United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR IBEKWE (TU Representative)
For the Respondent	MR ANTHONY WHITE QC (of Counsel) Messrs Ford & Warren Solicitors Westgate Point Westgate Leeds W Yorks LS1 2AC


 


HIS HONOUR JUDGE D PUGSLEY

Preliminary Matters

1. Mr Francis Neckles, the Appellant in this case, has been involved in a body of litigation before Employment Tribunals and there are various judgments of the Employment Appeal Tribunal appended to this file.
2. Litigation is neither a game, nor a hobby, which can be taken up at will or put aside, according to the whim of the person concerned. This Tribunal has received requests for an adjournment from Mr Neckles on the basis that he had the sole responsibility for taking and collecting his daughter from school. Members of the staff of this Tribunal have tried to contact him in order that they could seek to accommodate his needs. In the event the case was left in the list and Mr Neckles appears by Mr Ibekwe. Mr Ibekwe has appeared in this Tribunal on other occasions when he has represented people. The precise relationship he has with the Applicant is not at all clear to us. Mr Ibekwe told us he is a member of an Employment Tribunal sitting in London. We deprecate the time and effort that is wasted by pointless applications for adjournments which seem unnecessary.
3. The issues in this case arise out of a multiplicity of actions which were before the Employment Tribunal on 21 August 2001, the decision of which was promulgated on
   25 September. Of the several cases that were before the Tribunal on that occasion we are only concerned with one such case. It is unnecessary to reiterate at length the various pieces of litigation there have been. Since this Tribunal has sat, Mr Neckles has sent a further decision of an Employment Tribunal. We have passed that on to the Respondents to see if they wished to reply but no reply has been received at the time of drafting this decision. It is not a matter to which we have had any regard.
4. It is pertinent to note that of the seven cases there were before the Employment Tribunal one of the cases concerned an application to strike out the case on the basis that it had been conducted in an abusive, disruptive, scandalous, frivolous or vexatious way. That application was refused. The nature of the application was that in correspondence the Applicant had asserted that various chairmen of the Tribunal were biased, possibly racist, arguably incompetent and that more than one of them was a liar. The basis of refusing the application to strike out was that the Tribunal took the view that all the chairmen of the Tribunal were more than able to ensure that the Applicant does receive a fair trial and that striking out an originating application on this ground was a draconian measure which the Tribunal was not prepared to take. Although that case is not an issue before us and has not been referred to by either party, we consider it appropriate to place that matter in the context against which we now hear the particular issue which is under appeal.
5. The decision is a careful and balanced one and we therefore consider that the appropriate course is to set out that part of the judgment which deals with this case at paragraphs 10-17 of the decision:

"Issue 2 – Case No 1806977/99

10 This was a relatively short point. On 9 March 2000, proceedings were heard before the Employment Tribunal, under the Chairmanship of the Regional chairman, Mr David Sneath. the subject matter of that hearing is not presently relevant. It is relevant only to record that an appeal was brought against the finding of the Tribunal. In the course of preparation for the appeal, the Applicant through his then Solicitors, produced a document headed

"Transcript of hearing Re: Neckles. After the Break 2.00 p.m."

The document is lengthy and appears at pages 57/74 of the bundle prepared for the use of this Tribunal by the Respondent's Solicitors. It appears that that transcript may be a part only of a longer document, because there is a reference in a letter written by Mr Graham to the Applicant's then Solicitors on 26 January 2001, as follows:

"We note that on pages 208 to 305 (sic) of the bundle supplied that there is an account of the proceedings. Such account begins only following our firm's submissions with reference to the attached document. This is also evidence we have not previously had sight of. Given that you intend to place reliance upon this evidence, kindly confirm its origin."

The response is at page 75 and reads, in part:

"Pages 208-225 of the bundle prepared for the Preliminary Hearing contains our client's transcript of part of the original Tribunal Hearing."

There was a response to that letter asking for:

"The original notes or recording from which this evidence was generated."

No answer was ever given to that request.

11 The Tribunal was told by Mr Graham (and we accept) that the transcript was produced to the Employment Appeal Tribunal. It does not appear that the EAT took any particular point on the fact that it appeared to be the product of an unauthorised tape recording. It was described by the EAT as an unauthorised transcript, but the EAT did not say that it was improper. The appeal proceeded on the merits of the matter without reference to this issue.

12 The Respondent contends that the unauthorised tape-recording of proceedings before a Tribunal is a Contempt of Court. We were referred to the provision of Section 9 of the Contempt of Court Act 1981 which, so far as relevant, reads:

"It is a contempt of court to use in court, or bring into court for use, any tape recorder or other instrument for recording sound, except with the leave of the Court."

