United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR NICHOLAS RANDALL (of Counsel) Instructed by: Messrs Baker & Mackenzie Solicitors 100 New Bridge Street London EC4V 6JA
For the Respondent	MR WAHAB (In Person)


 


MR COMMISSIONER HOWELL QC

1. In this appeal which is before us today for a full hearing, the Respondents to the original Tribunal proceedings, a firm called "Professional Selection & Development Ltd" seek to have set aside the decision of Mr J Simpson sitting alone as the Chairman of the Brighton Employment Tribunal on 29 June 1999 which decision is set out in extended reasons not issued until 12 October 1999, appearing at pages 23 - 26 of the appeal file before us.
2. The proceedings which came before Mr Simpson had begun by an Originating Application dated 25 April 1999 by Mr Faris Wahab, the Applicant before the Tribunal and the Respondent to the appeal before us, in which he had claimed the payment of salary and bonus alleged to be due to him from March 1999 as a result of his departure from his employment with the Appellants as a recruitment consultant, on what he alleged was an agreed basis, his employment with them coming to an end on 19 March 1999.
3. The dispute had arisen because after what was intended, at any rate on Mr Wahab's part, to be an agreed departure, the firm had sent him a letter purporting to terminate his employment on 30 March 1999 for gross misconduct consisting of an alleged breach of his employment terms, as to soliciting staff to join him in a business of his own that it was alleged he was attempting to set up. If what was alleged by the employers was true, it was further alleged that this amounted to a fundamental breach of the employment terms on the part of Mr Wahab, and accordingly that he was not due certain bonus payments that would otherwise fall to be paid to him, and, of course, would have on his employment record a dismissal for gross misconduct. Thus there were important questions depending on disputed issues of fact which fell to be determined before it could be resolved whether the entitlement he claimed was in fact due to him. I say "disputed issues of fact": it is also apparent from the documents before us that they involved the resolution of disputed issues in which allegations of improper or dishonest conduct, or at least underhand conduct, were made against Mr Wahab by the employers, and which it was relevant for individual witnesses to be called and give evidence as to what had or had not been said in conversations between him and other members of the staff whom he was alleged to have approached improperly. Issues of the credibility of witnesses, as to what was or what was not said, were therefore present in the case from the very outset.
4. The appeal to us arises as the result of the decision of Mr Simpson to proceed with what he considered to be the substantive hearing of the entire factual and other issues in the case at the hearing on 29 June 1999, despite the fact that on that date the employers were only represented by one gentleman, Mr Heayberd, who was the Financial Director of the company. He had attended on that date under the impression that the hearing on 29 June, before the single Chairman, was to be merely a hearing at which directions for the further conduct of the proceedings were to be given. He had been given that impression by a message from Baker & Mackenzie, who are the solicitors who have throughout been acting for the employers, as a result of conversations that they had had with Tribunal officials about the way the case would be dealt with. It is apparent that there was a substantial misunderstanding between Baker & Mackenzie and the Tribunal officials, as to whether the hearing on that date had been ordered to be a directions hearing, by some interlocutory direction that had already been given, or was envisaged to be likely to be converted into a directions hearing by the Chairman sitting alone at the hearing itself. At all events, as a result of the advice given to them by Baker & Mackenzie, the employers, the Appellants before us, attended that hearing without having the witnesses of fact that they wished to call on the disputed issues, without having prepared the case, and without having the benefit of any legal representation which they would have had from Baker & Mackenzie had it been understood to be the full hearing of the case.
5. The appeal to us is against the decision of Mr Simpson, first to reject an application made by Mr Heayberd for the proceedings to be adjourned in the light of the misunderstanding, so that the employers could be properly represented and could attend with a properly prepared case and witnesses; and secondly, against the apparent failure of Mr Simpson to address at all the question of whether this was an appropriate case for him to consider and determine as a substantive hearing as a Chairman sitting alone, rather than directing that it should be re-listed for full hearing before a fully constituted Employment Tribunal in accordance with Section 4(1) Employment Tribunals Act 1996.
6. Mr Randall, who has appeared before us on the employer's behalf developed those grounds, as stated in the original Notice of Appeal and his Skeleton Argument, by submitting that the Chairman had simply failed to take into account, on the adjournment question, that to proceed at once with the full hearing, without allowing an adjournment for the employers to present their case in anything like a satisfactory form, had simply overlooked the issue of whether a fair hearing or their case could possibly be afforded in these circumstances. He said that the course taken by the Chairman had amounted to a breach of natural justice or to a denial of the fair hearing to which any party to legal proceedings is entitled.
7. Secondly, he said that in any case the Tribunal Chairman had erred in failing to consider and record a reasoned decision on the issue of whether it was proper for him as a legal Chairman sitting alone to determine the case, in the circumstances that there were plainly disputed issued of fact involved and as recorded in the actual Chairman's Decision, in particular at paragraphs 3 - 5, it was apparent that the basis on which he decided the application in favour of Mr Wahab was that he accepted the credibility of Mr Wahab's oral evidence which he took at the hearing on 29 June, and rejected the contrary suggestions in the documents based on the intended evidence of a Mr Munro, who was one of the people to whom Mr Wahab had spoken, on the basis that he had not had the advantage of hearing Mr Munro's evidence and was unable to attach much weight to it as it had not been oral evidence given before him and had not been the subject of cross-examination before the Tribunal at the hearing.
8. We comment that it is apparent to us that that confirms that this was a case in which substantial disputes as to issues of fact, and an assessment of the credibility of individual witnesses of those alleged facts, required to be resolved by the Employment Tribunal before a satisfactory decision could be given.
