For the Respondent	MR B BATTCOCK (of Counsel) Messrs Bird & Bird Solicitors 90 Fetter Lane London EC4A 1LP


 


MR JUSTICE MORISON (PRESIDENT): In December 1997 the applicant presented an Originating Application to an Industrial Tribunal. The document was accompanied by a letter from his solicitors indicating to the respondents that he had a claim for breach of contract because his contract had been terminated without notice when two years notice was implied, and that he had been advised that this claim should be brought in the High Court as the amount claimed would exceed the tribunal limit of £25,000.

The IT1 which contains the applicant's complaint says that he was unfairly dismissed; that he believes that he was dismissed because he declined an offer of indefinite secondment which was not a fair offer; that if he was redundant, as alleged, he was unfairly selected for redundancy. He also complains that he was unlawfully discriminated against.

In paragraph 8 of the applicant's grounds of complaint he says that if he is neither reinstated nor re-engaged, he will have great difficulty in finding other employment, and he refers to the "stigma" of having worked for this group of companies for so many years affecting his ability to find employment in the field of international trading. Whether a claim for "stigma" damages and a claim for reinstatement and re-engagement sit happily together is a matter for the Industrial Tribunal to consider. In paragraph 9 he sets forward claims for breach of contract which do not include the breach of contract referred to in the letter which accompanied the IT1.

There was a directions hearing in April 1998. The parties very sensibly drew up a list of issues which were to be considered by the Industrial Tribunal. There were nine of them. By order or agreement between the parties, it does not matter which, those nine issues were boiled down simply to six. The ones which were excluded were:

"Was there a term of the Applicant's contract of employment that he had a job for life? Did the Applicant have such an agreement with the second Respondent in like terms?

What was the Applicant's contractual notice period?

Is the Applicant's entitled to "stigma" damages for breach of his contract of employment?"

Thus, the hearing which was then fixed to commence on 14th September 1998 for a number of days was a hearing to be confined to the issues which the parties had identified bar the three which I have just referred to. Accordingly, the Industrial Tribunal had decided at the interlocutory stage that it would first set about the task of dealing with the other issues which it had been identified:

"When was the Applicant employed?

By whom was the Applicant employed?

What was the reason for his dismissal?

Was the Applicant unfairly dismissed?

Was the Applicant racially discriminated against?

What was the Applicant's remuneration?"

The hearing is just about ready to start, in the sense that witness statements have been exchanged and the documentation is, more or less, in a completed state.

In June 1998 the High Court proceedings which had been foreshadowed in the letter to which I have referred, were issued and served on the respondents. By those proceedings the applicant is claiming that he was promised a "job for life". He also says that he was entitled to two years notice by reason of an implied term. He claims "stigma" damages.

A month later an application was made to the Employment Tribunal that the Employment Tribunal proceedings should be stayed pending the High Court proceedings being concluded, on the grounds that there was an overlap between the two sets of proceedings and that the more convenient and preferable forum for the determination of the substantial issues between the parties was the High Court of Justice. That application was refused. The Employment Tribunal, at the request of the respondents who had applied for the stay, gave reasons for the refusal. What the letter does is to identify the six questions, to which I have referred, which is due for consideration at the September hearing. It then continues:

"The Chairman asks himself the question: In which court is the action most conveniently and appropriately to be tried bearing in mind all the surrounding circumstances including the complexity of the issue the amount involved, the technicality of the evidence and the appropriateness of the procedure.

In this instance it is unlikely that either proceedings in the Employment Tribunal or the High Court will conclude the dispute between the parties.

The Tribunal is well placed and competent to decide the issues what will be before it set out above. All of the issues raised and to be decided are matters dealt with on a daily basis by Tribunals.

The hearing will proceed on 14 September. There will be no stay."

Miss Tether, in an able and sustained argument, supported by a full written skeleton argument, for which we are especially grateful, submits that the Employment Tribunal has effectively erred in law. The decision of the Employment Tribunal can be described as succinct. What Miss Tether says is that the tribunal have concentrated on two questions, namely would either sets of proceedings conclude the dispute between the parties; and, was the Employment Tribunal competent to decide the issues which would be before it? She respectfully submits that that is a narrowing down of the real test which the Employment Tribunal must apply, which the learned Chairman, through his staff, had correctly set out in the first paragraph of the letter to which I have referred. She says that on analysis the centre of gravity of the dispute between the parties is to be found in the High Court rather than in the Employment Tribunal because in the High Court the value of the claim for a job for life is of the order of £850,000; the value of the claim for two years' notice is of the order of £175,000; and the "stigma" damages are potentially extremely large and larger than the amount which could be recovered at an Employment Tribunal when dealing with a case of breach of contract or unfair dismissal if "stigma" damages are capable of being awarded in those circumstances. So, she says, by reference to the amount at stake and the complexity of the issues which will be involved in resolving those questions, the High Court is the better place, otherwise the employers are going to be at risk that findings of fact made by the Employment Tribunal in relation to the issues which they are going to hear and determine, will bind the parties and the High Court. She points out that the Employment Tribunal procedure is less formal than the procedure in the High Court in the way in which, in particular, evidence is taken and received. She points out that there are very serious attacks on the integrity of the alleged employers, that is the respondents, both on the integrity of the business, but also on the integrity of the owner of the business who is named as a respondent. She says that it would be fair that those matters should be dealt with in the High Court. She also makes a number of other points contained in her skeleton argument, including the fact that there is a risk if the Employment Tribunal proceedings go ahead that the applicant will be entitled to a windfall as a result of the decision in O'Laire v Jackel Limited (No. 2) [1991] ICR 718 at 731E to 732F.

