United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondent	MS TESS GILL (Of Counsel) Instructed by Owen White & Co Senate House 62-70 Bath Road Slough SL1 3SR


 


JUDGE ALTMAN

PRELIMINARY RULING

1. At the outset of this appeal, which is listed for full hearing, the Appellant has sought leave to raise 3 matters notwithstanding the fact that they were not fully, or at all in some cases, canvassed in his original notice of appeal and notwithstanding the fact that at a preliminary hearing on 27 May 2000 the Employment Tribunal directed that the appeal was allowed to proceed

"to a full hearing of the Employment Appeal Tribunal solely on whether the Chairman erred in law and deciding to sit alone to consider the question of jurisdiction as a preliminary matter although it involves decisions about issue of fact."

2. There are 3 matters raised by the Appellant. The first is that the Respondent has behaved dishonourably and frivolously and should be debarred from taking any further part in the proceedings. In support of this a number of matters are raised. First of all the Appellant claims that when he was being transferred to the United States of America a eulogistic reference was provided by his employers to the Immigration Authorities to facilitate his entry to work in the United States, whereas a statement prepared by a Mrs Bostick for the current proceedings suggests that there was no job for him in the United States. And he says that there is a contradiction there between the two sets of information provided, first, for unfair dismissal proceedings and then for the current ones which show such bad faith on the part of the Respondents in the way in which they have prepared for the court proceedings that they should be debarred from taking further part in it.
3. At this stage we do not consider that that amounts to such a matter. Secondly the Appellant complained of the late delivery of the skeleton argument. We have not sought an explanation for that, but it is a procedural slip which is often made by parties without its illustrating bad faith and on our finding it does not illustrate bad faith in this case. Thirdly the Appellant is concerned that the way in which the case was treated was as a preliminary hearing, whereas he arrived at the Tribunal all ready to deal with everything. He knew that wrapped up in the main hearing would be an issue about jurisdiction, but he had not extracted it in such a way as to deal with it as a preliminary hearing. He had been advised to prepare for that issue and we understand he did not object at the time.
4. We cannot see that any of those matters goes to demonstrate dishonourable or frivolous behaviour in a way that the rules envisage. If at all, there may be a conflict on the evidence which would if this case goes for a full hearing provide very interesting material for cross- examination of the Respondents' witnesses, but at this stage there is simply a witness statement which appears on the face of it and without our knowing what the explanation may be, to contradict something that was said before. That does not give rise to grounds for debarring the Respondents. We refuse the application for leave to raise that matter, first of all because it is probably not open in the light of the direction on the preliminary hearing for us to give leave and secondly, because it has no reasonable prospect of success.
5. The second matter that was raised was really a head of damage in the event of a claim for wrongful dismissal succeeding; a new head which was as a result of the alleged withdrawal by the Respondents in some form or rather from the Appellant's funds in the United States. That simply goes to the quantum of the claim. It does not seem to us to affect the issues of law and if this matter goes back to the Tribunal either this Tribunal, or the Employment Tribunal that hears the case can direct what issues are to be heard including that one. But that could be dealt with at that stage if it arose.
6. The third matter is not quite so straightforward. It goes to the substantive issue which the Chairman considered. The preliminary hearing before the Employment Tribunal gave the decision to which I referred and today's hearing is set to deal with that issue and the Respondents are prepared only for that issue today and accordingly we are proposing to deal only with the question of whether the Chairman erred in law in the way in which he determined to sit alone.
7. However, it is right that we should note that in dealing with the issue of jurisdiction as an issue for appeal the Employment Appeal Tribunal do not appear to have given a judgment on the dismissal of that matter. We were referred to case C-412/98 Group Josi Reinsurance Company SA v Universal General Insurance Co (UGIC) 13 July 2000. It also appears that the decision in the European Court of Justice post-dated the hearing before the Employment Appeal Tribunal and whilst it does not invent new law the Appellant considers he has an argument that it is sufficiently important a clarification of the law as to give rise to a requirement in the interest of justice that the issue of jurisdiction should be revisited on appeal either by review of the preliminary hearing of by appeal to the Court of Appeal.
8. What we propose to do is to deal with the sole issue before us today without pretending, or without claiming, necessarily to be finally disposing of all matters as well. If after today's hearing (depending on how he goes) the Appellant wishes either to seek a review of the decision of the Employment Appeal Tribunal or to appeal to the Court of Appeal, that would be a matter entirely for him, and he could take his own or others' advice upon it. Nothing that we have said so far should be regarded as an indication one way or the other as to the correctness of that course or what the outcome should be. But it is simply that we make a procedural direction that we will deal today with the question of the Chairman sitting alone and nothing more.

