United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR I WRIGHT (of Counsel) Instructed by: Mr J Sidnick Messrs Williams Heath & Co Solicitors 16 Sale Place Sussex Gardens London W2 1PX
For the Respondent	MISS VAUGHAN-NEIL (of Counsel) Instructed by: Mr M Collins Messrs Lattey & Dawe Solicitors 21 Liverpool Street London EC2M 7RD


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against the refusal of an Employment Tribunal to stay its proceedings pending the determination of other proceedings commenced in the County Court.

The position is as follows. The applicant, Mr Dand, was employed by Charles Reynolds & Associates Ltd until 26th June 1998 when he resigned. He presented a complaint at the end of the three month period provided by the tribunal rules for doing so on 25th September 1998, complaining that he had been unfairly dismissed, that unlawful deductions had been made from his wages and that he was due monies under his contract. The IT1 was a relatively full document setting out the details of his complaint indicating that his employers were making serious allegations against him, and it was as a result of those allegations, which he maintains are false, that he says entitled him to leave his employment.

The employers put in their defence in their IT3 on 20th October 1998, effectively asserting that they believed and were intending to prove, that the employee had himself been guilty of serious misconduct and denying that they were in breach of contract. On 7th November 1998 the employers commenced proceedings in the local County Court complaining that the employee had been guilty of serious breaches of contract which had damaged them.

On 12th February 1999 the employee put in a defence and counter-claim to those proceedings; alleging, in a number of instances, that the allegation made in the points of claim was wholly unparticularised, embarrassing and was, in any event, denied. By way of counter-claim the employee asserted that the defendant, that is the applicant before the Employment Tribunal, was constructively dismissed as pleaded hereafter, and not surprisingly, the counter-claim that then follows substantially reproduces what had been said in the IT1.

The case was carefully prepared for the hearing before the Employment Tribunal with witness statements being exchanged. The hearing was set to commence on 8th April 1999 and on the basis of estimates given and the tribunal's own consideration, a two day hearing was fixed starting on that date. The day before, that is 7th April 1999, there was a report in The Times newspaper of a case where a judge of the High Court had indicated that it might be appropriate to stay tribunal proceedings pending the determination of matters in the High Court. I am told, and I accept, that the decision in that case encouraged, to put it no higher, the application which was made the day before the Employment Tribunal hearing that the case should be stayed pending the determination of the County Court proceedings. The initial response of the advisers for the applicant was surprise that such a late application was being made, given that all the preparation for the hearing had by then taken place. But indicating that if the employers would meet all of the applicant's costs thrown away by the late application, then they would be minded to agree to the request for a stay. That initial reaction was overtaken subsequently, after advice from Counsel. Any agreement, if such had been reached, was revoked. Accordingly, on first day of the hearing before the Employment Tribunal on 8th April 1998, Counsel made an application asking for a stay which was opposed on the employee's behalf.

The decision of the tribunal on the application for a stay is set out in paragraphs 11 and 12 of their decision:

"11. We have seen the Particulars of Claim and the Defence and Counterclaim filed in the County Court Proceedings. The Originating Application to the Tribunal was issued on 25 September 1998 and the Respondent's Notice of Appearance is dated 20 October. Although the Particulars of Claim are not dated, it is acknowledged that the County Court proceedings were issued some time later. The Defence and Counterclaim is signed and dated as being served on 12 February 1999. In our view, the Particulars of Claim are very sketch given the size of the Respondent's monetary claim for damages in excess of £84,000 and we are concerned that the Respondent may have commenced these proceedings at least partly as a way of delaying the Applicant's claim in the Employment Tribunal. The Respondent relied heavily on the duplication of issues in support of the application for a stay. In our view the strength of this argument is considerably reduced by the fact that they waited until yesterday afternoon to raise these concerns. Mr Wright acknowledged that the application could have been made at any time since 12 February when the Defence and Counterclaim was served, yet almost two months went by before the Respondent's solicitors took any action. We understand that there has been some difficulty with regard to exchanging Witness Statements and that a direction made by a Chairman of the Tribunal on 29 March was needed to achieve this. We note that it was only after the exchange of Witness Statements had been made that the Respondent decided to apply for a stay.

12. We have considered the arguments very carefully. We accept that there is some duplication between the issues in the two cases but we do not accept that the issues are as complex as the Respondent asserts. We are satisfied that these are matters that can be competently dealt with by the Employment Tribunal particularly with the assistance of Counsel for each of the parties. Witness Statements have been exchanged and the case is ready for hearing. The Tribunal has exclusive jurisdiction in the unfair dismissal claim, and we are satisfied that this should not be delayed. We also not that there is no real dispute as to the amount claimed by the Applicant, and that any dispute is with regard to his entitlement. It would not be in the interests of justice to grant this application."

The reasons can be summarised in this way. Firstly, the tribunal accepted that there was some duplication between the issues in the two cases; but secondly rejected the employer's submission that the issues are complex and more suitable for determination in a formal court. The tribunal noted that a number of the allegations in the particulars of claim were very sketchy and given the size of the monetary claim for damages; they expressed a concern that the employer's may have commenced the County Court proceedings "at least partly as a way delaying the Applicant's claim in the Employment Tribunal." The tribunal noted that there had been considerable delay in making the application for a stay, which, in their view, reduced the strength of the argument that there was much duplication between the issues into sets of proceedings; they noted that it was only after the exchange of witness statements that an application for a stay had been made. The tribunal said this:

"12. ... The Tribunal has exclusive jurisdiction in the unfair dismissal claim, and we are satisfied that this should not be delayed. We also not that there is no real dispute as to the amount claimed by the Applicant, and that any dispute is with regard to his entitlement. it would not be in the interests of justice to grant this application."

