United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	No appearance or representation by or on behalf of the Appellant
For the Respondents	MR RICHARD COLEMAN (of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This is a hearing today of six appeals by Mr Crook, of 29 Foxglove Way, Nursery Fields, Lincoln, Lincolnshire LN5 9XF, against various Orders of the Employment Tribunal sitting at Bristol. I say various Orders, although there is an issue raised by the Respondents, The Ministry of Defence, as to whether it is right to characterise all the matters against which the Appellant appeals as Orders, which are capable of being appealed against; but none of that matters for this purpose. We simply indicate that all six appeals relate to interlocutory proceedings in a claim that the Appellant, Mr Crook, brought against the Respondents for unfair dismissal.
2. The claim for unfair dismissal itself was struck out by the Tribunal on 13 March 2000, and the Tribunal published written Reasons for doing so on 24 March 2000. There was no appeal against that Decision, but by a letter dated 15 March 2000, supported by a further letter dated 25 March 2000, the Appellant sought a review by the Tribunal of the Decision to strike out. The Tribunal refused on 2 May 2000 to review its Decision, and the Appellant appealed against that refusal to review.
3. The matter came before the Employment Appeal Tribunal for the first time on 9 March 2000, when he brought before the Employment Appeal Tribunal seven different interlocutory appeals relating to the then proceedings, which had by that time, as it happens, just been struck out, but in respect of which, as we have indicated, there was then an outstanding application for review. The Employment Appeal Tribunal dismissed six of those appeals, and they are now past history.
4. The seventh was an appeal against a refusal to grant interim relief in the unfair dismissal proceedings, which were, in part, based upon a claim that he had carried out protected acts under the Public Interest Disclosure Act 1998. That seventh appeal was adjourned by Lindsay P to come on by way of a preliminary hearing.
5. What then occurred, as we have indicated, is that the underlying proceedings themselves were struck out and the review was dismissed. The Appellant had brought five more appeals against further interlocutory Orders, as we have indicated, and thus, together with the adjourned appeal against the refusal of interim relief, that amounted to the six appeals which are eventually now before us today.
6. In the meanwhile, as we have indicated, there had been his further appeal against the dismissal of his review application, and on 7 June 2001, there came before Lindsay P, in Chambers, an application which was treated as an application for directions. Once again, there were, in the circumstances that we have described, seven appeals outstanding, but they were, of course, a different seven to the seven which had come before him in March 2000, save for the one interim relief appeal; there were now six outstanding interlocutory appeals, including the interim relief appeal, and the new seventh appeal against the refusal to review the strike-out of the underlying proceedings. That appeal, No 428/00 was the one which had the major attention on 7 June 2001.
7. It was on that occasion that the matter had to be dealt with as to whether the unfair dismissal proceedings had been, or were to remain, struck out, and, having indicated that he was proceeding on what was the correct assumption, and one that has never been challenged, that there was no appeal against the striking out itself, but only an appeal against the refusal to review, Lindsay P at paragraph 5 of his judgment said this:

"5….…….If that is the case"

[that is that there is no appeal against the strike-out itself]

" then a lot of the other 7 appeals that are before me this morning stand to be rendered nugatory"

[I think he meant six appeals]

" because they all are concerned with, and depend upon, the subsistence of the 2 IT1s [unfair dismissal proceedings]. If the IT1s [unfair dismissal proceedings] have been struck out, the other matters such as, for example, whether there should be discovery in relation to this or that IT1, whether there should be interim relief under this or that IT1 and so on, would be swept away. There is however, one Notice of Appeal that could – and I emphasise the word could - introduce the possibility of the striking out being undermined. That is the appeal that ends with the number 428/00, by which Mr Crook complains of the Employment Tribunal's failure to review the striking out of the 24 March.

6 It seems to me that the appropriate course today, and I have put this to both parties, is …… not to treat today as a substantive hearing of any appeal, because that, as it seems to me, would be unfair, because Mr Crook was brought here under papers that say 'Meeting for Directions' and to turn today into a substantive hearing would seem to me to be grossly unfair. Rather the proper course is to adjourn all Notices of Appeal generally except for 428/00. All those other ones can be restored if necessary, depending on the outcome of 428/00."

