United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR W REES (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us by way of an interlocutory and preliminary hearing the appeal of Mr R Grant, in the matter Grant –v- Kent County Council. On 17 November 1998 Mr Grant presented an IT1 form of complaint, complaining of unfair dismissal and breach of contract.
2. He had gone on sick leave in March 1998 and had been dismissed on grounds of redundancy on 18 August 1998. His IT1 was 1 day short of the 3-month limit. It is not altogether easy to spell out of the IT1 a clear breach of contract in terms of a complaint that clause such and such had been broken, in such and such a way. A number of complaints were put in the very most general of ways. For example his last complaint of the employer was "It has failed to be a fair and reasonable employer or to provide me with appropriate care, dignity and respect." That is not to say that one cannot spell out of his complaints at least a complaint that the implied contractual term as to trust and confidence was broken by Kent.
3. On 7 December 1998, Kent's IT3 was received and the employer said, amongst other things,

"However, the Respondent's attempts to mitigate the effect of redundancy were rejected by the Applicant and that he stated that he did not wish to be considered for alternative employment with the Respondent.

The Respondent denies that there has been any breach of any contract with the Applicant and in particular the Respondent contends that: -

a) The Applicant had no contractual entitlement to have his post re-graded;

b) No payments were contractually due to the Applicant for any time worked outside his normal 37 hours per week;

c) There is no outstanding mileage allowance for official duty which is contractually due to the Applicant.

d) If (which is denied) the Respondent suffered any personal injury in the course of his employment, then the Respondent contends that the Employment Tribunal has no jurisdiction in respect of that matter."

4. Accordingly the case was listed for the 13 April 1999. There was then quite a lot of interlocutory activity; for example on 24 March 1999, Kent claimed that it needed documents from Mr Grant which it said it had requested from him to no avail and on 25 March the Tribunal made an order for disclosure of such documents by the 6 April. On 29 March Mr Grant asked for an order that certain specific questions be put to Kent and be answered by Kent and that certain further particulars should be given and certain documents should be made available.
5. On 1 April 1999 Mr Grant asked for the disclosure order of 25 March to be set aside or varied. On 7 April Kent asked that the IT1 should be struck out by reason of Mr Grant's failure to comply with the disclosure order. On 8 April the Tribunal declined to set aside the disclosure order. On 11 April Mr Grant supplied a long list of documents, being the documents on which he intended to rely at the hearing. On 12 April the Tribunal told Kent that it would not strike out the IT1, although it plainly took the view that Mr Grant would not be able to rely upon documents at the hearing, he having failed to comply with the order.
6. Then came 13 April and the hearing began. Kent began, and it would seem that the Tribunal thought that that had been agreed, although Mr Rees, who has kindly appeared before us today for Mr Grant under the ELAAS scheme, suggests that that had not been agreed. A Mr Mike Bell gave evidence for Kent and his evidence it seems, finished at about 3.50pm. The case was adjourned as part heard and relisted and initially the relisting seems to have been for 23 June. On 4 August 1999 it was re-fixed for 23 November. It seems that there had been a number of postponements at Mr Grant's request. Eventually, as we indicate, there was re-fixing for 23 November. The postponements at Mr Grant's request were at least on occasion (we have not got all the details) on medical grounds, but we have not got the certificates or the medical evidence that was used.
7. On 14 November 1999 Mr Grant wrote to the Tribunal and at this point one needs to notice the elapse of some 7 months from the hearing on 13 April, and also notice the short interval left between 14 November and the adjourned hearing date 23 November. Mr Grant took a number of points in his letter of 14 November. Thus he says: -

"It appears to me that the Chairman has already closed his mind to any evidence or arguments I may present and there is a real danger my action will fail as a direct result of this. More importantly, it may be concluded that an independent reasonable observer would reach the same conclusion.

The major cause of my concern surrounds the Chairman's remarks towards the end of the first day of the hearing.

After the Respondent had presented his case, but before I had presented any evidence, the Chairman made the suggestion to Mr Shiltern, the barrister representing the Respondent, that he may wish to a submit a plea of "no case to answer." Mr Shiltern replied that he was considering that and went on to express his concern about the cost of the Tribunal for Kent County Council. He explained that though he had worked for Kent he was at present working privately and the costs to Kent were therefore very high.

The Chairman took this up, explaining that he was considering making an order against me for the costs Kent County Council would incur if they had to attend a further hearing.

There then followed what I can only describe as an interrogation by the Chairman that appeared to be aimed at persuading me to withdraw from my action. Whilst I might have expected this from the Respondent's representative, I did not expect it from the Chairman.

The Chairman however went on, in what felt like a cross-examination, to elicit more information about my evidence.

I then asked if he would make the decision today about whether he would award costs against me so that I could have time to consider it.

He told me he would not decide until the next hearing.

At the beginning of the hearing he told us he had chosen to take on the case, as he was already familiar with the facts surrounding it. He had, some weeks earlier, chaired the hearing of a case concerning a former colleague of mine, Mrs Fairweather. Mrs Fairweather's action against Kent County Council failed.

Given these circumstances it is impossible for me to have faith in the present Tribunal and therefore to present my case will, I believe, be to undergo a pointless and for me, very stressful experience unnecessarily.

