United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D CARRINGTON (Of Counsel) Civil Rights (UK) The Legal Consultancy First Floor, Mandela Rooms New Justice House 411a Brixton Road London SW9 8DG


 


JUDGE J ALTMAN: This is an appeal from a decision of the Industrial Tribunal which sat at London South between 9 and 13 March 1998. It comes before us by way of a preliminary hearing to determine whether there is any arguable point of law such as to justify consideration of this appeal in full by the Employment Appeal Tribunal.

Before this appeal came before us the Appellant, Mr Williams, had prepared long and detailed allegations (as a layman) of the criticisms he wished to make of the decision of the Industrial Tribunal. The Chairman had furnished to the Tribunal a long and detailed response and Mr Williams had prepared and submitted his long and detailed response to that. However, it seems to us that, in this particular case, where there are certain allegations about not only the behaviour of the Tribunal but, more importantly, the exercise of discretion in relation to various procedural matters, in the absence of the Respondents - who could assist as to what happened before the Tribunal - the better forum for these matters to be resolved is a full hearing before the EAT.

We bear in mind that the provisions of the Industrial Tribunal's (Constitution and Rules of Procedure) Regulations 1993 provide, in rule 13(1) of schedule 1: "...the Tribunal may regulate its own procedure." Accordingly, when a Tribunal so exercises its discretion it is difficult to establish a point of law upon which to challenge such exercise. However, we have had the advantage, as has the Appellant, of the fact that Mr Carrington has appeared before us on his behalf today and has very helpfully analysed the essential points which can be distilled from the appeal which Mr Williams wishes to bring. We have considered them and, some very few - as will emerge - made findings about. But the most useful thing, it seems to us, we can do, is to spell out those matters, in list order, that can be taken further and canvassed on appeal.

The first matter is the argument that the Tribunal erred in law in concluding that the Applicant was not an employee. The findings in relation to that are on page 25 of our bundle (page 3 of the decision) in sub paragraphs (a) and (d), and also the other paragraphs on that page by way of background. The Tribunal held that:

"...There was no mutuality of obligation between the parties consistent with the relationship of employer and employee."

They found that the Applicant was free to accept or decline work as he chose and that there was no obligation on the Respondents to provide any work at all.

Reliance is placed upon the case of Carmichael v National Power Plc [1998]IRLR 301 but there is a slight but critical difference on the facts between the two cases. In Carmichael there was found to be, on a proper construction of the contract, an element of obligation between the parties arising from the word "on a casual as required basis", and the use of the word "required" dictated a mutual obligation in relation to a reasonable volume of work. However, Mr Carrington has not been able to point to any facts within this case such as to justify departure from the well-established principle that there is no relation of employer and employee where neither has any obligation whatsoever to provide work for the other, either express or capable of being implied from the facts. Accordingly, we are driven to the conclusion that there is no point of law that arises on that issue and we so find and dismiss that argument at this stage. We now set out the matters that may proceed to a full hearing.

The next matter raised is a procedural one and it is said that the Tribunal wrongly exercised its discretion in a way which no reasonable Tribunal, properly exercising its discretion, could have ruled. At the outset of the hearing there was an application for an adjournment by a law student who had agreed a few days before the hearing to represent the Appellant, but asked the Tribunal for more time so that she could prepare. The Applicant had earlier searched for a representative. This application was refused so that the Applicant had to proceed without representation. This, of course, is not unusual in Industrial Tribunals, but the point of law which emerges - at least for argument - is as follows; whether the Tribunal erred in law in declining to adjourn when asked by the law student representative of the Applicant to do so and bearing in mind that the case was listed for seven days.

1. There were applications for discovery and witness orders. They are dealt with at page 9 of the decision in sub-paragraphs (f) and (g). Three documents should have been ordered, says the Appellant, and the refusal to exercise discretion to make such an order was an error of law. Those three documents are as follows:

a) The signing-in book - to indicate that the Applicant was not working alone, as the Respondents alleged, on the date of the alleged incident for which he was disciplined.

b) The Lambeth Inspectorate report which made 30 recommendations on equal opportunities, which contained no specific fact related to the facts of the application before the Tribunal but, it is alleged, would have provided general background for the criticisms made by the Applicant of the Respondents.

c) The two rota sheets relating to the specific periods where it was alleged the Applicant was working alone and when, on their production, he alleges that it would have been shown he was working with others.