JUDGMENT

9. This is an appeal from the decision of the Employment Tribunal Chairman that the Appellant's claim then pending before the Employment Tribunal for breach of contract should be heard by a Chairman sitting alone. Arising out of his employment with the Respondents the Appellant brought proceedings in February 1999 alleging both constructive dismissal and breach of contract. This concerned his employment between July 1994 and January 1999 with the Respondents. The first part of that period was a period in which the Appellant was employed by the Respondents in this country. From 1 January 1998 for 1 year he was employed by them in United States of America.
10. The issue arose in relation to both claims as to whether or not whatever the merits of the matter the Appellant was able to provide sufficient connection with the scope of the Tribunals in this country for his claim to be adjudicated upon in the Employment Tribunal in this country.
11. As we understand his case the Appellant conceded that his primary contract of employment, once he had been granted a visa, was an American contract of employment although there was some uncertainty as to whether or not it was ever reduced to writing. There was nonetheless plenty of evidence, as Mr Evans put it, from which the terms could be inferred. But it was also his case that part of the arrangement by which he went to America constituted in itself a contract between him and Respondents, connected with his employment, to provide him with something of a cushion against the insecurity which he was prepared to undertake. That cushion was an agreement that in the event of his return to the UK the Respondents would look favourably on providing him with an appropriate post. It is the Appellant's case that upon his employment in America coming to an end the Respondents were in breach of that collateral contract by not "looking favourably", but by doing their best to demonstrate that they were looking unfavourably on the Appellant by reason of an unfavourable e-mail sent by one of the directors around the company.
12. The claim for constructive dismissal was first considered by an Employment Tribunal and under Section 196 of the Employment Rights Act 1996 the Employment Tribunal considered that they had no jurisdiction to adjudicate upon a claim for unfair dismissal because of the employment being in the United States of America. An appeal from that decision was dismissed and nothing further, so far as we are concerned, falls to be decided upon that.
13. There was then a claim for breach of contract. That was determined by a Chairman sitting alone on 29 September and 27 October 1999. The case was listed for hearing. The parties arrived with their witnesses but both parties were aware that the Respondents challenged the jurisdiction of the Tribunal for analogous reasons to the claim for unfair dismissal; the Respondents argued that the contract of employment was governed by American law and that its terms provided for compulsory arbitration.
14. In due course, the Appellant appealed and the matter came on for preliminary hearing before the Employment Appeal Tribunal and the order of the Employment Appeal Tribunal was expressed as follows:

"The appeal be allowed to proceed to a full hearing of the Employment Appeal Tribunal solely on whether the Chairman erred in law in deciding to sit alone to consider the question of jurisdiction as a preliminary matter although it involves decisions about issue of fact."

15. It appears that the decision from which the appeal lies was a decision that was taken, before the hearing, by another Chairman as a discrete interlocutory matter and to the effect that the whole of the Appellant's claim in contract would be considered by a Chairman sitting alone. It must follow, it seems to us, that once that decision was reached and no further point having being taken upon it, when the Tribunal came to the main hearing and the then Chairman, Mr Hardwick decided to take the preliminary point first, he was making no further decision as to whether or not he should sit alone.
16. Accordingly, it seems to us that in approaching the narrow issue left for us by the Employment Appeal Tribunal we must look to the decision made earlier by Mr Hollow that the Chairman would sit alone. And we must construe the reference in the order of the Employment Appeal Tribunal, to which I referred, of the question of jurisdiction as a preliminary matter simply as a statement of what in fact happened consequent upon the decision of Mr Hollow as things turned out, and not in itself giving rise to any further issue or consideration.
17. We are enormously indebted to a very comprehensive and careful skeleton argument prepared by the Applicant and a comparable one prepared on behalf of the Respondents, much of which goes to issues as to whether or not it was appropriate to take the question of jurisdiction as a preliminary matter and furthermore as to whether or not it was appropriate in any event for the Chairman to deal with that preliminary issue because of the factual matters that were raised. We however, have felt constrained to look at the single decision referred to by the Employment Appeal Tribunal.
18. The decision appears to have arisen in the following way. On12 July 1999, the Appellant wrote to the Regional Secretary of the Employment Tribunal at Reading in the following terms:

"Would a Chairman kindly review my request, made some time ago, that a full panel of three members hear the case. The reason for my request is, the case may turn on the facts rather than the law, and a three-person panel is, I submit, more appropriate than a Chairman sitting alone."

There is reference in there, because of the use of the word 'review', to some preceding discussions but we have been told of none by the Appellant and in any event it was a clear request that required consideration. The body of that letter then goes on to point to a number of issues that were relevant. First of all, is the juxtaposition of the fact that it appears that the Appellant's employment was terminated in America on the ground that the project management was no longer going to be carried out there, with a press release, a matter of months after the employment of the Appellant came to an end, indicating with some excitement what was effectively exactly the opposite. The relationship therefore between the American and the English contract was something that was flagged up and indeed the Appellant asked for a witness order in relation to this.

