United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR B E WATSON (the Appellant in Person)


 


HIS HONOUR JUDGE J ALTMAN

1. There are before us two appeals. In the first Mr Watson appeals from the decision of the Employment Tribunal sitting at Shrewsbury on 17 June 2002, when they dismissed two claims; one for detrimental treatment on health and safety grounds as a result of an alleged protected disclosure; and secondly a claim in relation to an allegation of denial of rights to be accompanied. The second appeal relates to the refusal on 23 August 2002 by the Chairman of the first Tribunal for the Tribunal to entertain Mr Watson's application that they review the first decision subject to this appeal.
2. The Employment Tribunal dealt with the issue of detriment in the following way. They found that the Applicant, Mr Watson, had made five previous applications – two of which related to detrimental treatment on health and safety grounds – which were identical with the claims in this application and that those applications had been withdrawn and accordingly the Tribunal found that the claims before them, which repeated those earlier withdrawn applications, fell to be struck out.
3. In relation to the question of denial of rights to be accompanied, the Tribunal found that on Mr Watson's own case there had been more than one meeting where he had been accompanied and those so called meetings where he had not been accompanied were simply ad hoc discussions on the shop floor some considerable time ago where the Applicant has walked away. On the ground that those applications had no prospect of success they were dismissed.
4. Before us Mr Watson has argued that whilst it is perfectly true that there were previous applications which had been dismissed on his withdrawal, there were special circumstances, as a result of which the Tribunal should have permitted the matter to be re-opened. He has told us that he was hoping to be represented here today but that his solicitor had another engagement and an application for adjournment had been refused. In fact, on examining the Employment Appeal Tribunal file it appears that whilst we have been notified that the representative will not be here no application to adjourn has been made. We were simply notified that Mr Watson would deal with the case on his own.
5. Mr Watson says that he made a protected disclosure and has been victimised for it. Indeed the victimisation has gone to such an extent that he has now been dismissed and his claim for unfair dismissal is to be heard by an Employment Tribunal at the beginning of next year.
6. He acknowledges that his case was settled through ACAS and part of the terms of that settlement were that his earlier applications were to be withdrawn. However, he says, that agreement has not been honoured. He says that he was not treated equally by his employers; he was paid £1.00 less than the others and his case fell to be investigated; but that there has been a conspiracy to ignore his complaints, to fail to honour the agreement and finally in fact to dismiss him, based on collusion between his solicitors, the unions, ACAS and others and that that has been going on for three years. He thought that the law was on his side but he finds now, he feels, that it is not.
7. Underlying all this in the end is that Mr Watson's main complaint in substance, if not in form, at this stage is, as he has told us, as his solicitors have written on his behalf and as he has written a number of times in his documents that he has prepared for this hearing, is that he has never had the opportunity of a Tribunal's hearing evidence about what has happened. Instead there have been formal orders dismissing his claim on the basis that the matter has already been dealt with.
8. We turn to the question of the claim relating to a protected disclosure and we remind ourselves of the decision of the Court of Appeal in Barber v Staffordshire County Council [1996] IRLR 209, which we drew to Mr Watson's attention during argument before us. What happened in that case is that Mrs Barber's representatives became aware of a decision of the House of Lords before the hearing and intimated to the other side that Mrs Barber would withdraw her claim. Accordingly in that case Mrs Barber's claim was withdrawn without evidence having been heard and the decision of the Tribunal was that the claim was dismissed on withdrawal. The Court of Appeal held that the principles relating to "cause of action estoppel" apply to an Industrial Tribunal Application (as it was then called) which is dismissed by a Tribunal following its withdrawal by the Applicant. There is nothing in those principles of estoppel which stipulate that they can only apply in cases where a Tribunal has given a reasoned decision on the issues of fact and law in the previous litigation.
9. Section 140 of the Employment Protection (Consolidation) Act 1978, which renders void any agreement to preclude a person from bringing Industrial Tribunal proceedings requires a Tribunal to be satisfied that the withdrawal is properly made. Therefore, an order dismissing a complaint upon withdrawal is a judicial decision rather than a mere administrative act.
10. At the end of his judgment Neill LJ says this:

"In Arnold v National Westminster Bank Plc [1991] 2 AC 93 [which reference is being made] the House of Lords considered what "special circumstances" would allow the reopening of an issue which had already been decided inter partes [by the parties]. It was held that the doctrine of issue estoppel was not inflexible and a disputed issue can be reopened where it would in effect be an abuse of process if permission were refused."

However, I emphasise the word "issue" estoppel. What is considered in this case, however, is action estoppel. The actual hearing of the Tribunal cannot be reopened; where as that case was dealing with issue estoppel, that is with the matters that had been argued about before the Tribunal, and whether they can be reopened. Neill LJ went on:

"It seems to me to follow from Arnold's case that it would be possible in special circumstances to allow a claim to be put forward which was not the subject of [action estoppel] in the strict sense but which could have been brought forward in some earlier proceedings."

11. It seems to us, therefore, that the position here is that the rules of the Employment Tribunal make it necessary for a Tribunal to be satisfied that a withdrawal is a proper one and therefore they have reached a decision upon the case, even though they have not heard evidence, which cannot be reopened. It may be that there were issues that could have been raised under the umbrella of that action, which were not, and which a party wants to bring later and which may give rise to special circumstances, but in this case Mr Watson has very candidly accepted that the matters he wishes to reopen are those that were encompassed in the original case – it is just that he feels that there has been a conspiracy to break the agreement which led to that withdrawal.
12. In those circumstances we are driven to apply the decision of the Court of Appeal and come to the conclusion that the Employment Tribunal had no alternative but to dismiss his claim, simply because there had been a previous withdrawal that had been sanctioned by the Tribunal and as a matter of law it could not be reopened. We are driven to conclude, therefore, that there is no issue of law that can be argued that the Tribunal made a mistake.
13. The second matter relates to the finding of the Tribunal that the denial of rights to be accompanied had no prospect of success. They made findings of fact which they were entitled to make and as a result of those findings of fact were entitled, it seems to us, in the exercise of their discretion, to come to the conclusion that there was no prospect of success. In those circumstances also we can discern no arguable error of law.
14. Accordingly, we are driven to the conclusion that there is no matter of law that can reasonably be argued in full before the Employment Appeal Tribunal and that this appeal must therefore be dismissed.
15. Whether or not there are issues within these current proceedings which might also fall to be considered in the claim for unfair dismissal, is a quite separate matter upon which we have no view one way or the other. Our judgment is simply confined to finding that in their original decision the Tribunal did not err in law in the decision they reached.
16. Further more, in relation to the issue of the refusal to exercise their discretion to review their decision, it seems to us that there was no material upon which the Tribunal could reasonably be expected to reopen their original decision and therefore there is no error of law in relation to the decision there made by the Chairman.
17. Accordingly, these appeals on these narrow grounds fall to be dismissed at this preliminary stage.
18. At the conclusion of this hearing Mr Watson sought leave to appeal to the Court of Appeal but it must inevitably follow from our judgment that we can discern no arguable point of law that has any prospect of success in the Court of Appeal and so we are driven to refuse to give leave to appeal.