Bache v Essex County Council [2000] EWCA Civ 3

EWCA-Civ
Bache v Essex County Council
[2000] EWCA Civ 3 · 2000-01-21
[1]Case No: EATRF/98/1012/A1[2]IN THE SUPREME COURT OF JUDICATURE[3]COURT OF APPEAL (CIVIL DIVISION)[5]EMPLOYMENT APPEAL TRIBUNAL[6]Royal Courts of Justice[7]Strand, London, WC2A 2LL[8]Friday, 21 January 2000

LORD JUSTICE PETER GIBSON

[19](Transcript of the Handed Down Judgment of[20]Smith Bernal Reporting Limited, 180 Fleet Street[22]Tel No: 0171 421 4040, Fax No: 0171 831 8838[23]Official Shorthand Writers to the Court)[24]Mr. Thomas Roe (instructed by the Bar pro bono unit for the Appellant)[25]Mr. Thomas Linden (instructed by The Essex County Council Coporate Law Division for the Respondent)[27]As Approved by the Court[29]Friday, 21 January 2000

LORD JUSTICE PETER GIBSON:

[32]The primary issue in this case is one of some importance for Employment Tribunals: where a party is represented by a person whom he desires to represent him but the Tribunal takes the view that by reason of that person's conduct of the case that party should represent himself, does the Tribunal have the power to stop that person from representing that party?[33]The Appellant, Brenda Bache, was employed by the Respondent, Essex County Council ("the Council"), as a care assistant in its social services department from August 1989 until 15 November 1995 when she sent a letter of resignation to the Council after being suspended for a lengthy period through disciplinary proceedings. She applied on 1 February 1996 to a Tribunal, claiming that the Council was in breach of contract and that she was constructively dismissed. Her application was opposed by the Council.[34]The hearing before the Tribunal took place on 24 and 25 October and 2 December 1996. Initially she was represented by a friend, Mr. Leggett. He is not a barrister nor a solicitor nor a representative of a trade union, but had represented Mrs. Bache in the disciplinary proceedings. The burden of proof being on Mrs. Bache to establish constructive dismissal, she gave evidence first. But before her evidence was completed, with Mr. Leggett's agreement three witnesses for the Council were interposed and they were cross-examined by Mr. Leggett. The Tribunal took the view that Mr. Leggett was not performing very well, and the Chairman's notes record that Mrs. Bache herself intervened three times, on one occasion the Chairman noting "Applicant asks via Leggett to be able to cross-examine at this point. He is floundering." On the morning of the second day a witness for the Council, after questioning by Mr. Leggett, was questioned by Mrs. Bache herself. The Chairman then recorded the following incident:[35]"(The Tribunal adjourned to discuss. Mr. Leggett is causing enormous delay and diversion in the development of the evidence. Applicant also cross-examining. Losing sight of issues and won't be guided. All on tribunal agreed to "sack" Leggett. His questions are not questions at all. In (sic) causing huge delay and clouding the issues).[37]The tribunal room cleared save for the presence of the parties, so as not to cause embarrassment to Mr. Leggett. Tribunal view put. Applicant agrees to represent herself with Leggett assisting. Leggett told to assist, but not to examine or cross-examine witnesses."[38]The hearing then recommenced. A witness for the Council gave evidence and was cross-examined by Mrs. Bache. She then resumed giving evidence. The Chairman recorded two interventions by Mr. Leggett while Mrs. Bache was being cross-examined. On the first, Mr. Leggett was asked to remain silent or leave. On the second, he was told to be silent and was advised to make notes during cross-examination for reexamination. At the conclusion of the cross-examination the Chairman recorded:
"The ban on Leggett is lifted to allow him to prompt the applicant on any matters she may have forgotten."
