United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR PATRICK ELIAS QC MR N RANDALL (of Counsel) Messrs Baker and McKenzie Solicitors 100 New Bridge Street London EC4V 6JA
For the Respondent	MR ANDREW HOCHHAUSER QC MISS CLAIRE BLANCHARD (of Counsel) Messrs Simmons and Simmons Solicitors 21 Wilson Street London EC2M 2TX


 


MR JUSTICE BELL: By an Originating Application to an Industrial Tribunal dated 3 June 1997 Mr Wheatley made a complaint of unfair dismissal on 27 May 1997 by both the Respondent Companies, Control Techniques Plc and Emerson Electric Company.

The First Respondent, Control Techniques' grounds of resistance extended to some ten pages and claimed not only that the merits were against Mr Wheatley, because of his alleged misconduct in various respects, but also that the Industrial Tribunal had no jurisdiction because in relation to his employment by Control he ordinarily worked outside Great Britain.

The Second Respondent, Emerson's grounds of resistance adopted the First Respondent's case on the merits, but started with a claim that Mr Wheatley was not employed under a contract of service by Emerson at all and, if he was, that he had insufficient qualifying service for a complaint of unfair dismissal.

No doubt mindful of his basic wage of £194,000 a year plus additional benefits and bonuses and the limitation on the amount of compensatory awards from an Industrial Tribunal, Mr Wheatley also began proceedings in the High Court for wrongful dismissal by a writ which was issued on 12 June 1997. Many of the matters raised in the Respondents' Defence to those proceedings mirror allegations made in their Notices of Appearance. The companies took the view that the substantive issues would be more suitably tried in the High Court and that once the High Court proceedings, seeking very large sums of money, were disposed of one way or the other, the Industrial Tribunal proceedings might well not be proceeded with, so they sought to defer, postponement or stay the Industrial Tribunal proceedings, pending the outcome of the High Court proceedings.

An Industrial Tribunal held at Shrewsbury, one Chairman sitting alone, refused a stay of the Industrial Tribunal proceedings and decided that the Industrial Tribunal proceedings should proceed to a hearing limited to the jurisdictional questions of whether, as against both Respondents, the Appellant ordinarily worked outside the USA and, whether, as against the Second Respondent only, the Applicant was an employee under a contract of service with sufficient service to qualify for a complaint of unfair dismissal.

The reasons for the decision to go ahead with deciding the jurisdictional issues and then to consider whether there should be any stay of the trial of the substantive issues before the Industrial Tribunal, appear essentially at paragraphs 5 and 6 of the Chairman's decision as follows:

"5. Mr Randall [Counsel for the companies] asks what is the point of dealing with the unfair dismissal claim, when it is likely to be insignificant in terms of remedy compared to the High Court action. He postulates that if the Applicant succeeds, the unfair dismissal claim will not be necessary. On the other hand, of course, the Applicant might lose in the High Court and wish to continue in the Industrial Tribunal. That would mean that the claim would be heard many years after what is normally regarded as the appropriate length of time in the Industrial Tribunal, which is supposed to be a summary remedy. Mr Randall says that it will double the expense. It seems to me that win or lose in the High Court, the Applicant will be entitled to continue here, whether the remedy be substantial or not.

6. Moreover, this issue being one relating to jurisdiction, it should be dealt with promptly. The Tribunal should decide now whether the case should be on its Register at all. That is clearly in the interests of the parties. It appears to me, therefore, that the most just and equitable and indeed the most sensible procedure would be to decide the issues of jurisdiction first. At that stage, the Tribunal can then decide (if indeed it arises) whether it is appropriate to allow the substantive issue to continue; or whether to defer pending the outcome of the High Court action. That will be a very different exercise."

That decision and those reasons did not appeal to the companies which have appealed against the Chairman's decision to go ahead with the jurisdictional issues and then take stock.

Mr Elias for the Company started his submissions by referring us to various authorities, the first two of which were cases where the question of adjourning Industrial Tribunal hearings until after the disposal of High Court proceedings arose. The first is the case of Carter v Credit Change Ltd [1979] ICR 908, the headnote to which reads:

"... the decision of an industrial tribunal in the exercise of their discretion under rule 11 (2) (b) to postpone the hearing of a complaint could only be reversed on appeal if it was shown that the tribunal had erred in law in the sense that they had either misapplied the law or their decision was so surprising that it could be characterised as perverse or one that no reasonable tribunal could have come to; that, although the need for a speedy hearing of a complaint of unfair dismissal was an important factor to be taken into account, there was no principle that an industrial tribunal should only postpone the hearing of a complaint if there were special reasons or unusual circumstances and, in so holding, the appeal tribunal had erred in law and the decision of the chairman of the industrial tribunal should be restored."

We were referred to various parts of the judgment of Stephenson LJ. It is unnecessary to repeat them here. It is clear that the words "erred in law" in the headnote cover what one might call the standard argument; that a decision has taken into account some factor which it ought not to have taken into account or omitted to take account of some factor which it ought to have taken account of.

In First Castle Electronics Ltd v West [1989] ICR 72, it was said by the Employment Appeal Tribunal with Wood J presiding:

"... that when exercising their discretion as to whether or not to adjourn proceedings pending a High Court action, an industrial tribunal should have regard to convenience, expedition and cost when considering all the factors relevant to the exercise of the court's discretion."