8. At the end of paragraph 7, in which he deals with making directions in respect of the hearing of 428/00, he concluded by saying that the other six appeals are adjourned generally to be restored, if appropriate, only after the conclusion of 428/00. That appeal came on as a full hearing on 6 December 2001, when it was fully considered, and the Order made by the Employment Appeal Tribunal on that occasion was to dismiss the appeal, and, indeed to make a costs Order against the Appellant. That brought the unfair dismissal proceedings to an end.
9. In a letter dated 10 August 2002, sent to the Tribunal, the Appellant has indicated that he is considering taking the matter to the European Court of Human Rights, but nothing further has been heard of that, and if and when that occurs, he may or may not have some remedy in the European Court of Human Rights, but that would not assist him in reviving the unfair dismissal proceedings which are now closed; and his expiry of time for permission to appeal to the Court of Appeal against the refusal of the review, not to speak of the fact that he did not appeal the original strike-out, means that he is now faced with a fait accompli, so far as the end of the unfair dismissal proceedings are concerned.
10. Today then, deals with the fate of the six interlocutory proceedings, one of which, of course, has been around for a long time, and that is the appeal against the refusal of the interim relief, while the other five are more recent interlocutory appeals, relating to allegations about discovery or disclosure; all of them, however, are now entirely moot or academic, because the proceedings to which they related have now been struck out and dismissed.
11. Mr Coleman has put in an extremely thorough and helpful Skeleton, on behalf of the Respondents, in which he sets out what his case would have been on the substance of each of the six appeals, so as to show that in any event, there was no substance in those interlocutory appeals. We have not thought it necessary to adjudicate on the substance today, but have directed our attention solely to the question as to whether there is in fact anything in the appeals, now that the underlying proceedings, to which they relate, have been finally disposed of.
12. The Appellant has not attended today on the hearing listed for these six appeals. He has not participated in the restoration of the appeal at all, in the sense that a letter was sent by the Tribunal to him at the address, which at all times he has given to the Tribunal. There was a short period in 2000, when a different address in Bolton was given, but that was overtaken by a further letter sent by him to the Tribunal, asking them to ensure that all future correspondence was addressed to him in Lincoln, as from 6 March 2001, which the Tribunal has done; and it was to that address that a letter was sent by the Registrar in January, which stated that, now that the 428/00 appeal had been dismissed, the question of restoration of the appeals, if necessary, arose.
13. No response was given at all by the Appellant, and, as I understand it, he has taken no active part in the arranging or fixing of these appeals. Nevertheless, he has been fully notified about them, and as recently as 22 November he was reminded that there was an outstanding Order for a Skeleton Argument to be lodged by him, and a copy of Mr Coleman's Skeleton Argument sent to him, and that letter was sent by Recorded Delivery and signed for.
14. We are satisfied that the Appellant has had notice of this hearing date, has had the opportunity of putting forward any arguments he wished, even in writing, if he did not wish to attend, and has not done so. We have not, however, simply dismissed this appeal out of hand, in his absence. We have considered the matter just as if he had been here to make submissions to us, and doing out best to think what those submissions might be. I have mentioned the only possible point that might have been made, namely the fact that, at any rate, last August, the Appellant was contemplating the possibility of an application to Europe, which for the reasons we have given, would not have any effect on the termination of the proceedings, even if it occurred, but in any event has not, so far as we know, happened.
15. In those circumstances, we turn to the short issue; given that the proceedings are at an end, is there any life in these appeals? There is plainly none; barren arguments about whether there even was a disclosure order, and, if there was, whether it ought to have been made, in circumstances which are now long gone, and in relation to proceedings which are themselves dismissed, are of no substance, so far as an appeal to this Tribunal is concerned.
16. It may be that an order could have been made, in June 2001, that these appeals automatically fell if the appeal in 428/00 was unsuccessful. That was not the order that was made, although, as we have indicated, Lindsay P certainly indicated that they stood to be nugatory. We are satisfied that they are nugatory; that there is no possible ground which could be thought of to render the appeals of any substance, now that the proceedings are gone which underlay them, and, in those circumstances, we dismiss this appeal.
17. In that there has been no apparent active participation or instigation by the Appellant of the appeals, but simply an absence of positively preventing them by withdrawal of the appeals, Mr Coleman, on behalf of the Respondents, has chosen, after discussion with the Tribunal, not to make an application for costs in respect of this appeal, and consequently, no order is made.