United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE PETER CLARK: No procedure can be guaranteed to fit every case. On occasions it is necessary to adapt the procedure to fit the circumstances of the particular case.

We have before us three separate appeals brought by Mr Capek against Industrial Tribunal decisions in his long-running litigation with his employer, Lincolnshire County Council. He commenced employment as a social worker on 1st January 1989. On 25th April 1994 he was called to the home of a mother who was having problems with her eight year old son who was out of control. Following the appellant's arrival the boy showed considerable aggression towards his mother, kicking and attacking her. In this difficult situation the appellant intervened in order to restrain the child. In the course of so doing he slapped the boy on the face, an act which he instantly regretted and for which he apologised.

When his employers learned of this incident they took a serious view of it. They invoked their disciplinary procedure, culminating in a hearing held on 10th October 1994. The upshot was that the appellant was dismissed.

He appealed internally against that decision. His appeal was finally heard by Councillors on 7th July 1995. The dismissal was confirmed, but he was re-engaged in a different capacity.

That might have been the end of the matter, but not a bit of it.

The appellant has pursued a number of tribunal proceedings against his employer, each without success. Now he brings these appeals.

This is a PHD hearing, held to consider whether the appeals raise any arguable point or points of law to go to a full hearing, and for directions to be given for the future disposal of those matters if permitted to proceed.

The EAT Practice Direction provides, by paragraph 8 that skeleton arguments should be provided by all parties in the course of appeals unless the Employment Appeal Tribunal otherwise directs. In a case of this detail a skeleton argument, with a chronology, is absolutely essential in order that this Employment Appeal Tribunal may properly understand the issues raised and the arguments advanced.

By a letter dated 18th February 1998 to the Registrar the appellant indicated that he had already prepared skeleton arguments in the form of his amended Notice of Appeal, for which leave has not yet been given, in appeal EAT/1314/96; his written submission to the Industrial Tribunal and application for a review in appeal EAT/564/97 and his written submission to the Employment Appeal Tribunal in appeal EAT/709/97, together with further documents referred to in the letter.

Quite simply, as we have told Mr Capek today, those documents do not constitute skeleton arguments, which are designed to indicate shortly and concisely what are the real issues in the appeals, and how each party puts his case, referring where necessary to documents by page numbers in accordance with the EAT index. It is quite impossible for us to begin to do justice in these cases without proper skeleton arguments.

One course might have been to adjourn this preliminary hearing so that the appellant can lodge a proper skeleton. However, we suspect that no useful purpose will be achieved by holding a further ex parte preliminary hearing. We need to see how the respondent puts its case in reply.

In these circumstances we shall order a full inter partes hearing, but without having formed any provisional view as to whether these appeals raise any arguable points of law. If, at the end of the day, this has been a wholly wasted exercise, we shall then consider any application by the successful party for a costs order in accordance with Rule 34 of the Employment Appeal Tribunal Rules.

Meanwhile, we shall direct that the case be listed for two successive days, the first day to commence at not before 11.30 a.m. I shall reserve this case to myself.

Unusually, we shall order sequential exchange of skeleton arguments. The appellant shall serve his skeleton argument and chronology within 10 weeks of today on both the respondent and the Appeal Tribunal. The respondent will then have 28 days from the date on which the appellant's skeleton is received to serve a skeleton argument in reply, both on the appellant and the Employment Appeal Tribunal. If deemed necessary, the respondent shall also serve a chronology. The case will be listed for hearing to take account of this timetable, ensuring that the full Employment Appeal Tribunal which hears this appeal has at least 14 days in which to read the skeleton arguments and papers in advance.

There are further applications made before us by Mr Capek today. First, he wishes to obtain leave to amend his Notice of Appeal in the first appeal EAT/1314/96. We have explained to him that it will not be open to him to argue new points which were not argued before the tribunal below. The way in which we propose to deal with this application is to direct that the appellant prepare a draft amended Notice of Appeal in proper form and deal in his skeleton argument with the grounds upon which he seeks leave to amend. The respondent may then deal with those grounds in the skeleton argument in reply. The final question as to whether or not leave be granted will be dealt with at the beginning of the inter partes hearing.

Similarly, the application to adduce new evidence should be dealt with in the appellant's skeleton argument.

He raises a specific point in relation to the report in The Times newspaper of 20th February 1998 in the case of Lincolnshire County Council v RJ and others, X and another intervening. He points out from the report that it appears in that case the County Council supported a foster parent who had admitted causing actual bodily harm to a child in his care. Mr Capek submits that that shows double standards so far as the County Council is concerned when compared with the incident in which he was involved. We are asked to make an order for discovery of the social services files in the cases referred to in that authority.

We decline to do so. In our view, the Council's attitude towards a foster parent or potential foster parent, is not truly comparable with the disciplinary circumstances which arise in this case applying the principle in Hadjianou v Coral Casinos [1981] IRLR 352. We therefore reject that application.

The appellant has also renewed his application for Chairman's Notes of Evidence in connection with the first appeal, first raised in his letter dated 20th June 1997, at pages 174 to 175 of the first EAT bundle.

The way in which we propose to deal with that application is to direct that a copy of that letter be sent to the respondent by the appellant within seven days of today's date. The respondent is to indicate within 14 days of receipt of the letter whether they agree that the witnesses Messrs Payne and Priestly gave evidence to the effect set out in the appellant's letter. Failing such agreement, there is liberty to the appellant to renew his application for Chairman's Notes to me and I shall deal with that on paper.

Finally, the appellant made certain applications in relation to the second appeal, in particular, directed to the difference, as he puts it, between the ex tempore reasons given by the Chairman on the occasion of the hearing before the tribunal in that case, and the written extended reasons finally promulgated.

We make it clear that it is the final extended reasons which alone are to be considered by this Appeal Tribunal and, therefore, we make no direction in that respect.

Both parties have liberty to apply for further directions if necessary. We hope that they are not, but we anticipate they may be. In which case, those applications should be made in writing to this tribunal directed for my attention.