Mrs. Bache then gave further evidence by way of reexamination. One further Council witness was heard and cross-examined by Mrs. Bache that day. There was then an adjournment for 5 weeks. On the resumed hearing on 2 December 1996 a further Council witness was heard and cross-examined by Mrs. Bache, but it is evident that Mr. Leggett was also joining in the questioning. The Chairman recorded:[39]"Chairman stops Leggett from cross-examining. He is welcome to help the applicant but is confusing to us all for both of them to join in the cross-examination."[40]When a further witness for the Council gave evidence and was cross-examined by Mr. Bache the Chairman did not allow Mr. Leggett to cross-examine him on a particular matter. One more witness for the Council gave evidence and was cross-examined by Mrs. Bache. Final submissions were then made. Those for Mrs. Bache took the form of lengthy written submissions on which Mr. Leggett helped Mrs. Bache. She was given a further opportunity, after oral submissions had been made for the Council, to reply but she had nothing to add.[41]The Tribunal dismissed Mrs. Bache's application. It gave its summary reasons on 5 December 1996 and its extended reasons on 14 March 1997. It held that there was no breach of contract by the Council and so there was no constructive dismissal. Mrs. Bache decided to appeal to the Employment Appeal Tribunal ("the EAT"). In a letter to the EAT she raised a large number of points about the merits of the case, but she also complained about the conduct of the Chairman, saying:[42]"My representative was prevented from representing me fully and effectively at the Tribunal by [the Chairman] when he momentarily stumbled over the immense paper-work in front of him and I was left to try and decipher Mr. Leggett's hand-written notes .... My representative was warned that he would be removed from the Hearing on two occasions. He was not rude or abrasive and does not understand why .... At a second hearing my representative had prepared some questions he expected to be allowed to ask as he was under the impression that he could represent me having had time to recover. I did not receive any indication that I would be expected to represent myself again at that second hearing and was not advised to seek professional advice or representation at the close of the first hearing. My representative was immediately stopped from asking questions and further confusion ensued as his questions were handwritten and ran to many pages."[43]On 10 July 1997 Mrs. Bache swore an Affidavit in support of her appeal. She accused the Tribunal of not being sufficiently impartial. Among the many points taken was this:[44]"[The Chairman] cut my representative short when he asked if he could ask a question as [the Chairman] had previously stopped him representing me.... At a second hearing my representative began to open his questioning when [the Chairman] stopped him and said "Not you!" pointed to me and said "You!" .... [The Chairman] shouted to my representative on at least two occasions and threatened to remove him from the hearing. My representative and I can think of no reason for this. If there was, it was not explained to us so that he could be more careful."[45]In Mrs. Bache's formal notice of appeal one point which she took was that the Tribunal prevented her representative from acting fully and effectively for her by admonishing him over minor stumbles and delays in formulating questions.[46]As is the practice when criticisms are made of a Tribunal's conduct, the comments of the Chairman were invited by the EAT. He replied, saying:
"Mr. Leggett .... did not demonstrate a sufficient understanding of his task so as to be able to help the applicant and, though he was unfailingly courteous, was unnecessarily prolonging the proceedings by his method of cross-examination and apparent failure to grasp the purpose and focus of the hearing.... [T]he Tribunal had to offer guidance and explanation, often having to repeat it .... I and my colleagues adjourned to discuss Mr. Leggett's involvement and decided that he could no longer be asked to assist because he was not assisting. The Tribunal was resumed in Chambers so as not to embarrass Mr. Leggett and the matter was explained to him and it was in these circumstances that he was removed as the applicant's representative though he remained at all times and in fact .... continued to play a part."
