United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS GRACE WILSON 2 Southey Hall Drive Sheffield S5 7PR
For the Respondent	MR T SADIQ (of Counsel) Instructed by: Sheffield County Council Admin & Legal Dept Town Hall Sheffield S1 2HH


 


JUDGE D M LEVY QC

1. As long ago as 16 May 1998, Mr Peter Joseph Wilson ("the Appellant") applied to an Industrial Tribunal for relief on the grounds of unfair dismissal and victimisation in relation to a complaint made by a member of his family against his employer, in connection with the Race Relations Act 1976. He had been employed by the Respondent Council from 13 January 1986 to 24 January 1998 and he had, as appeared from documents which we have seen, been dismissed for misconduct.
2. There was a hearing of his complaint before an Employment Tribunal sitting in Sheffield on four days in January 2000 and on 2 February 2000. The unanimous Decision of the Tribunal was that the Applicant was not victimised, contrary to section 2 of the Race Relations Act 1976, nor was he unfairly dismissed. His complaints to the Tribunal were dismissed.
3. The Decision was sent to the parties on 7 March 2000. A Notice of Appeal was lodged on 12 April 2000, and there was an application for a review which was refused by the Chairman. There was a preliminary hearing of his appeal under the ex parte system of the Employment Appeal Tribunal; that hearing, on 15 November 2000 was before a panel on which I sat with two other members of the Tribunal than those sitting with me today.
4. Allowing one aspect of the appeal to go forward, I and my colleagues held that the matters other than the point as to whether there was a fair trial, were unarguable but we were not satisfied that on the information then before us that it could be sufficiently ascertained as to whether there were grounds for an appeal, on the basis that there was not a fair trial, to go forward.
5. We therefore directed there should be a second preliminary hearing. That came before a Tribunal which was headed by Mr Recorder Langstaff on 22 March 2001. Giving judgment, that Tribunal held that the case should go forward to a hearing, basically first to establish whether or not Mrs Wilson might have been told by the Employment Tribunal she could present the case for the Appellant, her husband, and that she was not then permitted at the hearing to do so; secondly for the Appellant to argue that that might have been a failure to permit her to do so, which caused disadvantage to her and the Appellant in the conduct of those proceedings.
6. In our Judgment, the Recorder specified four paragraphs from the Notice of Appeal which were matters which Mrs Wilson, on behalf of her husband, could raise at the full hearing. These were that:

"From the very first day, when Mrs Wilson tried to explain to Mr David that she was my representative the chairman bluntly told her that she could only speak when giving evidence.

On one occasion when she raised her finger to politely ask the chairman if she could question Mr Bailey when he made very serious allegations against her, the chairman told her in front of the 11 men to either be quite, shut up or he throws her out. Mrs Wilson was shocked and alarmed and very upset.

Please find enclosed the letter dated the 6^th of January, 2000 stating that the Tribunal had no objection for Mrs Wilson to represent me, and be a witness.

The denial of Mrs Wilson as my representative placed me at a distinct and unfair disadvantage but when it came to the respondent's representative, there was no such restriction. It was very difficult for myself to present my case on my own."

7. Mrs Wilson has represented the Appellant this morning. She attempted to go rather beyond the bounds of those grounds in her address, which took over an hour, to us this morning, and we can well understand why she and the Appellant are upset at the hearing which took place below. As she has pointed out to us, the statements of the Chairman and the two side members who sat below, Mr A C Reid and Mr J D Walker, conflict in some ways with their recollections of what happened below, and it is not clear even at this stage, whether or not she was or was not allowed to represent her husband.
8. The complaints which she has made as to the fairness of the hearing have given us some cause for disquiet, but at the end of the day, having heard from Mr Sadiq, who did not appear below, we have reached a conclusion that, although the hearing below was in some ways unsatisfactory, this is not a case where we should allow the appeal. Mr Sadiq referred us to a decision - in Bache -v- Essex County Council [2000] IRLR 251, in an edition of the Industrial Relations Law Reports which was published on 4 April 2000, shortly after the Decision in this case had been promulgated. The Court of Appeal allowed an appeal from the Employment Appeal Tribunal who had held that a litigant in person could not be represented by someone, notwithstanding that the Rules said that he could.
9. There is a passage in the judgment of Mummery LJ which we think is most useful when we consider the facts on this appeal. At paragraph 35 Mummery LJ said:

"I would dismiss the appeal for the same reasons as Peter Gibson LJ. I would add the following general comments in view of the particular difficulties sometimes encountered by tribunals in hearing cases conducted by lay representatives as well as by parties acting in person.

(1) At the hearing the tribunal must follow a procedure which is fair to both sides. It must normally allow each party to call relevant evidence, to ask relevant questions of the other side's witnesses and to make relevant submissions on the evidence and the law."

10. Here, the Employment Tribunal heard evidence for four days. Mrs Wilson has said that she and the Appellant were prevented, or may have been prevented from asking relevant questions. They certainly were allowed a full three weeks to consider what they wished to say in their final closing submissions, because at the end of the fourth day of the hearing, Counsel for the Respondent, who was about to retire from the Bar, made his submissions and Mrs Wilson was given what we think was an advantage to her of having three weeks to consider what she wished to say in reply, on behalf of the Appellant. The two of them were given the opportunity to consider the better what could be put to the Tribunal in answering the allegations made.
11. Mummery LJ continued:

"(2) the tribunal is responsible for the fair conduct of the hearing. It is in control. Neither the parties nor their representatives are in control of the hearing.