On behalf of the applicant, the respondent to this appeal, Mr Battcock in an equally compelling argument, says that it is the applicant's desire to keep the date for 14th September 1998; that whilst there may be some overlap between the identified issues and those which could arise in the High Court, the extent of the overlap has been exaggerated by the respondents in their submissions; that the Employment Tribunal has not erred in law in the approach it took. It has given its reasons succinctly; and clearly was of the view that there was nothing extraordinary about the issues which it was going to have to deal with, as defined in the letter, so as to suggest that they were not the better forum for resolving these disputes. He said that the dismissal was effected last September and it was plainly desirable that there should be as early hearing date as possible. He also said that the appellants had delayed somewhat between 29th June when they were served with the proceedings and the end of July when they first made their approach to the Employment Tribunal.

We are clearly of the view that the Employment Tribunal's decision on the question of the stay cannot be faulted. The discretion which is given to an Employment Tribunal to adjourn or stay proceedings, is conferred by Rule 13(7) and is wide one. Broadly speaking, the Employment Appeal Tribunal will only interfere with the exercise of a wide discretion of that sort, if it is satisfied that the Employment Tribunal has misdirected itself, either overtly, or has arrived at a conclusion which is so odd that it can be categorised as perverse, that is an implied misdirection.

In this case, as it seems to us, having asked themselves the right question, the Employment Tribunal are not to be criticised for the succinct way in which they answered it. The tribunal are indicating to the parties that this is, what one might call the sort of "bread and butter" work which is done everyday by an Employment Tribunal. Indeed, by reference to the issues, we agree with that. Those are just the sort of questions with which Employment Tribunals are dealing on a daily basis.

We consider that the tribunal were right to have taken that view. We ourselves, would have arrived at a similar conclusion having had the benefit of the full argument between the parties. There is no ideal solution in this case. If the High Court proceedings started and if they concluded the case in favour of the applicant, that would still leave the question in relation to unfair dismissal unresolved, because that is not an issue before the High Court, and the matter would have to go back before the Employment Tribunal. It would be difficult, if not impossible, for the High Court, as we see it, to adjudicate on the question of compensation for any breach of contract without knowing whether the applicant was going to be reinstated or re-engaged. If, on the other hand, the case starts in the Employment Tribunal, then the Employment Tribunal will resolve the issues to which the Chairman has drawn attention. There will then be an opportunity for the Industrial Tribunal to consider to what extent it should then go on to deal with issues of compensation. It may well feel that it can deal with issues relating to reinstatement and re-engagement, should they arise, but the question of compensation will require some reflection on the part of the Employment Tribunal having regard to the existence of the High Court proceedings and whether there is genuinely any overlap and whether there would be any embarrassment if they were to go ahead and consider those questions. It seems to us in those circumstances that the decision of the Employment Tribunal was obviously the sensible one. The complexity of the issues is not such as to require a stay. The amount involved can be dealt with at a later date if needs to be. The technicality of the evidence and the appropriateness of the procedure both militate in favour of the Employment Tribunal.

Accordingly, having regard to all the specific factors which both parties accept are the correct factors to be taken into account, we are of the view that the Employment Tribunal was obviously the better forum.

That is enough to dispose of this appeal which will be dismissed. We hope very much that the parties will find a sensible way of dealing with the evidence. It will be entirely for the Employment Tribunal itself to decide how best to proceed, but they might wish to consider the possibility of using part of the time allocated for reading the witness statements which have now been exchanged, so perhaps to avoid the necessity for the witnesses having to go to the witness table and read them out. That, as I say, entirely a matter for the tribunal and they must proceed as they think best.

Nothing we have said in this judgment is intended to be an indication as to how they should determine any of the issues, nor what course they should take once those issues have been determined. We think that the tribunal has acted entirely correctly so far in this case.