2. Witnesses: We do not wish it to be thought that by permitting this to proceed we are expressing, in the context of the totality of this case, the view that there is an arguable point of law, but we do not think it right at this stage to prevent the point being canvassed, as follows:

a) The allegation made to the Tribunal was that the Respondents had received specified complaints from three clients. Their statements were not produced by the Respondents but there was reference to what they had said. The Applicant wished them to attend for cross-examination: this was objected to on the grounds that they were severely disabled, although, one of the Respondents' witnesses gave evidence that they were articulate.

b) Three witnesses, Carl Martin, Nevil Mighty and Simon Davis, whom the Applicant would have wished to call to corroborate his evidence that it was he that made the initial complaint and his being disciplined was a response to his own initiative. They had not been interviewed by the Applicant and, especially so far as Mr Davis is concerned, it is recognised that they and particularly he, would have been hostile witnesses for the Applicant to call. Nonetheless, the Applicant wishes this matter to be canvassed as an error of law.

3. There were certain matters in relation to the conduct of the proceedings as follows:

a) That in so far as the Tribunal was critical of the Applicant's emotional reactions they failed to heed that this was due to the difficulty of his position and the refusal of his earlier application for documents and witnesses and his feeling that he could not proceed.

b) The refusal to permit his partner to sit next to him.

c) The allegation that the Chairman shouted at him on occasion.

4. There is one matter in relation to the conduct of the evidence which the Appellant seeks to pursue. The Applicant was refused permission to cross-examine one of the Respondents' witnesses to establish that he gave preference to homosexuals applying to work with him. That is sought to be set against the permission given to the Respondents' representative to cross-examine the Applicant and challenge him that he was a "voyeur" and a "pervert".

That concludes the matters that we list on the Application of Mr Warrington as available for argument before the EAT. There were two remaining issues raised. The first is that the Applicant was, allegedly, wrongly criticised for being late because he had child care problems. We can see no basis for there being any argument in law that a Tribunal is wrong for criticising someone for being late even though they produce an excuse about child care arrangements. The second matter is that the Applicant was required by the Industrial Tribunal to pay for photocopying which, allegedly, interfered with the proper presentation of his case. It is a difficult situation. There are many who feel that it creates unfairness. But it is in the knowledge of this Tribunal that, generally speaking, the Court service and the Tribunal service all require payment for the provision of photocopying facilities to parties appearing before them and we can see nothing upon which there can be any argument of law in this case.

Accordingly, we direct that not less than 28 days before the hearing the Applicant submit to the Tribunal an annotated list of the matters to which we have just referred and which will be contained in our judgment, giving any references to parts of the Chairman's decision or documents that have since been filed that are referred to under any particular head. Secondly, we direct that skeleton arguments be furnished to the Tribunal by each party not less than 14 days before the hearing.

The final matter about which assistance is sought is in relation to the fact that there is a tape recording that the Chairman made, no doubt out of an abundance of caution, of at least part of these proceedings. Mr Carrington has asked for access to it. We are not going to make any order in respect of that. However, should he or some other legal representative be prepared to visit the Tribunal office on his own, and undertake himself, on his own, to go to the trouble and spend the necessary time in listening to the tape and making such notes as he wishes from it without involving the expenditure of time on the part of Tribunal staff, we are sure that the facility of providing the tape will be made available by the Tribunal. But we do not make any order which would incur the Tribunal in the expenditure of any time or expense in relation to that.

This matter will be listed for one day, category C.

Finally, there was an application for disclosure of the Chairman's Notes. We are not satisfied there is any issue to which our attention has been directed which requires such disclosure and we thus bear in mind the scale of the task that would be presented to a Chairman in this case. Generally speaking - in case there is any feeling of unfairness - nowadays it is only in the most exceptional cases that Chairmen are requested to provide their notes in appeals. The application is refused.