United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DARYL JONES Representative


 


JUDGE REID QC

1. This is the Preliminary Hearing of an appeal from a decision of an Employment Tribunal held over five days with a further day in Chambers in the summer of 2001 at Stratford. By the decision of that Tribunal it was held that Mrs Jones had not been dismissed from her position as a teacher at St Edwards School and that therefore there was no unfair dismissal. Against that decision Mrs Jones now seeks leave to appeal. We had the benefit of a detailed and helpful skeleton argument prepared by her son who presented her appeal on her behalf.
2. The appeal takes three points. The first is that the Appellant was not given a fair hearing in accordance with Article 6. Reference is also made to equality of arms because one of the members of the panel a Mr Mathias knew one of the witnesses for the Respondents. It appears that Mr Porter, one of the Respondents' witnesses was a business acquaintance of Mr Mathias. That point was raised by the Chairman at the outset of the hearing and the options then given to Mrs Jones according to him were to look for a new third member of the Tribunal which as he appears to have pointed out might have been difficult in a short space of time or to continue with two members only or for Mr Mathias to continue as a part of the panel.
3. Mrs Jones accepted the last of those suggestions but she says that she felt under pressure and indeed coerced by the Chairman to accept Mr Mathias. She points out that when she was initially asked about it her response was "I will have to take my chances" and says that when this was not satisfactory to the Chairman she felt pressurised into giving an unconditional "Yes". The first point at which this complaint was raised was after the decision that the Tribunal had been given.
4. Then it is said that the Tribunal should have been more helpful to her as a litigant in person and they should have explained to her the possible consequences of the decision which she has been asked to make. The possible consequences of having Mr Mathias on board were, it was said, first of all that Mr Mathias might prefer Mr Porter's evidence to other witnesses' evidence because of his knowledge of Mr Porter and then that preference might infect the other members of the panel. It does not with respect to Mr Jones seem to us that something that needed to be spelt out to a lady who had had a long career as a school teacher. The potential problem and the reason for pointing out Mr Mathias' knowledge of Mr Porter must have been self evident. In our judgment had Mr Mathias not revealed his connection with Mr Porter it would have been open to the Appellant to say that she has not had a fair trial because there was a potential perception of bias but the point was put to her and although she was a litigant in person she was perfectly able to deal with it even if at the time she felt under some pressure. It seems to us that she lost any right to complain about Mr Mathias' position as a member of the panel by the delay in making any complaint about his presence until after the decision of the Tribunal. In our view therefore there is no substance in the first of the points.
5. The second point that Mr Jones has taken is that the Tribunal showed bias by cutting short Mrs Jones in her evidence, in particular re examination, and in her cross examination of witnesses called on behalf of the Respondent employers. The position was that the case was originally listed for two days. A further three days were then fixed for it and Mrs Jones complains that she was not given much say in how much longer was fixed after the initial two days but was merely asked for her diary but it is clear that the Tribunal took the view that a further three days were enough and that as a matter of proportionality they regard that the further three days as being as much as the case of this nature was entitled, to make it a total of five hearing days.
6. In our judgment there was nothing wrong in that nor in our judgment was there anything wrong with the Tribunal, in the exercise of its discretion as to how to conduct the proceedings, deciding that the time should be split and deducting the time already spent by each party from the total time allocated to them. In fact as it turned out at the stage the calculation was made Mrs Jones had used up just over six and three quarter hours whereas the employers had used up about seven hours. It is incidentally noticeable when it came to the final speeches although Mr Jones who was to deliver the final observation on behalf of Mrs Jones indicated that he was going to take half an hour, he was allowed to take an hour and three quarters. There was therefore nothing in our judgment wrong with the way in which the Tribunal determined how time should be spent.
7. What has however caused us some concern is Mrs Jones' assertion that she was not allowed to deal in re examination in particular of herself and in her cross examination of some of the Respondents witnesses with the point which was in our judgment the crux of this case, namely the way in which the mental health risk assessment process was conducted.
8. Going back on the history slightly, Mrs Jones said that she was entitled to resign and, was constructively dismissed because the failure of the school to conduct a mental health risk assessment process properly was the last straw. What had happened was that after what was clearly an unhappy relationship between herself and the headmaster she had at one stage tendered her resignation. That resignation was withdrawn on the basis that the school would conduct a mental health risk assessment process and it was when that process was not proceeding as Mrs Jones thought it should that she re-tendered her resignation, left and began these proceedings.
9. In that situation the way in which the mental health risk assessment process was undertaken and the procedure that was followed was clearly of very considerable importance. We share the Tribunal's evident view that the effect of the withdrawal of the earlier resignation was to wipe the slate clean so far as matters in the past were concerned. Thereafter if Mrs Jones was to be entitled to treat herself as dismissed it was because the bargain struck over the withdrawal of her resignation had not been kept by the school. It seems to us that it may well be that Mrs Jones devoted too much time to raking over what were immaterial old problems and as a result of that she may well have not concentrated as would have been desirable on the more recent history in particular what happened under the Mental Health Risk Assessment process.
10. There is it seems to us a case which merits further investigation - we put it no higher than that - as to whether the Tribunal, no doubt to some extent confused by the wealth of ancient history, improperly cut Mrs Jones short both in her own evidence and in her cross examination when it came to dealing with the mental health risk assessment process. She told us that she was stopped from cross examining in this respect and that she wished to adduce some evidence herself in other respects which she was prevented from doing so. We think that the investigation of that matter is something which should go to a full hearing.
11. We do not however think that the third ground of appeal namely that the decision was perverse is one on the evidence as it stands which has any prospect of success. The decision is clearly and carefully reasoned and in our judgment if it was formed on all the appropriate evidence it is one which is unimpeachable as being perverse. However, as we say we have concern as to whether it could properly be said that Mrs Jones was prevented from adducing all the evidence she would like on that one area of the mental health risk assessment process and what we therefore proposed to do is to allow this case to go for a full hearing on that one ground namely whether the Tribunal erred in law in preventing Mrs Jones adducing further evidence in relation to the process. For that purpose it will be necessary to have the Chairman's notes of evidence given by witnesses in relation to the risk assessment process, in each case together with any indications in those notes as to whether Mrs Jones was prevented at any stage from adducing evidence or asking further question in relation to the process.
12. In order for that point to be put properly before the Tribunal for a full hearing it would be necessary for an amended Notice of Appeal to be put in which spells out that single ground. I have no doubt that Mr Jones can assist his mother in preparing an appropriate notice of appeal which takes this one limited ground and we will direct that the amended Notice of Appeal raising that one ground be put in within 28 days. As we have already indicated the Chairman will be asked for limited parts of his notes of evidence. The time estimate of the appeal will initially at least be half a day. It will be listed as Category C and my colleagues helpfully reminded me that it might also be helpful if there was for the Tribunal for the full hearing a copy of the letter of resignation. That no doubt to be added to the bundle for the purpose of the appeal. To that extent therefore the appeal should go forward to a full hearing.