[47]At the preliminary hearing of Mrs Bache's appeal before the EAT (His Honour Judge Hicks Q.C. presiding) on 17 September 1997 she was allowed to go ahead with that appeal on only two procedural points one of which was that the Tribunal had improperly ruled that Mr. Leggett could no longer represent Mrs. Bache and could not examine or cross-examine witnesses.[48]At the full hearing of the appeal before the EAT (Kirkwood J. presiding) Mrs. Bache was represented by Counsel. The EAT dismissed the appeal. In giving the judgment of the EAT Kirkwood J. referred to Reg. 9 (1) of Sch. 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 ("the Procedure Regulations") and said that the discretion of the Chairman extended to necessary regulation of the conduct of a representative. He pointed out that the Chairman could discourage, disallow even, irrelevant questions and refuse to receive irrelevant matter advanced by the representative. But he asked what if the representative persisted with lengthy and irrelevant material or was persistently offensive to witnesses. The judge said that circumstances in which a Chairman could properly feel it necessary to disempower entirely a representative must be very rare indeed but the EAT was satisfied that the power of control, to be exercised judicially and judiciously, was there because of the Chairman's duty to control and conduct the proceedings in a fair and business-like manner. The judge then considered whether the Chairman exercised the power properly and said that there was nothing to show that the Chairman was manifestly wrong in the way he acted nor did anything occur in the way in which the Chairman exercised his power to lead the EAT to overturn his decision.[49]The EAT refused permission to appeal but permission was given by this court.[50]The questions which arise on this appeal are the following:[51](1) Does the Tribunal have the power to prevent a representative chosen by a party from acting for that party?[52](2) If so, was that power exercised properly?[53](3) If the Tribunal does not have that power, did Mrs. Bache acquiesce in conducting the case herself or is she otherwise prevented from taking the point that the Tribunal did not have the power?[54](4) If there was no acquiescence and no such prevention, was the decision of the Tribunal nevertheless plainly and unarguably right so that the decision should stand, or should the case be remitted for a rehearing?[55](1) Power to dismiss a representative[56]Mr. Roe, to whom we are indebted for appearing for Mrs. Bache pro bono and for his lucid arguments, submitted that the Tribunal cannot deprive a party of his statutory right to be represented by the person of his choice. He relied on s. 6 (1) Employment Tribunals Act 1996, which (as amended) provides:[57]"A person may appear before an employment tribunal in person or be represented by - (a) counsel or a solicitor, (b) a representative of a trade union or an employers' association, or (c) any other person whom he desires to represent him."[61]He pointed out that a predecessor provision attached the qualification "without the leave of the tribunal" to what is now para. (c) (see para. 7 (1) of the Schedule to the Industrial Tribunals (Redundancy Payments) Regulations 1967), and that it was replaced without the qualification by para. 9 Sch. 6 Industrial Relations Act 1971. He described the right as unqualified.[62]Mr. Linden, appearing for the Council, submitted that that right was qualified by certain provisions of the Procedure Regulations. He pointed out that those Regulations were made pursuant to the power conferred on the Secretary of State by para. 1(1) and(2) (f) Sch. 9 Employment Protection (Consolidation) Act 1978 (now s. 7 of the 1996 Act).

(f) is in this form:

[63]"The regulations may in particular include provision - (f) for prescribing the procedure to be followed on any appeal, reference or complaint or other proceedings before an industrial tribunal, including provisions as to the persons entitled to appear and to be heard on behalf of parties to such proceedings ...."[66]Mr. Linden relied in particular on reg. 9(1) and(2) of the Procedure Regulations, which provide:[67]"(1) The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings.[68](2) Subject to paragraph (1), at the hearing of the originating application a party shall be entitled to give evidence, to call witnesses, to question any witnesses and to address the tribunal."[69]Mr. Linden submitted that reg. 9(1) and(2) was made pursuant to that part of the power in para. 1 (2) (f) which refers to "provisions as to the persons entitled to appear and to be heard on behalf of parties.". That seems to me to be an unnatural way of regarding reg. 9 (1) and (2), given that para. 6 of Sch. 9 to the 1978 Act contained a provision the equivalent of s. 6 (1)(c) of the 1996 Act. I own to having difficulty in understanding precisely what Parliament had in mind by the reference to provisions as to who might appear and be heard in the light of the enactment of para. 6. Reg. 9 (1) and (2) seems to me plainly to have been made pursuant to the power for providing the procedure to be followed on proceedings before a Tribunal. If it was to have cut down the specific right of the party to have the representative of his choice (assuming, without deciding, that such cutting down were possible), it would have required clear and specific wording to do so, and general provisions, not directed to the position of a representative, such as are found in reg. 9 (1) and (2), would not, in my judgment, suffice.