There was no suggestion that leave of the court had been requested or given. It is clear that the word "Court" includes a Tribunal. Accordingly, if a tape recording was made, that appeared to this Tribunal to be a Contempt of Court. Mr Graham submitted that it was clear from the face of the transcript that it had been made in consequence of the use of a tape recorder. He pointed to the use of the words "inaudible" and "sounds like". If the transcript has been the product of any other from of noting the proceeding, those terms could not have been used.

13 The Tribunal therefore asked the Applicant, through his representative, Mr John Neckles, for an explanation. Mr Neckles took the Tribunal through various of the relevant correspondence, with particular reference to whether this Tribunal was entitled to consider this matter. The Tribunal was quite clear that no earlier ruling had been made on the point and that it could consider the present application on its merits. As the hearing progressed, it became clear that Mr Neckles and the Applicant were unwilling to deal with the substantive issue before the Tribunal, namely whether the transcript had been made as a result of the use of an unauthorised tape recording. The Applicant's position was that a serious allegation of criminal conduct had been made and it was for the Respondent to prove that allegation. Mr Neckles pointed, somewhat curiously, to the fact that no attempt had been made by the Respondent to call the Applicant as a witness under the provisions of a Witness Order. Against that, the Tribunal noted somewhat more relevantly, that Mr Neckles was unwilling to call his client to give evidence and pointed out that the Tribunal might well draw an inference from that failure. Mr Neckles made it clear that the Applicant was not willing to give evidence. The Tribunal asked Mr Neckles to state, in terms, the Applicant's position in respect of the making of a tape recording or otherwise. Mr Neckles would only say that the Applicant's position was in terms of what he was about to say. We recorded his submission in detail. He referred to the failure of the Respondent to call the Applicant to give evidence and the failure of the Respondent to call any evidence, other than the production of the document. He suggested that the Tribunal should not simply accept allegations made by the Respondent and that we should adopt the criminal standard of proof in deciding whether a transcript had been made from an unauthorised tape recording. Throughout those submissions, he consistently failed, both generally and in answer to three specific questions from the Tribunal Chairman, to say what the Applicant's formal position was before this Tribunal as to how the document at pages 57/74 of the bundle came into existence. After three attempts, the Tribunal concluded that it was unlikely to obtain any answer. The Tribunal noted that the Applicant's response to the question raised by the Tribunal was that the Applicant declined to answer that question.

14 The Tribunal concluded, without any doubt, that the transcript had been made from an unauthorised tape recording. We take the view that the burden of proof in this matter is the civil burden of proof. That is, that on the balance of probabilities, the document has been prepared from an unauthorised tape recording. If we are wrong in that contention, because the Contempt of Court Act arguably contains criminal penalties for improper activity, then, applying the criminal burden of proof, we are satisfied beyond reasonable doubt that the transcript was produced by an unauthorised tape recording. There is no other basis upon which such a document could have been prepared.

15 We then moved to consider whether a breach of the provision of Section 9 was scandalous conduct. It seems to us that Section 9 of the Contempt of Court Act 1981 is in clear terms. There has here been a deliberate breach by the Applicant or by some representative on his behalf – it matters not – of an Act of Parliament. This is not an unusual or obscure piece of legislation. All persons using the Courts or the Tribunals know of the provision. In any event, no explanation whatsoever was given by the Applicant, explaining away his conduct by reason of ignorance or anything of that sort. In the circumstances, the Tribunal can only conclude that the making of the tape recording was a deliberate contempt. In those circumstances, we have no difficulty in holding that a deliberate contempt of that sort is scandalous conduct. It seems to this Tribunal that, if that type of conduct is not scandalous conduct of the proceedings, then it is difficult to see what might be regarded as scandalous conduct. We are aware of recent cases before the Employment Appeal Tribunal, in which conduct which appears to be far less deliberately contemptuous of the Tribunal has nonetheless been held to be scandalous. Since the conduct was scandalous, we know of no reason why we should not exercise our discretion to strike out the proceedings and, indeed, no argument to the contrary was raised by the Applicant or by his representative. We make an Order accordingly.

Issue No. 3 – Case No. 1806977/99

16 It will be noted, of course, that this complaint has already been struck out by reason of the scandalous conduct of the proceedings. The Tribunal considered whether it should continue to deal with any aspect of this matter. On the basis that Mr Neckles indicated that there would be an appeal against the decision on Issue 2, we thought it pragmatic to consider the alternative argument raised by Mr Graham, on behalf of the Respondent. That argument is that the complaint of victimisation (which is the only remaining issue in these proceedings) should be struck out on the basis that there is a lack of jurisdiction on the part of the Tribunal. That argument is based upon the decisions of the Employment Appeal Tribunal and Court of Appeal in D'Souza – v – London Borough of Lambeth EAT 360/96 and [2001] EWCA CIV 794. It appears to the Tribunal that the facts of the instant case and those in D'Souza are, in practical terms, identical. Mr D'Souza was not entitled to pursue his complaint that he was the subject of unlawful race discrimination because he was not an employee of the Respondent to the complaint at the relevant time. Mr Graham argued that exactly similar considerations apply to the present Applicant. The Applicant's argument is that a failure to reinstate him, pursuant to an Order of the Employment Tribunal, amounts to and was an act of race discrimination. At the relevant time, the Applicant neither applied for employment, pursuant to the provisions of Section 4(1) of the 1976 Act, nor was he an employee, pursuant to the provisions of Section 4(2). Whatever the present Respondent did or did not do is not therefore unlawful under the 1976 Act, whatever may be the position in respect of any earlier complaints of unfair dismissal.

