At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
MRS D M PALMER
MRS T A MARSLAND
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
INTERLOCUTORY HEARING
For the Appellant | MR A SILVESTRO (Solicitor) |
For the Respondents | MR S JONES (Of Counsel) (Instructed By) Messrs Mark Gilbert Morse Greys Building 53 Grey Street Newcastle Upon Tyne NE1 6EE |
HIS HONOUR JUDGE PETER CLARK: This is an Appeal by Mr Hodkinson, the Appellant before the London (South) Employment Tribunal, against an Interlocutory Order made by a Chairman on 25th November 1998.
The background is that the Appellant was employed by the Respondent from 20th January 1992 until his dismissal by reason of redundancy effective on 31st July 1997. He held the title of Commercial Director although as a bankrupt, he was not a board member. He presented a complaint of unfair dismissal on about 25th September 1997.
During the course of this hearing Mr Silvestro, on behalf of the Appellant, takes the point that no redundancy payment was made to the Appellant. However, it seems to us that no claim for a redundancy payment presently appears in the form IT.1 and unless and until an application is made to the Employment Tribunal for leave to amend to add such a claim, that is not a matter which we ought to take into consideration in this Appeal. By their Notice of Appearance the Respondent contended that the dismissal by reason of redundancy was fair. In the alternative, they contend that after the dismissal they discovered that the Appellant was guilty of gross misconduct which would have entitled them to dismiss him summarily and fairly on that ground. The alleged misconduct related to his misuse of a motor car and Shell card provided to him during his absence from work through illness. Although not relevant to the fairness of the dismissal that plea, if made out, would go to reducing or extinguishing any financial remedy available to the Appellant should he succeed in his claim of unfair dismissal.
By what used to be known as a Writ issued out of the Birmingham District Registry on 22nd August 1997, the Respondent claimed the return of certain items including a car, mobile telephone and fax machine which they claim the Appellant had wrongfully detained. By a Defence and Counterclaim in those proceedings the Appellant raised a claim of wrongful dismissal, based on an alleged 3-year rolling contract of service, which was quantified at £119,024.
By their Reply and Defence to Counterclaim served on 9th October 1997 the Respondent denied that the Appellant was entitled to 3 years' notice. Further and alternatively, it was contended that the Respondent was in any event entitled to summarily dismiss the Appellant at common law by reason of the same misconduct alleged in the Employment Tribunal proceedings under the well-known principle in Boston Deep Sea Fishing -v- Ansell (1888) 39 Chancery Division 339.
On 18th December 1997 these Tribunal proceedings came before a Chairman, Mr D N Milton, sitting at London (South) for a Directions' Hearing. The Respondent had applied for a stay pending determination of the High Court proceedings between the parties. That Chairman ordered that the hearing be adjourned generally with liberty to restore. In his reasons promulgated on 7th January 1998, he expressed concern that the Appellant's Trustee in Bankruptcy had apparently not been informed of the litigation. He expressed the tentative view that in due course, if the High Court proceedings remained alive, a chairman may stay the Employment Tribunal proceedings.
Nothing was heard from the parties and on 16th July 1998 the Employment Tribunal enquired as to whether the High Court proceedings were completed. Further correspondence ensued, in the course of which the Appellant's solicitors applied for these proceedings to be transferred to the Southampton Employment Tribunal on grounds of the Appellant's ill health. His doctor did not consider it advisable for him to travel to Croydon for a hearing.
The Respondent's solicitors, by letter of 16th September 1998, repeated their application for a stay pending the outcome of the High Court proceedings, which was still in train, and raised no objection to the transfer to Southampton. We note that the High Court proceedings were transferred from Birmingham to the Southampton District Registry on 26th September 1997.
On 11th November 1998 a Chairman directed that the Tribunal proceedings remain at London (South) and that they should not be stayed. The case was to be listed for a 2-day hearing. That Order pleased neither side. The Appellant's solicitors indicated that they would appeal against the refusal to transfer to the case to Southampton; the Respondent's solicitors asked the Tribunal to reconsider the question of a stay. Pausing there, both parties appear to have mistakenly believed that the order of 11th November was a decision. It was not. It was an interlocutory order other than a decision. Accordingly, it was not susceptible to review (as the Respondent sought) nor is there any duty under the Employment Tribunal Rules of Procedure for the Chairman to give extended reasons for his Order for the purposes of an appeal, as the Appellant's solicitors sought.
As a result of those further representations the Chairman reconsidered the file. He was entitled to reconsider his earlier order. He directed that in view of the fact that the High Court claim was progressing, the hearing of the Tribunal proceedings then fixed for 27th and 28th January 1999, be postponed and directed that a stay be granted until 1st April when the matter would be reviewed. No application has been made by either party for that review to take place. In view of the stay he made no order on the transfer request, which he said could be renewed in due course. Those directions were contained in a letter dated 25th November 1998 and it is against the orders made on that occasion that this appeal is brought.
In the appeal Mr Silvestro submits that the Chairman misdirected himself in law in failing to take into account two material factors when granting the stay of proceedings. First, that Employment Tribunal complaints should be heard speedily and secondly, he questions whether there was in fact a duplication of issues between the two sets of proceedings as the Chairman appeared to think. Alternatively, he submitted that the Chairman's order granting a stay was perverse.
As to the question of a speedy hearing, we bear in mind the Court of Appeal's decision in Carter -v- Credit Change Ltd [1979] ICR 908, overruling the decision of the Employment Appeal Tribunal in that case (Mr Justice Slynn presiding) and restoring an Industrial Tribunal Chairman's order staying the Tribunal proceedings pending the outcome of High Court proceedings between the same parties, on the grounds that the Employment Appeal Tribunal had erred in elevating the need for a speedy resolution of the Tribunal proceedings to a principle of law which allowed the Employment Appeal Tribunal to interfere with the Chairman's exercise of discretion.
Further, we note that in this case the conduct of High Court proceedings lies with the Applicant, Mr Hodkinson, as effectively Claimant in the Counterclaim. Any delay in those proceedings cannot be laid at the door of the Respondent. As to the overlap of issues, we are satisfied that there are here identical factual questions arising in the Respondent's case on remedies before the Employment Tribunal and in their alternative defence to the wrongful dismissal claim in the High Court. Thus, were the Tribunal hearing to take place first, an issue of estoppel may arise in relation to the same factual issues raised in the High Court proceedings. Green -v- Hampshire County Council [1979] ICR 861. That may embarrass the High Court hearing the wrongful dismissal claim. First Castle Electronics Ltd -v- West [1989] ICR 72.
We should add that we see nothing in the recent decision of Mr Justice Laddie in Chorion PLC -v- Lane (Times Law Reports 7th April 1999), to which Mr Silvestro has referred us, which is in any way inconsistent with the earlier cases and principles there contained which we have mentioned.
In these circumstances, we accept Mr Jones' submission that there are no grounds in law for us to interfere with the Chairman's grant of a stay in this case. We further take the view that the Chairman, having ordered the stay, necessarily made no order on 25th November 1998 in relation to Mr Silvestro's renewed application for a transfer of the Employment Tribunal proceedings to Southampton. There is accordingly, no order which can be appealed arising out of the 25th November letter. Having said that, we repeat that the transfer is not opposed by the Respondent and there appear to be sound medical grounds for such transfer. We hope that those observations will be borne in mind by any future Chairman considering the transfer application after the present stay is lifted.
In all the circumstances, this Appeal is dismissed.