[70]It is not in dispute that a Tribunal has the power under reg. 9(1) to control the way a party or his representative conducts his case before the Tribunal. Thus, the Tribunal can exclude irrelevant evidence and argument and stop lines of questioning and submissions which do not assist. Kirkwood J. well stated the position under reg. 9 (1) and(2) in Zurich Insurance Co. v. Gulson [1998] I.R.L.R. 118 at paras. 13, 14 and 16, where he referred to the duty of the Tribunal to keep the enquiry before it within what it considers to be proper bounds. I wholeheartedly endorse the existence of that duty. Mr. Linden submitted that there was no true distinguishing line between preventing a representative from asking questions or making submissions on the one hand and preventing the representative from doing more than assisting the party whom he represents to ask questions and make submissions on the other.[71]I see no difficulty in drawing a clear distinction. The Tribunal in the one case is exercising its undisputed power to control the conduct of the proceedings by the representative so as to confine the representative to what is relevant. In the other case the Tribunal is purporting to deprive the party of his statutory right to have the representative of his choice represent him but to reduce that representative to the status of a McKenzie friend. In my judgment there must be statutory authority if that statutory right is to be cut down, and I cannot find it in reg. 9 (1) and (2). To my mind Mr. Roe is right to say that s. 6 (1) confers an unqualified statutory right. If a party chose to be represented by a solicitor or counsel the Tribunal may be able to ensure compliance with its directions by a threat to report the representative to his professional body, but it would not, in my judgment, be possible for the Tribunal to direct that the party had to represent himself. Similar considerations apply where a party chooses to be represented by a trade union or employers' association representative. I can see no difference in principle where the party chooses someone else to represent him under s.6(1) (c). I do not see how the Tribunal can take away the party's right to that representative representing him.[72]I fully recognise that so to hold could leave Tribunals with potentially very difficult situations, as the EAT envisaged, when a representative may try to persist in doing what he has been told not to do. If the representative so acts with the knowledge and approval of the party, that may in an extreme case constitute an abuse of process such as may disentitle the party from relief or from being entitled to defend the proceedings. The conduct may in an extreme case constitute contempt, though the Tribunal itself will not be able to punish for contempt but may have to cause contempt proceedings to be instigated (see R 52.1 (2) (a) (iii) in Sch. 1 to the Civil Procedure Rules and Peach Grey & Co. v Sommers [1995] 2 All E.R. 513). It is perhaps unfortunate that the leave of the Tribunal is no longer a requirement for representation by a representative under s. 6 (1) (c). But that is a matter for Parliament.[73]For these reasons I would respectfully disagree with the view of the EAT and hold that the Tribunal does not have the power to dismiss a representative.[74](2) Improper exercise of power[75]This question therefore does not arise.[77]Mr. Linden submitted that Mrs. Bache cannot now complain of the absence of a power in the Tribunal to dismiss a representative for two reasons.[78]The first reason was said to be that Mrs. Bache agreed on 25 October 1996 to representing herself and to Mr. Leggett merely assisting her. He relied on the Chairman's notes to that effect.[79]I cannot accept that Mrs. Bache "agreed" in any meaningful sense. It is apparent from those notes that the Chairman thought that the Tribunal had the power to "sack" Mr. Leggett and that he could be "told to assist but not to examine or cross examine witnesses". The Chairman referred to the "ban" on Mr. Leggett. In the Chairman's letter when commenting on the criticisms made of him, he referred to Mr. Leggett no longer being "asked to assist", as though it was with the Tribunal's leave that Mr. Leggett appeared as Mrs. Bache's representative. I do not doubt that the putting of "the Tribunal's view", after which Mrs. Bache agreed to represent herself, was done in unequivocal terms, so that little choice was given to Mrs. Bache, unprotected as she was by any professional representative. She was not forewarned by the Tribunal that this might happen if Mr. Leggett continued to be inadequate. She was not given time to think about it or consider whether she might obtain someone else to represent her. She herself in her Affidavit referred to the Chairman as having "stopped [Mr. Leggett] representing me". That in truth was what happened, and I cannot treat her "agreement" to representing herself as constituting acquiescence in that.