The employers have appealed. The essence of their appeal may be summarised in this way. Firstly, Counsel drew attention to the fact that the decision in this case was taken by the whole tribunal rather than by the Chairman alone. He made reference to Rule 13(7) and made the point that if we were of the view that the tribunal had acted improperly in the sense that this should have been a decision taken by the Chairman alone, it would enable us to exercise our own discretion in this matter, rather than approaching the matter as an appellate tribunal.

We reject that submission on the basis that Rule 13(7) entitles a Chairman to sit on his own to determine the postponement or adjournment of any hearing, but Rule 13(9) specifically provides that:

"Any act required or authorised by ... 13(7) ... be done by a chairman may be done by a tribunal ..."

There is nothing, we think, in that point.

But his substantive point was this. He said that the tribunal had to carry out a balancing exercise which they had purportedly done, but in carrying out that exercise, they had erred. The tribunal had (a) understated the overlap between the two sets of proceedings; (b) underestimated the complexity of the issues; and (c) had overstated the significance or impact of the delay in making the application. Therefore, the tribunal had erred in law.

Firstly, it seems to us that there is no merit in the contention that the way the tribunal have exercised their discretion could be described as either perverse or as being founded on any misdirection of law. It is debatable as to the extent to which there is in fact a duplication between the issues in the two cases. The tribunal said "there is some duplication". Counsel had submitted to the tribunal that there was "substantial overlap". It seems to us that he may be right that one could describe the overlap as being substantial, but that does not seem to us to alter the tenor of the decision of the Employment Tribunal. We do not accept that they failed to recognise the fact that there was an overlap between the cases, which could be described as either "some" or "substantial".

Secondly, in relation to the complexity, it seems to us, with our knowledge of the very complex issues with which Employment Tribunals are regularly called upon to deal, that there is nothing in this case which makes it possible to say that there is something special or particularly strange or complex about the issues which they will have to determine. Their jurisdiction has been increased to include claims for wrongful dismissal where, regularly, allegations of a serious nature, sometimes involving financial matters, have to be investigated by them and this case seems to us to be no exception. We do not think that Employment Tribunals are constitutionally likely to approach the complex issues of fact any less carefully that any of the courts, be it County Court or High Court; nor, are their procedures such as to make their decision on these matters less reliable than if the case had been determined in the courts.

Thirdly, it seems to us that they have not overstated the delay. What they were saying, as we understand it, is that if on receipt of the defence and counterclaim it was genuinely thought by the employers to be embarrassing to have the trial before the Employment Tribunal as opposed to the County Court, the employers would have been saying so much earlier than they did. The fact that they only waited until the day before the date fixed for the hearing entitled the tribunal, in our judgment, to make the comment that they did about the delay. There are obviously advantages and disadvantages in taking one set of proceedings before the other. That was the balancing exercise which the Employment Tribunal had to carry out in this case, having regard to the assistance to be derived from the case which was reported in The Times the day before the hearing and the passages in Harvey on employment law which were drawn to the tribunal's attention and to which they would have had regard in their decision. That was a balancing exercise for them. We would need to be satisfied that they had erred in law. We have to say that we are not so satisfied in this case. On the contrary, we agree with their decision. We think it was the right one in all the circumstances.

Accordingly, the appeal is dismissed.

MR JUSTICE MORISON (PRESIDENT): We have to say with no disrespect to Mr Wright's admirable and succinct submissions, we do not consider that the appeal in this case had any reasonable prospect of success, because it is clear that this was a case where the tribunal had exercised its discretion and had plainly taken into account all the matters which it should have taken into account and it was largely a question of the weighing of the balance and the way that the tribunal had weighed it. We are not satisfied that it was ever properly arguable that the tribunal had erred in law in carrying out that exercise. As I say, without in anyway impugning the integrity or, indeed, the ability with which the arguments for the appellant were put before us.

We therefore are of the view that this is a case where an order for costs which has been sought is appropriate. We have power to make such orders under our Rules. Rule 34(1) provides:

"Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there had been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order ..."

We are of the view that this appeal was an unnecessary step, that it was unreasonable to have brought it. Where we make an order under 34(2):

"...the Appeal Tribunal may either assess the sum to be paid or may direct that it be assessed by the taxing officer, from whose decision an appeal shall lie to a judge."

We are of the view that it would be correct in this case for us to assess the costs and that is what we propose to do. We are prepared to listen to Counsel as to how much she says we should assess costs to be, or we are happy to tell you what I think the figure should be.

We assess the costs at £500. In arriving at that figure I have regard to a number of circumstances including the amount which is being charged to the respondent to this appeal, the applicant, by his legal advisers. We want to make it perfectly plain that the figure which we have arrived at is not a judgment which is made by us on the propriety of the figure for the costs which the applicant/respondent is required to pay, because the exercise we are engaged in is to determine how of those costs should be born by the other party, having regard to the fact that this was an unnecessary and unreasonable appeal. In arriving at that conclusion, we also have regard to the general practice and policy of this court that costs are not awarded and it seems to me undesirable as a matter of policy that the Employment Appeal Tribunal should, when it makes an order for costs, make an order which could be regarded by some people as a potential deterrent to coming here to air their grievances about what has happened before an Employment Tribunal, even though many appeals that come here do not raise an arguable point of law. The figure of £500 therefore bears little relationship to the figure for costs which Mr Dand may well have to pay his lawyers. Whether he does or not is not an issue with which we are concerned.