United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T B NICHOLLS (the Appellant in Person)
For the Respondent	MR R CATER (Advocate) Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB

SUMMARY

Unfair Dismissal / Practice and Procedure

Appeal alleges 1. Perversity in no evidence to support crucial findings of fact that the principal reason for dismissal was redundancy and not SOSR. Due to errors by EAT no Chairman's notes of errors ordered; PD not followed. Order for production of Chairman's notes of evidence. Case adjourned.


 


HIS HONOUR JUDGE BIRTLES

1. This is an appeal from the decision of an Employment Tribunal sitting at Southampton on 23 January, 14 March, 8 May and 14 July 2003. The Chairman was Mr J Simpson. The members were Mrs J Wood and Mr R H Kingshott.
2. The reserved decision of the Employment Tribunal was that:

(1) The Respondent did not unfairly dismiss the Applicant; and

(2) The Applicant's claims alleging dismissal for asserting a statutory right and non-payment of notice pay were dismissed on withdrawal by the Applicant.

The appeal is against the finding of the Tribunal that the Respondent did not unfairly dismiss the Applicant.

3. The Notice of Appeal is lengthy but at the front of it in a document marked 'A' there are 12 grounds of appeal identified. Without going through them in detail they can be divided into 3 separate categories.
4. The first relates to the finding by the Employment Tribunal that Mr Nicholls was dismissed for some other substantial reason. His case was and is that he was in fact dismissed for redundancy and he alleges that there is an error of law in the Tribunal's finding on this. Second, he alleges that in a number of respects the Employment Tribunal in its decision made findings of fact when there was no evidence to support that decision. That of course is a point of law which, if successful, could result in a rehearing: see British Telecommunications plc v Sheridan [1990] IRLR 27. Third, Mr Nicholls alleges perversity. Perversity is of course a very high standard for an Appellant to reach: see Yeboah v Crofton [2002] IRLR 634. As is clear from the authorities, it is virtually impossible for an Appellant to succeed in a claim of perversity without either there being the agreed notes of evidence (that is, agreed between the parties) or the Chairman's notes of evidence in default.
5. In this case the matter first came before His Honour Judge Prophet sitting with Ms Corby and Mr Smith on 12 December 2003. That panel of the Employment Appeal Tribunal gave permission to Mr Nicholls to go forward to a full hearing on all 12 of his grounds of appeal. We have before us a request for directions produced by Mr Nicholls for the hearing on 12 December 2003. Mr Nicholls tells us and we accept that in the view of pressure of time he did not have the opportunity of developing the request that he made, suffice it to say that the Employment Appeal Tribunal rejected all of his requests.
6. The particular one which causes concern today is in respect of the Chairman's notes of evidence. The written application requests a number of items. Item 1 is sub-divided into 3 and the first one is in respect of the Chairman's notes of evidence and the other two relate to documents which would assist Mr Nicholls in knowing the reasoning of the Employment Tribunal.
7. Paragraph 4 of the Order of that panel of the Employment Appeal Tribunal which was stamped on 22 December 2003 says this:

"A request from Mr Nicholls for the Chairman's notes of evidence is refused, as also are applications for new evidence of the recall of witnesses."

It may well be that the Employment Appeal Tribunal on that occasion thought that the notes that were being requested were those of the Chairman in relation to his reasoning process and the reasoning process of the lay members. Not surprisingly, that request was refused.

8. However, the matter does not stop there. Subsequently Mr Nicholls wrote to the Registrar on 19 March 2004 requesting the Chairman's notes of evidence. He had by then become aware of the authority of Piggott Brothers & Co Ltd v Jackson [1992] ICR 85 where Lord Donaldson said quite clearly that in cases of perversity the Chairman's notes of evidence are normally required.
9. That letter was followed up on 18 April 2004 and on 30 April 2004 the Registrar wrote to Mr Nicholls refusing his application and setting out a procedure to be followed which, in effect, is that contained in paragraph 11 of the Employment Appeal Tribunal Practice Direction.
10. Mr Nicholls wrote again and it was not until 21 May that the Registrar again refused his request for the Chairman's notes of evidence. Against that decision Mr Nicholls has appealed to this panel. Normally of course such an appeal would lie immediately to a judge, but in view of the short time between 21 May and today we have considered it as a preliminary issue at the hearing.
11. Mr Cater who appears for the Respondent has frankly conceded that in the absence of the Chairman's notes Mr Nicholls' appeal will really not be able to get off the ground. We agree. It seems to us quite impossible for this Appellant to argue either perversity or that there was no evidence upon which the Tribunal could have made particular findings of fact in the absence of the Chairman's notes of evidence and we therefore order the Chairman in this case to transcribe his notes of evidence for all of the witnesses who gave evidence before the Tribunal.
12. The second issue which arises is in relation to bias. This is raised by the Respondent's representative, Mr Cater, in a letter to the Employment Appeal Tribunal dated 6 May 2004. The issue arises because there are a number of remarks in the Notice of Appeal and indeed Mr Nicholls' Skeleton Argument which suggests that he is alleging either bias or procedural irregularity on the part of the Tribunal and in particular the Chairman.
13. I specifically asked Mr Nicholls at the beginning of the hearing this morning whether that was the case. He specifically said it was not; he was not alleging bias or procedural irregularity. The standard EAT procedure for dealing with allegations of bias set out in the Practice Direction has not therefore not been applied in this case and insofar as there are any suggestions in any Notice of Appeal or Skeleton Argument put forward by Mr Nicholls which suggests bias or procedural irregularity on the part of the Chairman or either of the members we are sure that the Employment Appeal Tribunal panel hearing this appeal on a later date will ignore them.
14. The third issue which arises is in relation to a letter dated 17 May 2004 where Mr Nicholls requests permission to add additional arguments to his Skeleton Argument and to lodge additional authorities in support of his Skeleton Argument.
15. In view of the fact that this appeal will have to be adjourned, and adjourned for at least we would estimate 2-3 months, we can see no prejudice to the Respondent in permitting Mr Nicholls to file that addition to his Skeleton Argument and rely upon the additional authorities. We grant leave to the Respondent to file an amended Skeleton Argument if so desired. That Skeleton Argument to be filed within 28 days from the date of the Order.
16. Next, Mr Nicholls makes an application which is contained in a letter dated 31 January 2004 to the Registrar which requests further and better particulars of the Respondent's Answer. It is not necessary for me to go through each of those in turn. We refuse this application. The reason for refusing is that it is not normal for this Tribunal to order a Respondent to provide further and better particulars of its Notice of Appearance. Secondly, many of the matters are matters which are in contention and may well emerge in any event in the Chairman's notes of evidence.
17. Essentially, this seems to be an attempt to reargue matters which were before the Employment Tribunal. We, as we have emphasised, are not concerned with relitigating the evidence. Our function is to decide whether or not there is an error of law on the part of the Employment Tribunal and that alone.
18. Finally, there is an application by Mr Nicholls that the Respondents do file a chronology because the chronology he was asked to file is in part disputed by the Respondent. We will not make that order. What we will do is give permission to the Respondent to file a chronology if it so wishes 28 days from the date of the Order of today.
19. Finally, we adjourn the hearing of this appeal to a date to be fixed. The revised time estimate will be two consecutive days.