[80]Mr. Linden's second reason was that Mrs. Bache had not protested or objected to the Tribunal at the sacking of Mr. Leggett and he suggested that it was too late for Mrs. Bache to take the point before the EAT. I reject that. A party aggrieved at a procedural decision by the Tribunal must be entitled to take the point on appeal even if he did not object at the time of the decision, particularly when the party is without legal representation at that time.[81](4) Correctness of decision[82]Mr. Roe submitted that this court was bound in the circumstances to remit the case to the Tribunal for a rehearing. Mr. Linden however drew our attention to the decision of this court in Dobie v Burn International Security Services (UK) Ltd. [1985] 1 W.L.R. 42 in arguing that that was not inevitable. In Dobie where there had been a misdirection by the Tribunal, Sir John Donaldson M.R. said at p. 49:[83]"Once you direct that there has been a misdirection, and particularly that there has been an express misdirection of law, the next question to be asked is not whether the conclusion of the tribunal is plainly wrong, but whether it is plainly an unarguably right notwithstanding that misdirection. It is only if it is plainly and unarguably right notwithstanding the misdirection that the decision can stand. If the conclusion was wrong or might have been wrong, then it is for an appellate tribunal to remit the case to the only tribunal which is charged with making findings of fact."[84]Mr. Linden submitted that in the present case there is no reason to think that the sacking of Mr. Leggett had, or might have had, any effect whatsoever on the outcome of the case, and said that in those circumstances the appeal should be dismissed.[85]Mr. Roe contended that this court could not be certain that if Mr. Leggett had been allowed to continue, the outcome would have been the same. He referred us to R.v Leicester JJ., ex p.Barrow [1991] 2 Q.B. 260 at p. 290 where Lord Donaldson M.R., in quashing an order because of procedural unfairness, said:[86]"I cannot be sure that the applicants were not prejudiced."[87]Mr. Roe also referred us to R. v Cheshire County Council, ex p. C [1998] E.L.R. 66. In that case the day before a hearing before a Special Educational Needs Tribunal the expert, who was to represent a parent as well as give evidence, went ill, but the tribunal refused the parent an adjournment. The parent had the statutory right to be represented. In judicial review proceedings, Sedley J. referred to the unqualified right of the parent to be represented and held that fairness had required the tribunal to allow an adjournment.[88]Both these cases are distinguishable on their facts. In ex p. Barrow a McKenzie friend had wrongly been excluded and so there could have been points taken with the friend's assistance which were not taken. In the present case Mr. Leggett remained assisting Mrs. Bache throughout the remainder of the proceedings. In ex p.C the intended representative was also an intended witness and his evidence was not heard. In the present case there does not appear to have been any evidence which was not given which might have been given. Mr. Leggett was specifically allowed to prompt Mrs. Bache in reexamination. No witness was not called who might have been called. Mr. Leggett's written prepared questions were made available to Mrs. Bache and he was at hand to supplement or clarify them. He helped prepare the extensive written closing submissions for Mrs. Bache. I would add this. The Tribunal had had the opportunity to hear and see Mr. Leggett acting for Mrs. Bache and found that he was not assisting. It had also seen Mrs. Bache both give evidence and also cross-examine, and in the light of that it decided to sack Mr. Leggett. Quite clearly it formed the view that she could do better than he could in prosecuting her case. There is no reason whatever to think that if he had continued to act for Mrs. Bache, as he would have done but for his sacking, it would have made the slightest difference to the evidence given by either party or to the submissions made by or on behalf of each. The case was one which was always going to be extremely difficult for Mrs. Bache to win, and Ferris J. has set out in his judgment the relevant facts. In the circumstances despite the fact that Mrs. Bache was wrongly deprived of her representative, I see no justification for giving her a second bite of the cherry so many years after the relevant events. I am satisfied that the Tribunal's error had no effect on the outcome of the case.[89]For these reasons, although differing from the EAT's reasoning, I would dismiss this appeal.