(3) Procedural fairness applies to the conduct of all those involved in the hearing. Just as the tribunal is under a duty to behave fairly, so are the parties and their representatives. The tribunal is accordingly entitled to require the parties and their representatives to act in a fair and reasonable way in the presentation of their evidence, in challenging the other side's evidence and in making submissions. The rulings of the tribunal on what is and is not relevant and on what is the fair and appropriate procedure ought to be respected even by a party and his representative who do not agree with a ruling. If the party and his representative disagree with a ruling, an appeal lies against it if the tribunal has made an error of law.

(4) A tribunal makes an error of law in its procedural rulings if it either has no power to make the ruling or if, in the exercise of its discretion, it makes a ruling which is plainly wrong in the sense that no tribunal properly instructed could have made that ruling.

(5) Even if the appeal tribunal or the Court of Appeal find that a ruling has been made in error of law, it does not follow that the appeal should be allowed and that the case should be reheard by the tribunal in whole or in part. This is not to diminish the importance of procedural fairness: it is as important in many ways as the application of the substantive law to the facts of the case. But the response to the finding of an error of law in procedure should be proportionate. If the appeal tribunal is sure that the result of the case is unarguably right and that the outcome would have been the same, even if the error of procedure had not occurred, it would be unnecessary, unjust and disproportionate to remit the case to the tribunal for a rehearing." [ Emphasis added ]

12. The basic facts of this case were very stark. At a disciplinary hearing on 24 February 1998, the Appellant, a resident caretaker in the employ of the Respondent faced seven charges of misconduct. The first two charges were that he had not resided in his service tenancy at 225 Norwich Row since approximately May 1995, contrary to the requirements of his contract of employment. Secondly, that he falsified timesheets on fifteen occasions to a total of seven hours and fifty seven minutes.
13. Those two charges were found proven, and the Appellant was dismissed. A couple of other charges were found proven, and on each a final written warning was given. On three of the charges, no action was taken.
14. The Appellant appealed to the Respondent's Head of Housing. After a three day hearing, the Head of Housing upheld charges one, two and three, and allowed the appeal on charge four. There was a further appeal to a committee of three councillors. The Appellant unsuccessfully applied for a full rehearing in all seven charges, but the panel decided to limit the appeal to two charges, one and two, for which the Appellant was dismissed. The appeal was unsuccessful.
15. We have already given details of the application made by the Appellant to an Employment Tribunal and the Extended Reasons in which the Tribunal unanimously dismissed the claims. We have also referred to the refusal of a review.
16. We have already referred to the Notice of Appeal by the Appellant and that on the first preliminary hearing this Tribunal dismissed the appeal on all matters, other than that complaining of an unfair Tribunal hearing. We have already set out what happened at the second preliminary hearing of the appeal.
17. In essence, what Mr Wilson, the Appellant, complains of is a serious procedural irregularity, namely he was deprived of the opportunity to be represented by his wife and he was disadvantaged as a result. It is common ground now that the issue of representation had been raised by the Appellant prior to the Tribunal hearing which was at first put in issue in the Respondent's answer.
18. The Respondent also accepts that the Tribunal does not have the power to prevent a representative chosen by party from acting for it, but the Respondent, through Mr Sadiq, has contended that the issues in the appeal were did the appeal prevent the Appellant's wife from representing the Appellant and if so would this have made any difference to the outcome of the case.
19. So far as the first of the questions is concerned, it is not clear, as we have said, whether or not the Tribunal did prevent Mrs Wilson from representing the Appellant at the hearing, but on the basis that that did happen, we are satisfied that it would not have made any difference to the outcome of the case, given the clear findings of the Tribunal as to the investigation made by the Respondent, and as to the clearly correct finding of the Respondent's findings as to the conduct of the Appellant. On those findings the Tribunal was entitled to make the decision they did on both matters which were raised in the application made by the Appellant.
20. One of the other complaints made by the Appellant was that the Chairman did not reveal that he had earlier chaired a matter in which he had found against the Appellant. In our judgment, this is something that the Appellant himself would have known, and in any event, it was not material to him sitting on a matter such as this. Further, it did not in any way affect the result of this hearing.
21. In the circumstances, we can well understand that the hearing was not an easy one for Mrs Wilson, the Appellant, or for those who were hearing it, and it was one which might have been conducted better, but at the end of the day we are satisfied that such procedural irregularity as there was, did not lead to any miscarriage of justice. In the circumstances, while thanking Mrs Wilson for her submissions on behalf of her husband, the Appellant, and Mr Sadiq for his submissions on behalf of the Respondent, we will dismiss this appeal.
22. Mrs Wilson applies for leave to appeal on behalf of her husband. We have decided that there may well have been a procedural irregularity below, but it did not affect the very clear result in the case. We will not grant leave to appeal, the Appellant will have to seek his leave elsewhere.