United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE PETER CLARK:

1. By an Originating Application presented on about 8th March 1999 the appellant, Mr Parkins, alleged that he was employed by the respondent, Optimum Cleaning Services Ltd, as a cleaning operative from 23rd February until his dismissal on 2nd March 1999.
2. In the particulars of complaint he raised a number of causes of action. They were:

(1) Unfair dismissal for an inadmissible reason under the provisions of the Employment Rights Act 1996 (the 1996 Act). He alleged that the reason or principal reason for dismissal was:

(a) a health and safety reason under s.100 or

(b) his asserting a statutory right (s.104), that is asserting rights set out in the employment protection (part-time) employee Regulations 1995 and s.103A of the 1996 Act, as inserted by s.5 of the Public Disclosure Act 1998 (the 1998 Act) and/or

(c) making a protected internal disclosure, protected by the provisions of part IV A of the 1996 Act inserted by the 1998 Act;.

(d) victimisation contrary to s.44 and/or 100 of the 1996 Act.

(2) Failure to give reasons for his dismissal.

(3) Breach of contract, in that the respondent failed to give him notice or pay in lieu of notice; further they had unilaterally varied the terms of his contract of employment.

3. By his Originating Application he also made application for interim relief under s.128 of the 1996 Act, continuing his contract of employment. He also added an application for discovery of relevant documents and the reason for his dismissal.
4. By their Notice of Appearance lodged on 1st April 1999 the respondent agreed that they had employed the appellant at their client, Virgin's premises in Kensington Square, London W.8., they said from 22nd February to 2nd March 1999; denied that he was dismissed and set out the nature of their case. In short, it is alleged that on 2nd March he was abusive to his supervisor, Ms Sandra Eliraki, calling her a racist bitch and elbowing her in the stomach. The client's Facilities Manager, Mr Colin Rodger, then intervened. The upshot was that the appellant was escorted from the premises. We have seen, exhibited to the appellant's affidavit sworn on 21st September 1999, a letter from Mr Rodger dated 3rd March to Mr Steve Fletcher of the respondent, setting out his version of events. It is clear from that letter that in the circumstances Mr Rodger was not prepared to have the appellant back on site at any price.
5. On 3rd March, say the respondents, the appellant was allowed to return to the site for his outstanding pay. He was not permitted to enter the building.
6. It follows, we think that the respondents' case is that if the appellant was dismissed it was for a potentially fair reason, either relating to his conduct or some other substantial reason, that is, the customer would not have him back. It is denied that the reason for dismissal was any of the inadmissible reasons alleged by the appellant. Accordingly he had insufficient qualifying service to bring a complaint of unfair dismissal.
7. S.128(1) of the 1996 Act provides that where an applicant brings a complaint of unfair dismissal based on an inadmissible reason under s.100(1)(a) or (b) (health and safety reason), 101A (Working Time case), 102(1) (occupational pension scheme trustee), 103 (employee representative) or 103A (protected disclosure) - (with effect from 2nd July 1999 when the 1998 Act came into force), he may make an application for interim relief within seven days of the effective date of termination of his employment.
8. That application must be determined as soon as practicable; the hearing of an interim relief application will only be postponed where special circumstances exist (s.128(5)).
9. Interim relief, consisting of a continuation of the contract of employment may be ordered pending final determination of the complaint where the employer refuses to reinstate/re-engage the applicant, and it appears likely that at the final hearing a tribunal will find that the reason for dismissal was one of the inadmissible reasons referred to in s.128(1). 'Likely', in this context, means more than a probability, i.e. a 51% chance that the applicant will succeed at the full hearing. Taplin v C Shippam Ltd [1978] IRLR 451. Thus, at the interim relief hearing stage, an applicant with less that one years' service, allowing for the possibility that the two year qualifying period may be held to be incompatible with European equal treatment law by the House of Lords in ex parte Seymour-Smith, must satisfy the tribunal that he (not the respondent) will establish one of the prescribed inadmissible reasons for dismissal at the full hearing. Maund v Penwith District Council [1984] ICR 143; Smith v Hayle Town Council [1978] ICR 996.
10. Mr Parkins' application for interim relief came before a tribunal sitting at London (North) under the chairmanship of Mrs E M Prevezer on 17th May 1999. We see from the tribunal's extended reasons, promulgated with their decision on 21st May 1999, that events took an unusual course. First the appellant refused to take the oath and give evidence because he insisted that he had not had an opportunity to read the documents relied on by the respondent. The tribunal adjourned to allow him to do so. The appellant's application for discovery was refused, whereupon he accused the tribunal of bias.
11. At 2.15 p.m. the tribunal reconvened. The appellant was asked to take the oath. He declined to do so without discovery by the respondent of his contract of employment. On being told that his claim would be struck out the appellant took the oath and repeated his request for an adjournment. The tribunal then went through the Originating Application, pointing out that the 1998 Act was not in force at the time of the appellant's alleged dismissal.
12. He was asked to give evidence in support of his application for interim relief, but refused to do so without full disclosure by the respondents. He then asked the tribunal to stand down on account of their bias.
13. Matters proceeded in this way, the appellant refusing to give evidence in support of his application for interim relief before discovery was ordered against the respondents.
14. The tribunal found there were no special circumstances justifying an adjournment of the interim relief application in view of s.128(5) of the 1996 Act; the appellant had given no evidence in support of his largely unparticularised allegations of dismissal for one of a number of inadmissible reasons and in these circumstances the tribunal dismissed his application for interim relief and ordered him to give further and better particulars of his Originating Application. It is against the tribunal's decision to dismiss the interim relief application that this appeal is brought.
15. Having considered the matters raised by Mr Parkins in his grounds of appeal, the affidavit sworn on 21st September 1999 and in oral submissions before us we think that the following questions arise:

(1) Was the appellant prevented from presenting his evidential case to the tribunal on the application for interim relief because the tribunal refused to make orders for discovery against the respondents?

(2) Ought the tribunal to have granted his application for a postponement of the interim relief proceedings?

(3) Was the tribunal wrong in law to hold that the provisions of the 1998 Act did not apply in this case?

(4) Did the tribunal and in particular the Chairman, exhibit bias against the appellant?

(5) Did the tribunal err in law in dismissing the interim relief application?

We shall consider each question in turn.

16. Discovery

The appellant applied for discovery of his contract of employment and the respondents; written health and safety policy. The tribunal refused that application. The question is whether such discovery was necessary for the fair disposal of the interim relief application.

In our judgment it was not. Mr Parkins tells that he required a copy of his contract employment (assuming one exists) in order to establish that he was an employee of the respondents within the meaning of s.230(1) of the 1996 Act. That is not necessary. The respondent admits in the Notice of Appearance that it employed the appellant.

As to the respondents' health and safety policy, Mr Parkins submitted that it was necessary to put that document before the tribunal to make good his claim that he had been dismissed for a reason under s. 100(1)(c) of the 1996 Act, or for asserting that statutory right. The health and safety policy is not necessary to determine the issue raised by s.100(1)(c). What is required is for the appellant to show, at the full hearing, that there was no safety representative or safety committee, or if there was it was not reasonably practicable to raise the matter by those means and that he brought to the employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety. At the interim relief stage it was necessary for him to show that it was likely that he would succeed on this point at the full hearing by giving evidence as to any health and safety issue which he raised with the respondents and its causative link with the dismissal. That he did not do before the Employment Tribunal.

In these circumstances we are not persuaded that in the absence of such discovery the appellant was prevented from giving evidence in support of his interim relief application.

17. Postponement

The appellant sought and was granted time to consider the bundle of documents produced by the respondents on the morning of the hearing. He made further requests for a postponement of the hearing. In our judgment the tribunal was entitled to take the view that there were no special circumstances raised by the appellant which required an adjournment (s.128(5) of the 1996 Act).

18. 1998 Act

Protection against acts of victimisation and dismissal for "whistleblowers" came into effect on 2nd July 1999. We think there is a typographical error in paragraph 15 of the tribunal reasons where the date 1998 appears. The appellant's employment ceased on 2nd March 1999. Accordingly he cannot rely on the provisions of the Act.

19. Bias

We are bound to say that this tribunal appears to have exhibited considerable patience with an applicant who was reluctant to advance his case. Indeed, at one point during oral submissions before us, in answer to a question from the Court, the appellant said:

"It is not for me to show you how I am going to put my case."

He wanted to take legal advice first.

That is not the way to conduct litigation.

We can see no grounds for saying that this Employment Tribunal was biased, or gave the appearance of bias, against the appellant.

20. Dismissing the application

As we have earlier observed, it was for the appellant to show that he was likely to succeed at the full hearing. To do so he must adduce some evidence in support of his case, as he accepted in argument. He refused to do so. It follows that the tribunal were bound to dismiss his application for interim relief.

21. In these circumstances we have concluded that this appeal raises no arguable point of law. It must be dismissed at this preliminary hearing stage.