LORD JUSTICE MUMMERY:

[91]I agree. I also agree with the judgment of Ferris J. which I have read in draft. The Employment Tribunal made an error of law in the course of hearing the proceedings brought by Mrs Bache against the Council. For the reasons stated by Peter Gibson LJ the Tribunal had no power to dismiss Mr Leggett as Mrs Bache's representative. Mrs Bache therefore had grounds for appealing against the decision of the Tribunal rejecting her claim for unfair dismissal by the Council. It does not follow, however, that her appeal should have been allowed by the Employment Appeal Tribunal or that it should be allowed by this court by an order remitting the case to the Employment Tribunal for rehearing.[92]I would dismiss the appeal for the same reasons as Peter Gibson LJ . I would add the following general comments in view of the particular difficulties sometimes encountered by Tribunals in hearing cases conducted by lay representatives as well as by parties acting in person.[93](1) At the hearing the Tribunal must follow a procedure which is fair to both sides. It must normally allow each party to call relevant evidence, to ask relevant questions of the other side's witnesses and to make relevant submissions on the evidence and the law.[94](2) The Tribunal is responsible for the fair conduct of the hearing. It is in control. Neither the parties nor their representatives are in control of the hearing.[95](3) Procedural fairness applies to the conduct of all those involved in the hearing. Just as the Tribunal is under a duty to behave fairly, so are the parties and their representatives. The Tribunal is accordingly entitled to require the parties and their representatives to act in a fair and reasonable way in the presentation of their evidence, in challenging the other side's evidence and in making submissions. The rulings of the Tribunal on what is and is not relevant and on what is the fair and appropriate procedure ought to be respected even by a party and his representative who do not agree with a ruling. If the party and his representative disagree with a ruling an appeal lies against it if the Tribunal has made an error of law.[96](4) A Tribunal makes an error of law in its procedural rulings if it either has no power to make the ruling or if, in the exercise of its discretion, it makes a ruling which is plainly wrong in the sense that no Tribunal properly instructed could have made that ruling.[97](5) Even if the Appeal Tribunal or the Court of Appeal find that a ruling has been made in error of law it does not follow that the appeal should be allowed and that the case should be reheard by the Tribunal in whole or in part. This is not to diminish the importance of procedural fairness: it is as important in many ways as the application of the substantive law to the facts of the case. But the response to the finding of an error of law in procedure should be proportionate. If the Appeal Tribunal is sure that the result of the case is unarguably right and that the outcome would have been the same, even if the error of procedure had not occurred, it would be unnecessary, unjust and disproportionate to remit the case to the Tribunal for a rehearing. There are no good grounds for ordering a rehearing of this case.[99]The facts relating to the course of the hearing of this case in the Industrial Tribunal and the Employment Appeal Tribunal have been fully stated in the judgment of Peter Gibson LJ and I will not set them out again. As my lord has said these facts give rise to four questions. I wish to add something of my own on the first and fourth of these.[100](1) Does an Employment Tribunal have power to prevent a representative chosen by a party from acting for that party?[101]In my view there is a clear distinction between the right of a party to proceedings before the Tribunal to select a person who is to represent him in those proceedings and the power of the Tribunal to regulate the conduct of that representative in the performance of his task. The first matter is governed by s. 6(1) of the Employment Tribunal Act 1996, the terms of which my lord has set out. These give a person appearing before a Tribunal the right to be represented by, amongst other persons. "Any other person whom he desires to represent him". Although the Secretary of State has power to make regulations which include provisions as to the persons entitled to appear and to be heard on behalf of parties to the proceedings, I cannot regard Regulation 9(1) and (2) of the Procedure Regulations as doing any such thing. My reasons for this conclusion are those which Peter Gibson LJ has given. It was not suggested that any other regulation has this effect. Section 6(1) therefore stands alone and gives a party an unqualified right, if he so chooses, to be represented not only by a person within paragraph (a) or (b) of that Section but by any other person whom he desires to represent him.