19. Of course, the Appellant was approaching the whole contract claim at that time. At about that time the Respondents' solicitors sought an adjournment of the hearing and in granting that the Regional Secretary also sent a copy of the letter to which I referred to the Respondents' solicitors inviting their observations as to the composition of the Tribunal. On 19 July 1999 they replied as follows:

"The Respondent has no objection to being dealt with by the Chairman alone, particularly as the first point of issue is one of jurisdiction, which is a matter of legal submission rather than assessment of evidence."

20. Whether or not that was an accurate description of the issues we know not. We have some sympathy with the submissions on behalf of the Appellant that it really is quite impossible to separate off legal submissions from an assessment of evidence. Whilst issues of jurisdiction raised points of law it is comparatively easy to state what the law is that concerned a particular point. The exercise of judgment is to then apply the facts, whether they be in dispute or agreed, in writing or given orally, to those principles of law. Whether that is best done by the Chairman sitting alone or by a full Tribunal is a matter about which no doubt in theory there can be endless debate. But we understand from a letter written by Mr Hardwick, the final Chairman, which is undated but was received at the Employment Appeal Tribunal on 30 May 2000, that when the letter from the Respondent setting out their position was received on 23 July 1999 Mr Hollow made his decision:

"Breach of Contract to be listed before a Chairman sitting alone".

21. We have also seen the response of Mr Hardwick to the Appellant's affidavit in this matter and having set out the correspondence received by Mr Hollow in his letter of 27 January Mr Hardwick said this:

"Having considered the matter, and with the benefit of his background knowledge of the issues gleaned from the hearing on 4 June, Mr Hollow directed on 23 July that the breach of contract claim be listed before a Chairman sitting alone."

22. We echo the submissions of Mr Evans that it would have been better if, in response to the request from the Employment Appeal Tribunal, Mr Hollow himself had dealt with what was in his mind in making the decision he did. In order to deal with this matter, as we think fairly on the material before us, we have ignored the description by Mr Hardwick of the basis of Mr Hollow's decision as set out in his letter, and have proceeded on the basis that we do not know specifically where Mr Hollow obtained his information in order to reach his decision. Certainly we do not assume that he got it from an earlier hearing and we deal with the case on the other information before us.
23. What legal provisions therefore governed the decision that Mr Hollow made? The starting point is the Employment Tribunals Act 1996.which enables a Minister to give jurisdiction to the Employment Tribunal to deal with a breach of contract claim such as that brought by the Appellant. Whist it is true that the implementation of that is a comparatively recent provision, the power to introduce that jurisdiction has been part of the statutory background to Employment and Industrial Tribunals almost from their outset. Its implementation was no doubt a difficult matter.
24. In Section 4 of the Act the composition of a Tribunal is dealt with. The general position is set out in Section 1 and provides for proceedings before an Employment Tribunal to be dealt with by the Chairman and 2 other members. Section 4(ii) however provides an affirmative provision that certain proceedings will be heard by a Chairman sitting alone; included in those are proceedings under Section 3 of the Act, or in respect of which jurisdiction is conferred by Section 3, that being the claim of the Appellant in this case.
25. There was then in sub-section 5 the following provision:

"Proceedings specified in sub section (3) should be heard in accordance with sub section (1) if a person who, in accordance with regulations made under section 1(1), may be the Chairman of an Employment Tribunal, having regard to:

a. whether there is a likelihood of a dispute arising on the facts which makes it desirable for the proceedings to be heard in accordance with sub section (1),

b. whether there is a likelihood if an issue of law arising which will make it desirable for the proceedings to be heard in accordance with sub section (2)

c. any views of any of the parties …

d. whether there are the proceedings which might be heard concurrently …

decides at any stage of the proceedings that the proceedings have to be heard in accordance with sub section (1)"