I appreciate that as the hearing is set for a week's time, this letter comes late in the day. You are aware however both from the evidence given by the Respondent and by my earlier request for a postponement, that I have been ill for a long time. The nature of my illness you will realise makes it difficult at times for me to deal with problems such as this. It is only during periods when I feel strong enough that I can address them."

8. The Tribunal answered that in a letter of 19 November. The letter says that the matter had been referred to the Chairman. In paragraph 3 and 4 it says this: -

"In dealing with your application, the Chairman has had regard to the following authorities:

Peter Simper & Co Ltd .v. Cooke [1986] IRLR 19

Regina .v. Gough [1993] AC 646

Brooks Band .v. Buckinghamshire County Council EAT/504/97

The Chairman does not agree with the allegations you have made, most of which appear to be based on a misunderstanding of the events on 13 April 1999. The Chairman has expressed surprise that these matters have been raised a few days before the hearing is due to resume and some seven months after the date of the last hearing.

You were questioned about the remedy you were seeking as a result of the Respondent's evidence that, on the termination of your employment, you received some £61,000 plus a pension of £22,000. Again Mr Rees tells us that is a miscalculation in relation to the amount of the pension.

The Chairman did not invite the Respondent to make a submission of no case to answer, but he did indicate to Mr Shulman that the Tribunal would not need to hear further evidence from the second witness, Cathy Johnson.

Neither the Chairman for the Tribunal Members are biased against you, and no independent observer present on 13 April would have had any reason for believing there was any bias."

9. On 22 November Mr Grant appealed against the refusal to arrange a rehearing by a different Tribunal. We do not doubt that where evidence of the most compelling kind is given which shows that an initial incomplete hearing has been so very badly conducted that it would not be just to permit the adjourned hearing to continue and before the same panel, the EAT could respond to such a case. However, we do not see this case to be a case of any such kind. Indeed, without medical evidence before us to support any claim about Mr Grant's inability to take the point earlier, Mr Grant's 7 month delay, itself points to the first hearing not being so hopelessly and manifestly unfair as to suggest the need for an adjourned hearing to be in front of a different Tribunal. Surely had that been so obvious Mr Grant would have launched his case or protested in some way sooner than he did. That point is very much a point that depends on the nature of medical evidence which, of course, we have not seen. In the absence of medical evidence the application appears to be one in which an applicant is, in effect, seeking to recuse one Tribunal involuntarily in the hope of getting another which less displeases him. We make no final ruling at all today on whether there has or has not been bias or misconduct on behalf of the Chairman or on behalf of the whole 3 person panel. When the hearing is eventually concluded the IT1 and the IT3 have been ruled upon then Mr Grant will be free to appeal as he chooses and he will be free if he chooses, to appeal on the grounds of bias or misconduct. He will, of course, have to satisfy the Employment Appeal Tribunal Practice Direction in regard to any appeal bias or misconduct, but he would be free to do that if he so chooses.
10. However, what we do say at this stage is that bias or misconduct has not been demonstrated by cogent evidence to that high degree necessary to interrupt a case which is part heard and which has been adjourned to come on later. A remarkably strong case would need to be shown to take the case away from one panel and to require it to be started afresh before another and that strong case has not been demonstrated.
11. There is no doubt at all that Mr Grant feels that he was poorly treated. The Respondents went first with their case. Mr Grant, although there is some reason to believe it had been agreed that the Respondent should go first, now takes a contrary view. He might always have taken a contrary view. We can not go into that on the material we have. But, when it comes to be his turn to present his case, then he will, of course, be able to develop it in full. As for the evidence which he calls as part of his case, that has not yet been come to. If he wishes Miss Johnson's evidence to be part of his case he will be able either to arrange for her attendance or to apply for her to be required to attend. That is all in the future.
12. One of the things that has led to the alleged loss of confidence in the Tribunal is apparently the costs warning that was given at the hearing. It is, of course, entirely proper for a Chairman to warn a party if the Chairman fears that what is about to be embarked upon is not only irrelevant but costly. The Chairman needs to keep proceedings within relevant bounds, but it is extremely easy, and it is a thing that Chairmen have to keep in mind, especially when dealing with litigants in, for such indications to be misunderstood. Indications which really are intended to be no more than a kindly warning that if irrelevant matters are gone into there may need to be ultimately, an order for costs can so easily be taken to be an indication by a litigant in person that a case has been decided against him. We do not see, in this case, that such warning as to costs that was given provides any proper ground for loss of confidence, but it will greatly assist the further hearing if the Tribunal, and the Chairman in particular, are at pains to avoid misunderstandings of the kind that perhaps have coloured this matter so far. Care is also particularly needed in the further conduct of this case because Mr Grant has a history of ill health that needs to be borne in mind. But, no doubt, when the matter is returned to it, the Tribunal will be most careful to respect the considerations that we have described. Simply dealing with the matter that is before us today, we emphasise that we make no finding one way or another on bias or misconduct save to say that it has not been shown even arguably on cogent evidence to that high degree that would be necessary to interrupt a partly heard case.
13. Accordingly we dismiss the appeal, even at this interlocutory and preliminary stage.