17 The Applicant's argument on this point was non-existent. He simply said that he did not accept the Respondent's position. No counter-argument was put forward. The Tribunal has little difficulty in accepting the Respondent's contention. It seemed to us to be entirely good law. The Tribunal has no jurisdiction to consider the Applicant's remaining complaint in this particular matter and it is therefore, for these alternative reasons, dismissed."

The Issue of Jurisdiction

6. We have been helped in this case by having a prior sight of the skeleton argument drafted by Mr Anthony White QC. Mr White has pointed out that the Applicant's appeals against the striking out of the proceedings on the ground that it has been conducted in a way that has been scandalous but does not raise the alternative ground that the Employment Tribunal lacked jurisdiction to consider the matters of which complaint was made. The allegation is that the Respondent victimised the Applicant for bringing a race discrimination claim by failing in September 1999 to comply with an order for reinstatement. In its judgment the Tribunal considered that the victimisation claim advanced by the applicant was indistinguishable from the claim which the Court of Appeal had considered in D'Souza v London Borough of Lambeth [2001] EWCA CIV 794. That decision reviewed the earlier authorities of P O v Adekeye [1997] ICR 110 and Rhys-Harper v Relaxian Group Ltd [2001] EWCA CIV 634 and concluded that the Tribunal had no jurisdiction to consider a claim by a former employee alleging the non compliance by his order for a re-instatement. Mr White finished his submissions in his skeleton argument by saying that the law was unassailable and the appeal should be dismissed.
7. Mr White informs us that the case of D'Souza has now received leave to appeal to the House of Lords though there is uncertainty whether it was full or provisional leave.
8. This has raised difficulties because we have been met by an application by Mr Ibekwe that he might have leave to appeal that issue. Mr White has referred us to the Chancery case of Derby v Weldon [1981] 1 WLR 124 and has argued that the appropriate case is for us to seek to determine that case on the law as it is now believed to be.
9. Much water has passed under the bridge since the decision in Derby's case. We are all of the view that in the context of employment law it would be far more appropriate to stay this appeal on that issue until the House of Lords has given judgment in D'Souza. All of the members of this Tribunal have knowledge of cases which have been of seminal importance for Employment Tribunals. Hundreds, if not thousands, of applications have been stayed to await the result of certain cases on such issues as emanation of state; access to pensions and on continuity of employment. There is a wisdom outside Chancery Lane and The Temple and we consider that it would be quite wrong for us to prematurely seek to resolve an issue when there is a real possibility that the House of Lords will give a definitive judgment on it.
10. We give leave to the Applicant out of time to serve grounds of appeal within 21 days of the receipt of this judgment. We see no point in reserving this aspect of the case to ourselves. In view of our decision the matter is academic at this stage. However, we have preserved the Appellant's position.
11. All that we say on that issue is subject to the question that arises on the other ground, namely that this case was wrongly struck out because it had been conducted by or on behalf of the Applicant in a way which is scandalous.

The Decision to Strike Out

12. The grounds of appeal and the skeleton argument by the Appellant are not matters which we have found of the greatest assistance to us. It seems that the appeal is based on the ground that the Respondent employer has brought proceedings against the Applicant alleging very serious allegations of a criminal nature and as such it is for the Respondent to establish a prima facie case or evidence of a breach under the relevant legislation. The argument is that only then does it become necessary for the Appellant to defend or justify or plead in mitigation of his case. It is alleged that it is for the Respondent to prove guilt and Warmington v DPP [1935] AC 462 is cited as is Miller v Pensions [1947] 2 All 372. It is then argued that there is a breach of Article 6 of the Human Rights Act.
13. It was argued, in a somewhat half hearted way, that maybe the transcript arose by virtue of students who were taking notes on behalf of the Applicant. It does not seem that this was an issue that had been raised before.
14. Rule 15(2)(d) of the Employment Tribunal Rules of Procedure 2001 provides that a Tribunal may:

"subject to paragraph (3), [which requires notice to be given] at any stage of the proceedings, order to be struck out any originating application or notice of appearance on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant or, as the case may be, respondent has been scandalous, unreasonable or vexatious …"

15. Section 9(1) of the Contempt of Court Act 1981 provides, in part, as follows:

"1 Subject to sub section 4 below it is a contempt of court –

(a) to use in court or to bring into court for use, any tape recorder or other instrument for recording sound except with the leave of the court."

