United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	APPELLANT IN PERSON


 


JUDGE PETER CLARK: This is the third appeal brought by Mr Devine in this case. He was employed by the Respondent company as a sales representative from 18^th September 1991 until his dismissal effective on 5^th February 1996. On 29^th April 1996 he presented an Originating Application to the Employment Tribunal claiming unfair dismissal by reason of redundancy, breach of contract and made a reference under what is now Section 11 of the Employment Rights Act 1996 in relation to a complaint that he had not received itemised pay statements as required by Section 8 of the Act. By an amendment dated 17^th October 1996 he added a claim that he was dismissed for Health and Safety reasons. In due course, an alternative claim that he was dismissed for asserting a statutory right under Section 104 of the Act was also added.

1. His first appeal (EAT/1170/96) was heard by the President, Mr Justice Morison and members on 29^th October 1996. It concerned his complaint that the solicitors acting for the Respondent had a conflict of interest and should not be acting. No order was made in that appeal.
2. His second appeal (EAT/1369/96) came before a division over which I presided on 17^th December 1996. He then appealed against an Order made by a Chairman sitting at Manchester, Miss A F W Woolley, refusing to order discovery and inspection of certain itemised pay statements relied on by the Respondent. That appeal succeeded for the reasons given in my judgment delivered on that day. An Order for discovery and inspection was made.
3. When the matter came before an Employment Tribunal sitting at Manchester for the substantive hearing on 13^th January 1997, Miss Woolley was again in the Chair, sitting with the same members with whom she had sat at an earlier hearing held on 31^st October 1996. The hearing lasted for 2 days. By a reserved decision dated 17^th February 1997 the Tribunal made the following findings.

i. There were no itemised pay statements provided to the Appellant. The Respondent's managing director, Mr Gray had misled the Employment Tribunal in earlier saying that such documents existed. In that respect, the Tribunal made a declaration that the Respondent had failed to provide itemised pay statements to the Appellant contrary to Section 8 of the Act. They further awarded him £130.80 in respect of unauthorised deductions from pay over the 13 week period prior to the presentation of the Originating Application as provided for in Section 12(4) of the Act.

ii. The Respondent was in breach of contract in failing to make full payment in lieu of notice to the Appellant. Damages for that breach were assessed at £279.60.

iii. The Tribunal accepted the reason for dismissal advanced by the Respondent, namely redundancy and rejected the Health and Safety reason alternatively asserting a statutory right contended for by the Appellant.

iv. They found that the dismissal for redundancy was unfair due to lack of prior consultation. However, they concluded, applying the principles in Polkey -v- A E Dayton Services Ltd [1988] ICR 142, that had proper consultation taken place there was no chance of the Appellant retaining his employment. He had already received the equivalent of a redundancy payment/basic award. No additional compensation for unfair dismissal was awarded.

4. It is against that substantive decision that this third Appeal (EAT/461/97) is brought by a Notice dated 26^th March 1997. This is a preliminary hearing held to determine whether the appeal raises any arguable point or points of law to go forward to a full inter-partes appeal hearing.
5. The grounds of appeal are principally complaints of bias on the part of the Employment Tribunal or at any rate, the appearance of bias (See Peter Simper & Co Ltd -v- Cooke [1986] IRLR 19). Further, that the decision was perverse in the legal sense. In support of those allegations of bias, Mr Devine lodged an affidavit sworn on 17^th February 1999 to which the Chairman, Miss Woolley has responded by a letter dated 12^th April 1999..
6. The particular point which concerns us is this. Mr Devine submits that having been reversed by this Employment Appeal Tribunal on 17^th December 1996, the Chairman ought not to have sat on the substantive hearing in February 1997. Further, he contends that at the hearing held on 31^st October 1996 it was made clear to the parties by the Chairman that a differently constituted Tribunal would hear the substantive case. The Chairman accepts, in her letter to the Employment Appeal Tribunal of 12^th April 1999, that at the hearing on 31^st October 1996, she told the parties, in answer to a question from the Respondent's Counsel, that there would be a different panel hearing the case at the full hearing.
7. She goes on to explain that the reason for that was so that there would be no difficulty in listing the case for the convenience of the existing Tribunal members - the case not being part-heard. It appears that the Listing Officer misunderstood that direction and believed that it was necessary to arrange the substantive hearing before the same panel. That is why the same Tribunal was convened on 13^th January 1997. It was not possible to rearrange the constitution of the panel on that day administratively. That of course is no answer. If the Tribunal or any member of the Tribunal ought not, in the interests of natural justice, to have sat on the substantive hearing, then arrangements should have been made to that effect.
8. The Appellant submits that having been reversed by the Appeal Tribunal the Chairman, at any rate, had an animus against him and that this was displayed by behaviour during the course of the 2-day hearing in January 1997. We think there are two difficulties with that submission. The first is that no objection was taken by either party to the Tribunal being convened in the way it was on 13^th January 1997. To that, Mr Devine says, on the 31^st October 1996, the Chairman made it clear that there would be no further adjournments and in any event, he acts in person and was unaware of the option of applying for an adjournment. But the second difficulty is that we are not satisfied that because a Tribunal Chairman has been reversed on Appeal, that necessarily precludes him or her from sitting in the same case on a later occasion. We think the professionalism of all judicial officers requires that they accept reversals by the Appeal Courts as a matter of course and without rancour.
9. Turning to the complaints made in the Affidavit about the Chairman's conduct during the course of the substantive hearing, we have considered what is said in Mr Devine's affidavit and the comments made by the Chairman. In short, our conclusion is that there is not sufficient here to give the impression to an objective observer of bias or the appearance of bias on the part of the Tribunal Chairman.
10. Turning to the case on perversity, it is a high hurdle for Appellants to cross. It must be shown that no reasonable Tribunal, reasonably directing itself in law could come to the conclusion in this case, that the principal reason for dismissal was redundancy rather than one of the two inadmissible reasons advanced by the Appellant. Mr Devine, understandably, submits that having found that Mr Grey had misled the Tribunal in relation to a question of itemised pay statements, it is wholly incomprehensible that his evidence as to the true reason for dismissal was accepted by the Tribunal. We understand that view but it does not, in our judgment, follow as a matter of logic.
11. The Tribunal, at paragraph 9 of their reasons for the substantive decision, comment adversely on both Mr Grey and to some extent, although not in the same way, Mr Devine. Ultimately, they had to decide whether or not Mr Grey was telling the truth in relation to the reason which he put forward for the dismissal. They found that he was. We are not a Tribunal of fact. In our judgment, there are no grounds in law for interfering with that critical finding. It follows that although we accept Mr Devine is left with a burning feeling of injustice, we must look at this case objectively, bearing in mind that our jurisdiction is limited to correcting errors of law. In short, we can find no error of law raised in this appeal and for that reason, the appeal must be dismissed.