[102]I consider that Regulation 9(1) and (2) are directed to the second matter. They give the Tribunal wide powers to control the proceedings before it, including the power to control the conduct of any representative of a party (regardless of which of the paragraphs of Section 6(1) describe that representative) or, indeed, of the party himself if he chooses to represent himself. As to the scope of these provisions I agree with what was said by the Employment Appeal Tribunal (Kirkwood J presiding) in Zurich Insurance Co. v Gulson [1998] IRLR 118 at paragraphs 13, 14 and 15. In particular the following statement appears to me to be entirely correct:[103]"[I]t is in no sense incumbent on the tribunal and forms no part of the discretion it has, to allow lengthy and detailed cross-examination on matters that do not appear to the tribunal to be of assistance to it, however enthusiastically the advocate endeavours to pursue that line."[104]This must apply equally to other forms of conduct which involve irrelevance or prolixity or which are otherwise disruptive of the proceedings.[105]There being a distinction between the two matters which I identified earlier, the answer to the question under consideration must depend on whether the act of the Tribunal in this case was one which denied to Mrs. Bache her right to be represented by a person of her choice or merely one which controlled the activities of Mr. Leggett in acting as her chosen representative. In my judgment there can be no doubt that it was the first of these. One need look no further than the Tribunal's own note of what it did, with its reference to the Tribunal agreeing "to `sack' Leggett". This it had no power to do, any more than, if Mrs. Bache had instructed counsel or a solicitor to represent her, it would have had power to withdraw her instructions from him.[106]It follows that I agree that the second question does not arise. On the third question I agree entirely with Peter Gibson LJ and do not wish to add anything.[107](4) Was the decision of the Tribunal plainly and unarguably right so that the decision should stand, or should it be remitted for a rehearing?[108]In my judgment the three authorities referred to by Peter Gibson LJ (Dobie v Burn International Security Services (UK) Ltd [1985] 1WLR 42, R v Leicester JJ ex parte Barrow [1991] 2 QB 260 and R v Cheshire County Council ex parte C [1998] ELR 66) speak with a single voice on the principle which is to be applied. Where a tribunal has misdirected itself on a matter of law the case must be remitted unless the tribunal's decision is plainly and unarguably right. As Lord Donaldson put it in Dobie (at page 49):[109]"It is only if it is plainly and unarguably right notwithstanding the misdirection that the decision can stand. If the conclusion was wrong or might have been wrong, then it is for an appellate tribunal to remit the case to the only tribunal which is charged with making findings of fact."[110]As to the basis of the decision of the Tribunal in this case we have nothing to go on except the Extended Reasons of the Tribunal sent to the parties on 14th March 1997. The question which the Tribunal had to decide was whether Mrs. Bache had resigned from her employment or whether, as Mrs. Bache contended, she had been constructively dismissed by her employer, Essex County Council.[111]Mrs. Bache's claim that she had been constructively dismissed rested on the contention that she had unjustly been subjected to disciplinary procedures as the result of two separate complaints about her conduct as a care assistant. The first complaint, by a Miss P., had led to a disciplinary hearing on 28th November 1994. Mrs. Bache was represented by Mr. Leggett. The result of the hearing was that the complaint was held to be well-founded. Mrs. Bache was given a first and final written warning which was to remain on her file for two years. Mrs. Bache appealed from this decision under the Council's internal disciplinary machinery. The appeal was not heard until 9th June 1995, largely it seems as the result of postponements requested by Mrs. Bache. Its result was a partial success for Mrs. Bache, in that it was decided that the first and final warning was to remain on her file for twelve months only.