In the case of Maloney v London Borough of Hammersmith & Fulham, an unreported decision of the Employment Appeal Tribunal on 21 January 1998, Judge Bernard Hargrove QC, giving the judgment of the Appeal Tribunal said, among other matters, at page 11:

"... We start from the premise that an Industrial Tribunal is master of its own procedure. The tribunal has a complete and wide discretion whether to postpone the hearing of an application .... Further, this tribunal should not interfere in interlocutory decisions of the Industrial Tribunal where it is a matter of discretion ... unless an improper matter has been taken into account, an essential relevant consideration has not been taken into account or the tribunal has reached a perverse decision. .... The weight being given to any particular factor is essentially a matter for the tribunal and it is not for this tribunal to 'second-guess' the Industrial Tribunal."

Upon the back of those principles Mr Elias proceeded to an analysis of paragraph 5 of the Industrial Tribunal's decision arguing that the Chairman had made errors of law, for instance in treating the Industrial Tribunal proceedings as a summary remedy when they could only be so if the High Court proceedings did not take precedence and the substantive issues in the Industrial Tribunal, or rather the hearing and deciding of those issues, were not stayed, which he contended they clearly should be.

In our judgment that is reading too much into what the Chairman said in paragraph 5. As we read paragraph 5 in the context of the whole reasons, all the Chairman was saying, as indeed we believe his conclusions in paragraph 6 make clear, is that one should get on as far as one can, as fast as one can, following the spirit of the generally summary nature of industrial tribunal proceedings for unfair dismissal.

Mr Elias, in addition, argued that saying as the Chairman did that win or lose in the High Court the Applicant would be entitled to continue in the Industrial Tribunal whether the remedy there is substantial or not, was to ignore the reality that if the Applicant Plaintiff, Mr Wheatley, won in the High Court, where he is claiming several hundred thousands of pounds, he would never fight in the Industrial Tribunal. Nevertheless, the Chairman was strictly right. Mr Wheatley would be entitled, win or lose in the High Court, even if he recovered in the High Court very substantial sums of money, to come to the Industrial Tribunal. Certainly, if he lost in the High Court he might wish to do so. It is quite clear to us that none of the parties in this matter have very much trouble paying the next bill, and matters of pride might come into their considerations as well as matters of hard cash.

Mr Elias went on to challenge the Chairman's reasoning in the second paragraph of paragraph 6 as follows:

"The Tribunal should decide now whether the case should be on its register at all."

What, Mr Elias rhetorically asked, was the justification for that? What was the benefit in deciding now whether the case should be on his register at all? What was the benefit to the parties?

What, as we read the decision, the Chairman clearly decided in paragraph 6, was that whatever might happen with regard to the trial of the substantial issues, he could promptly take a step which would at least let the parties know whether they might have to continue to concern themselves with the Industrial Tribunal proceedings and which might get rid of the Industrial Tribunal proceedings altogether. Hence the words in parenthesis in paragraph 6.

It is argued, on behalf of the companies, that the Chairman did not take into account the expense involved in a hearing of the jurisdictional preliminary matters in the Industrial Tribunal. We are not prepared to accept that. The Chairman noted that Mr Randall had said that expense would be doubled. We think it is fair to assume that he did not accept that and it is fair to assume that the Chairman thought that the jurisdictional matters could be tried at relatively little expense. We stress "relatively", in proportion to what look to us to be enormously expensive proceedings if they are tried to a stage anywhere near court resolution of all matters.

We do not find that the Chairman took into account any factor of substance which he ought not to have taken into account, or failed to take into account any matter of substance which he ought to have taken into account. Was his decision nevertheless perverse? Was it a decision which no reasonable Chairman, properly directed, could come to? If the Industrial Tribunal proceeds to try the issues of jurisdiction and finds that it has jurisdiction and then gives precedence to the High Court proceedings, at least the issue of jurisdiction so far as the Industrial Tribunal is concerned is out of the way and if the Appellant comes back, as he might, that question has been disposed of. If the question of jurisdiction is heard and decided in favour of the Applicant and the Industrial Tribunal decides to go ahead with its proceedings, notwithstanding the High Court action, then again jurisdiction has been disposed of. If the Industrial Tribunal finds that it has no jurisdiction then, of course, the Industrial Tribunal matters are out of the way completely and one lump has been knocked off this basket of litigation matters.

We think that all those matters must have run through the mind of the Chairman and we have no doubt, putting the combined judgment of the three us together, that he was perfectly entitled to reach the decision which he did. It follows that this appeal is dismissed.

We do not propose to make an order for costs. The attitude to awards of costs in this jurisdiction is very different to that in many others as the wording of Rule 34 makes clear. It is obvious from what Mummery J said in Kwik Save that if there is an appeal to this Appeal Tribunal, seeking a re-hearing on a weighing or balancing exercise, which is dismissed, it may amount to a proceeding which is unnecessary, improper or vexatious or one which causes unnecessary delay. However, we think this appeal did genuinely go beyond a mere balancing exercise and did raise what we interpret as arguments in good faith by Mr Elias, that the Chairman had failed to take into consideration that which he should have done, or had taken into consideration that which he ought not to have done. Putting it at its lowest, we are not driven to the conclusion that looking at the Rule and looking at what Mummery J said in Kwik Save an order for costs should be made.