9. Accordingly, Mr Randall submitted, as his second main submission, that Mr Simpson had erred in failing even to address the question he was required to consider under Section 4 of the Act as to whether this was a case in which he should be sitting alone and determining such issues at all. Mr Randall referred us to the two authorities of Sogbetun -v- Hackney London Borough Council [1998] ICR 1264 and Post Office -v-Howell [2000] ICR 913 as establishing the principle that it is a mandatory duty on the part of a Chairman sitting alone to consider at the outset of the hearing, if it is intended to be the substantive hearing before him, whether the discretion given to him in Section 4(5) of the Employment Tribunals Act 1996 should be exercised in favour of sitting alone. As is demonstrated by the first of those authorities, confirmed by the second, the fall back position, if the Chairman does not exercise his discretion on reasonable grounds to sit alone, must be, under our system, that the case is to be heard by a fully and properly constituted Employment Tribunal involving two other members in addition to a legally qualified Chairman, constituted under Section 4(1) of the Act.
10. On the material before us, we have to accept Mr Randall's submission that the evidence is clear, that the required consideration by the Chairman of the issues under Section 4(5) of the Act in such circumstances never took place in this case at all. We have the affidavit of Mr Heayberd before us, in paragraph 17 at page 14 of our appeal papers, confirming that the question of whether the Chairman should, or should not, proceed to deal with the case alone was never considered, and the parties were never invited on their views on it. This recollection we understood to be substantially confirmed by Mr Wahab, who was present at the Tribunal proceedings and appeared on his own behalf before us.
11. The consequence of that is that we are satisfied, on the authority of those cases, that there has been a clear error of law on the part of the Chairman, in the way the proceedings were dealt with in this case. It is not necessary for us to consider the technical legal question addressed in those two authorities as to whether the consequences of such an error on the part of the Tribunal Chairman mean that the proceedings are strictly a nullity or are only an irregularity which this Tribunal may consider setting aside. Whichever of those views of the technical legal question is correct, both of those authorities bind us in our view, to reach the conclusion that there was a clear error of law in the way this case was dealt with because the application of Section 4(5) appears never to have been overtly addressed at all, nor were the reasons for any decision reached on the issues under Section 4 recorded as required by the dictum of this Court in Sogbetun.
12. On the basis that it was an error for the Chairman to have failed to have addressed this issue, this Tribunal can review the substance of what was done, and this appears to us plainly a case in which hotly disputed issues of fact arose. It appears to us that the only reasonable conclusion to which a Chairman could have come, on a proper analysis of what issues might arise in the case, was that this was a case which required to be dealt with by a full Employment Tribunal constituted under Section 4(1) of the 1996 Act.
13. Accordingly, we set aside the decision of Mr Simpson, sitting as the sole member of the Tribunal on 29 June 1999, and as was done by this Tribunal in Post Office -v- Howell, the second of the authorities to which we have referred, direct instead that the case should now be remitted to a full Tribunal for the disputed issues of fact to be properly ventilated and the cases of both sides heard.
14. The case is therefore remitted to the Tribunal to be dealt with by a differently constituted Tribunal accordingly. We say "differently constituted" because there was a review hearing on 16 September 1999, at which the same Chairman, plus two lay members, determined against reviewing the original Chairman's Decision on the issue of whether an adjournment had been rightly or wrongly refused, in the light of the misunderstanding had taken place.
15. In the light of the course we are taking, on the authority of the two cases we have cited, and what appears to us a plain departure from the duty of the Chairman (as explained in both of those cases, even though the second one had not, I think, been published at the time he gave his decision on 29 June 1999) it is, in our view, unnecessary for us to address the other main question argued before us as to whether the Chairman had also erred by failing to allow an adjournment on the ground that there had been a misunderstanding and that wherever the blame for this lay, there was no possibility of a fair hearing of both sides of the factual issues in the case, if he were to go ahead. As he recorded in a letter of comment before us in the file, he determined it on the basis, substantially, of the evidence given by one side alone on the disputed issues.
16. We have heard arguments about the overriding importance of justice to both parties, and whether it was wrong for the Chairman to take into account, as an overriding factor against the application to adjourn, Mr Wahab's legitimate assertions that he had heard nothing to lead him to any conclusion that the hearing on 29 June was to have a limited scope, he had come ready to argue the case, and that he considered the procedure would be unfair if the Chairman were to do other than go ahead and hear his case. As we say, he was entirely justified in pointing out that whatever misunderstandings there had been, had not involved him; and that he had been in no way responsible for any mistaken impression that appeared to have been gathered as a result of conversations between a Tribunal official and Baker & Mackenzie, acting for the employers. However since we are on the first ground, remitting the entire case for re-hearing before a fresh Tribunal, it is unnecessary to say more about this.
17. The course we are taking will enable all the disputed issues of fact in the case to be properly ventilated and considered at a full re-hearing at which Mr Wahab and his witnesses can be called and give evidence, and it will also give Mr Wahab an opportunity to arrange for himself to be professionally represented, so that his full case at the hearing can be presented and dealt with in the most favourable way, and in that way a final resolution of the disputed issues of fact, which are obviously of great importance to him, as well as to the employers, can be reached.
18. On that basis, we set aside the decision of the Chairman sitting alone on 29 June 1999, and remit the case to a fresh Tribunal for re-hearing.

[An application by Mr Wahab for leave to appeal to the Court of Appeal was refused]