[112]While the procedures in respect of the complaint by Miss P were in progress the County Council received another complaint, this time from a Mrs. T. The Council decided that it would be unreasonable to proceed on this complaint until the appeal in relation to Miss P's complaint had been concluded. Even after that had happened the new disciplinary hearing was subject to a number of postponements at Mrs. Bache's request. It finally took place on 10th October 1995, Mrs. Bache once again being represented by Mr. Leggett. The outcome was that part of the complaint against Mrs. Bache was held to be well-founded and it was decided that the first and final warning on Mrs. Bache's file should be extended for a further period of twelve months. Mrs. Bache appealed against this decision, but before the appeal was heard further events occurred.[113]While the complaints against Mrs. Bache were pending she had been suspended from duty by the Council. The suspension came to an end when the complaint of Mrs. T was dealt with at the hearing on 10th October 1995. The Council then invited Mrs. Bache to resume her duties. This was followed by an exchange of correspondence which culminated in a letter dated 9th November 1995 in which Mrs. Bache set out the conditons on which she was willing to be reinstated. These were that[114]"The allegations and charges against me dropped, a warning removed and all employees and work colleagues informed that the matter has been resolved with no implications against my character and reputation"[115]When the Council stated that it would not accept these conditions Mrs. Bache wrote a letter of resignation on 15th November 1995. She was urged by the Council to reconsider her position but she declined to withdraw her resignation. Her appeal against the decision made on 10th October 1995 was not proceeded with. Her application to the Industrial Tribunal, made on the basis that she had been constructively dismissed, was made on 1st February 1996. The hearing before the Tribunal took place on 24th and 25th October and 2nd December 1996. On the latter date the application was dismissed.[116]The facts which I have summarised are, as I indicated, taken from the Tribunal's Extended Reasons. It appears from those reasons that the Tribunal gave very careful consideration to the County Council's disciplinary procedures. The primary facts on which it relied in this respect are those which must have emerged from the Council's files. Little, if anything, seems to have turned on oral evidence heard by the Tribunal. In paragraph 13 of its Reasons the Tribunal stated:[117]"13. It is right to make a point at this stage that the various minutes of the meetings that have been taken in the case have been challenged by the applicant. The Tribunal took the view that the minutes accurately recorded the material they purport to record and are not a distortion in any way of what was said, nor was any material omitted. There may have been minor differences between the notes taken by Mr. Leggett and the notes taken at the hearings, but these were not material to the outcome. The Tribunal have every confidence in being able to rely on all of the records of the meetings in arriving at its decision."[118]It was not suggested before us that the Tribunal would or might have made a different decision on this important point if Mr. Leggett had been allowed to continue to represent Mrs. Bache.[119]The conclusion of the Tribunal was to the effect that the County Council had fully complied with the requirements of good industrial practice in its handling of the two complaints and in dealing with Mrs. Bache. The Tribunal was somewhat concerned with the length of the period during which Mrs. Bache had been suspended while disciplinary proceedings were pending against her, but it concluded that the Council was not to be blamed for this, most of it having resulted from the Council's efforts to accommodate the requests of Mrs. Bache. The Tribunal clearly did not think it unreasonable of the Council to have refused to accede to the demands of Mrs. Bache that the allegations against her be abandoned or withdrawn. It observed that Miss P's complaint had been found to be established in the first appeal process and that Mrs. T's complaint was awaiting the outcome of the second appeal.[120]I have felt it necessary to examine the Tribunal's decision in some detail in view of the need to be satisfied, if the case is not to be remitted, that the decision is plainly and unarguably right notwithstanding the Tribunal's unjustified refusal to allow Mr. Leggett to continue to represent Mrs. Bache. Having considered the matter with care I have reached the conclusion that, even on the assumption (which may be unjustified) that Mr. Leggett would have made an appreciably better job of representing Mrs. Bache than she did herself, there is no significant part of the Tribunal's decision which would have been different.[121]I am thus satisfied that the decision of the Tribunal in this case is plainly and unarguably right and that this appeal must be dismissed.

Order

[122]Appeal dismissed - no costs.

Cited in 2 later judgments