26. It follows therefore that whilst the starting point is a requirement for breach of contract cases to be heard by a Chairman sitting alone, a full Tribunal shall hear the case if a Chairman decides that they should, having regard to certain matters. The machinery by which a Tribunal operates is generally covered by the Employment Proceedings (Constitution and Rules of Procedure) Regulations (1993) but those regulations are silent as to any specific machinery for the way in which the Chairman is to reach the decision referred to in the sub section that I have quoted.
27. There is plenty of provision in those rules, in relation to other matters, for reasons to be given, for parties to be given the opportunity to make representations and for oral argument to be presented. Indeed, in the very preliminary hearing which took place when there was a decision by Mr Hardwick under rule 6 of Schedule 1 of the Regulations, the question may be said to be have arisen as to whether or not that was not a preliminary issue, and if so, whether it was a preliminary hearing, and if so, whether sufficient opportunity had been given to submit representations and to advance oral argument. Indeed it is right to say that there was plenty of oral argument on the substance of the matters before Mr Hardwick and the general acceptance, if only tacitly, of his suggestion that there should be a preliminary issue of jurisdiction but no identification of any oral representation. Had the Appellant been able to argue about the exercise of discretion at that preliminary hearing he would have said that he realises, perhaps after the event, that he felt wrong-footed by the way in which those proceedings unfolded for the spotlight on jurisdiction was something for which he was not prepared. He was prepared to deal with it along with the all the rest of the evidence. In other words, he was hoping that all the witnesses would give evidence and that in closing submissions he could address the jurisdiction and other points. We do not underestimate the difficulties which litigants in person, even those that are articulate and competent as Mr Evans is, have in adjusting to what is for those who are more used to it, simple procedures for the operation of the Tribunal.
28. However, that is to be contrasted to the question before us, which involves the principles that apply when a Chairman makes the decision that there should be a full Tribunal rather than a Chairman sitting alone. The Chairman in this case had beforehand the request of the Appellant that factual matters were involved which gave rise to the desirability of a full Tribunal and the response of the Respondents which essentially amounted to a statement, in this context, that they did not object to that application whilst referring to the possibility of there being reasons for sitting alone.
29. Mr Hollow had before him the documents supporting the originating application and the question that Mr Hollow no doubt had to ask himself is whether there was a likelihood of a dispute arising on the facts which made it desirable for the proceedings to be heard by a full Tribunal taking account of the views of the Appellant in particular that that is what he wanted. The very fact that the decision was made by the Chairman upon receipt of the representations in writing of the party leads us inevitably to the inference that not only was it consequent upon those representations but took those representations into account. It seems to us on a proper construction of that sub section that not only is there the starting point that a Chairman should deal with these matters alone, but there is essentially a requirement that there should be an affirmative likelihood of a dispute on the facts making it desirable for a full Tribunal before the requirement of a single Chairman should be departed from. There has been a considerable body of jurisprudence in the Employment Appeal Tribunal on the issue of a Chairman sitting alone and the legal ramifications of it and there have been some very helpful dicta, no doubt, within those judgments. We consider that it would be unhelpful to add to the general body of jurisprudence any sweeping statements or attempts to put in our own words matters that are already fully expressed in earlier judgments. But we are driven to the following conclusion.
30. At the time that the Chairman made the decision he had to consider 2 aspects. First of all was a likelihood of a dispute arising on the facts but secondly, such a dispute which made it desirable for the proceedings to be heard by a full Tribunal. We are indebted to Mr Evans who has put before us a large body of factual matters, which really required the judgment of an experienced Tribunal such as can be found when a full Tribunal is sitting. In particular he would have wished them to consider, as underlying the ostensible act of the Respondents, judgments as to their real purpose and intent in sending him to America, judgments as to their openness and honesty, he would say in undertaking to have him back if the contract came to an end, and he would point to the contradiction between statements, on the one hand, that they wanted him to go to America as a great new venture, and statements on the other hand which tended to suggest that it was the Respondents' view that there never was a job for him in any event. It would not have been surprising to us if, looking at the limited papers that were then available to Mr Hollow, he had come to the conclusion that there should be a hearing before a full Tribunal.
31. We would make only 2 observations. The statute requires a Chairman to consider the views of the parties and it must be implicit in that that the perception of a party who has had a hearing before a Chairman alone and failed may be, if only in retrospect after the decision is made, that he has not had a fair hearing. That would be no doubt an unjustified conclusion but the fact that the views of the parties have to be taken into account imports with it a recognition that the risk of a party's feeling they have not had a fair hearing is something that it may be desirable to avoid. And the second thing that we would observe is that whilst the Act and the Regulations appear to contain no legal requirement that a Chairman should express any reasons for such a decision, for the same reason it may be that parties, particularly those acting on their own, would understand better the proceedings of our Tribunals if, however shortly, Chairmen are able to give a reasoned note explaining their judgment.
32. However, we have to decide whether the Chairman Mr Hollow erred in law when reaching the decision he did. If we were to come to the decision that he had it seems to us that we would be adding a gloss to the statutory regulation so as to introduce a new legal requirement for the statement of reasons, or a new legal requirement that where there was a dispute on the facts a full Tribunal was required. However, the statute provides only that the Chairman must "have regard" to the likelihood of a dispute and the "desirability" for the proceedings to be heard by a full Tribunal. We would, it seems to us, be defeating the discretion and guidance that is inherent in those words and to which it seems to us Parliament was limiting itself when they indicated the role of the Chairman, if we were to say that it led to any particular legal requirement.
33. So, whilst we recognise the sense of grievance that the Appellant feels looking back on the case and the feeling he has that he could have achieved a different result in front of a full Tribunal which would, he feels, have had a better understanding of the facts, in the end we can discern no error of law on the part of the Employment Tribunal. Accordingly this appeal must be dismissed.