Section 9(4) provides an exemption for the making or using of sound recordings for the purpose of official transcripts of proceedings. An Employment Tribunal is a court for the purposes of Section 9 – see Section 19 and Peach Grey & Co (A Firm) v Sommers [1995] 2 All ER 513 at 519.

16. Mr White points out that the Respondent were not seeking to establish that the Applicant was guilty of contempt of court but only that his conduct at the proceedings had been scandalous. In such circumstances it is submitted that it is not necessary to establish the criminal burden of proof and he has referred us to the decision of Neuberger J in FSA v Rourke The Times 7 November 2001. Mr White points out that even if we held that there was a criminal standard required that in any event according to the Tribunal in the light of their findings they had established that it was beyond reasonable doubt.
17. In brief, Mr White's submission is that the Applicant was given a full opportunity to explain and apologise but declined to do so and he refers us to the case of Re Hooker [1993] COD 190. Mr White submits that the absence of any explanation from the Applicant, despite repeated invitations to provide one, means there was nothing to rebut the inference that Section 9 had been breached and that no mitigating factors were advanced in relation to that breach.
18. It is submitted that the Employment Tribunal was entitled to regard the unexplained breach of Section 9 of the Contempt of Court Act as scandalous conduct and to exercise its discretionary power to strike out. The absence of any explanations or apology was a consideration which the Employment Tribunal was entitled to take into account and we have been referred to the judgment of Arden LJ in Terry v Hoyer [2001] EWCA CIV 678.
19. Although not referred to the case in argument we have considered the case of De Keyser Ltd (appellants) v Wilson [2001] IRLR 324, a decision of Lindsay J. It is unnecessary to go into the facts of that case but it concerned the basis upon which a medical expert had been instructed. After an exhaustive review of the authorities in paragraph 24 it was pointed out that the crucial issue in that case was whether or not a fair trial was still possible. However, as is made clear in paragraph 25 of the judgment, the case which Mr Justice Lindsay was considering was not a case involving disobedience to, or failure to perform an order of the court; wilful, deliberate or contumelious disobedience was not an issue.
20. We are well aware that Tribunals must always guard against the temptation of allowing its understandable indignation at the way a case is being pursued to lead to a miscarriage of justice. However repetitious, obsessive or embittered may be the approach of a party to litigation, he or she still has a right for their case to be heard.
21. As a general proposition this Tribunal does not for a moment consider that it would be right to strike out a case because someone had taped part of the proceedings. However, where as in this case, there was an obdurate refusal to explain what has happened, to admit it on the overwhelming evidence there was, we consider it is well within the discretion of a Tribunal to take the course that this Tribunal did. As Lord Justice Pill observed in Terry v Hoyer UK Ltd at paragraph 16:

"I make the general observation that I do not accept that conduct is incapable of being scandalous or frivolous such as to justify a strike out with the meaning of the Rules only if there cannot eventually be a fair trial notwithstanding that conduct. There is conduct which no court or tribunal, with its necessary concern of the proper administration of justice, could tolerate. Courts and tribunals must be concerned to do justice. They must, in doing that, have regard to the interests of litigants in general, to the proper use of court time and to the need to ensure respect for courts and tribunals in the community."

22. In this case the Tribunal had in other parts of the same decision shown that they had taken a robust view to allegations made against the Chairman in that particular area and had not struck the case out. Faced as they were with the remorseless and inexorable evasiveness on what was clearly a transcript, they were, in the view of this Tribunal, entitled to take into account, not only that a transcript had been made by a tape recorder but the total refusal to accept that and/or apologise for it.
23. Where the very basis of trust that should exist between a court and representative is broken we would go so far as to say that there are issues as to whether or not a fair trial is possible. But in our view, as was made clear in Terry v Hoyer UK Ltd and accepted in De Keyser there is a distinction to be drawn as to the nature of the behaviour.
24. Further we accept Mr White's contention that the refusal to provide an explanation to the Employment Tribunal for what was prima facie breach of Section 9 of the Contempt of Court Act 1981 was so unreasonable that it could have been struck out perfectly properly on that basis in any event.
25. It follows from our decision that the appeal is dismissed on the basis that it was within the discretion of the Tribunal to strike out the Appellant's action because it was scandalous, or in the alternative we would say that as a matter of robust reality, because the conduct was unreasonable. The appeal is dismissed. The issue of the appeal on the point of jurisdiction therefore does not fall to be determined. The issue could only be raised if our decision on the striking out was reversed on appeal.