Cavendish v Greater Manchester (South) Ltd (t/a Stagecoach Manchester) [2005] EWCA Civ 1555

[2005] EWCA Civ 1555Case No A2/2005/1459
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HIS HONOUR JUDGE McMULLEN QC
EMPLOYMENT APPEAL TRIBUNAL
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/12/2005
Before
LORD JUSTICE WALL
Between
EDMUND EDWARD CAVENDISHAppellantGREATER MANCHESTER (SOUTH) LIMITED T/A STAGECOACH MANCHESTERRespondent
The Appellant Appeared in Person for in person for The Respondent did not appear and was not representedHearing Hearing date : 14th October 2005
JudgmentLord Justice Wall :
[1]From 31 July 1998 until 10 August 2001, the appellant, Mr. Edmund Edward Cavendish, was employed as a bus driver by the respondent, Greater Manchester (South) Limited, trading as Stagecoach Manchester (Stagecoach). On 15 August 2001, Mr. Cavendish completed a form IT1 addressed to the Employment Tribunal claiming that he had been unfairly dismissed by Stagecoach. The manner in which he advanced the claim was as follows: - “In late 1998 and early 1999 concerned at the lapses in safety I submitted a number of memos to my employer Stagecoach Buses in Manchester. Management refused to discuss the matter or change existing practices leading to the lapses. This meant that buses with lethal faults were allowed on the road. After this, I was victimised when a driving instructor stating he was acting on behalf of management suspended me as a mentor driver, (looking after new drivers). I have to date not had a satisfactory explanation and have been denied all relevant paperwork. I appealed many times for the relevant paperwork and as a result was further victimised by both management and union. I was threatened many times by management and union that the matter was dead and buried and that there would be trouble if I persisted with my request. Shortly after I had £15.00 stolen from the box into which I paid the fares collected in my job as a bus driver. Once again management refused point blank to even discuss the matter and the threats continued quite openly both from management and union. The level of threats was such that I felt unsafe and went off duty sick. To date management has refused point blank, other than state that in relation to safety that the Company complies with the law. Management will not accept responsibility for the lost money and despite many requests refused to interview witnesses to the threats against me. The end result was a systematic campaign of threats and abuse resulting in long periods off duty due to stress. I have been dismissed as a result.”[2]Mr. Cavendish’s claim for unfair dismissal was heard by the Employment Tribunal held at Manchester (the Tribunal) over 9 days on 22-26 November 2004 and on 17 to 19 and 21 January 2005. The members of the Tribunal then spent two days in chambers considering their decision (3 and 4 February 2005). Their reserved judgment is dated 1 March 2005 and was sent to the parties on the following day.[3]The Tribunal rejected Mr. Cavendish’s claim that his dismissal had been automatically unfair because he had been dismissed by reason of making a protected disclosure as provided by section 103(A) of the Employment Rights Act 1996 (ERA 1996). However, the Tribunal decided that he had, nevertheless, been unfairly dismissed, and it went on to give the following directions: - “3. Any compensatory award, to be assessed, shall be limited to losses of earnings and any other benefits for a period of 4 months on the grounds that the claimant would have been dismissed by the respondent, in any event, within 4 months of the effective date of termination of his contract of employment. 4. Neither the basic nor compensatory award shall be reduced as a consequence of conduct of the claimant. 5. The remaining issues relating to remedy are adjourned to be considered on 30 March 2005 and 1 April 2005.”[4]Mr. Cavendish was dissatisfied with the order made by the Tribunal, and he appealed to the Employment Appeal Tribunal (the EAT). On 29 June 2005, the EAT, in a constitution chaired by HH Judge McMullen QC dismissed his appeal, and refused him permission to appeal to this court. His oral application for permission to appeal to this court came before me, sitting alone, on the afternoon of 14 October 2005. As Mr. Cavendish had asked for an hour rather than the usual 30 minutes to argue his application, and as the case is not straightforward, I decided, having heard Mr. Cavendish, that I would reserve judgment. I apologise to Mr. Cavendish for the delay in handing this judgment down. It has, however, allowed me the opportunity to re-read the papers, including the skeleton argument which Mr. Cavendish read to me on 14 October 2005.[5]According to the judgment of the EAT on 29 June 2005, Mr. Cavendish was subsequently awarded the sum of £3,562.17 in relation to the unfair dismissal found by the Tribunal, but was also ordered to pay costs in the sum of £1,250. According to the EAT the balance due to Mr. Cavendish had been paid by Stagecoach, although Mr. Cavendish was appealing against the remedy judgment. Like the EAT, I am only concerned with the liability hearing.[6]Although Mr. Cavendish’s application is for permission to appeal against the EAT’s decision, the question is whether or not the Tribunal made an error of law. If, arguably, it did; and if, arguably, that error was not corrected by the EAT then Mr. Cavendish is entitled to permission to appeal to this court. I stress the words “error of law”. It is the function of the Tribunal, not of the EAT or this court, to make findings of fact. Provided that there was material on which the Tribunal could properly make findings, there is no basis upon which this court can interfere with them: the question is whether or not the Tribunal has applied the law properly to the facts as found. I therefore need to start by looking at the decision of the Tribunal.

The decision of the Tribunal

[7]Mr. Cavendish appeared in person before the Tribunal. The Respondent was represented by counsel. The decision of the Tribunal runs to some 36 pages of single-spaced typed A4. I have already stated the length of the hearing. The Tribunal identified the issues it had to decide at paragraph 6 of its judgment: - “6.1 It being accepted that the claimant was dismissed by the respondent, what was the reason or the principal reason for the dismissal? Firstly, was the reason or the principal reason that the claimant had made a protected disclosure? For that purpose it was necessary to consider whether a qualifying disclosure had been made to the claimant’s employer, the respondent, as alleged and whether, if so, the making of such a qualifying disclosure was the reason or principal reason for his dismissal. 6.2 If the principal reason for the dismissal was not that the claimant had made a protected disclosure, has the respondent satisfied the Tribunal that the reason was a potentially fair one and fell within the category of “conduct” as alleged, in the final analysis, by the respondent. 6.3 If the reason for the dismissal was a potentially fair one whether it was reasonable or unreasonable to treat that reason as a sufficient one for size and administrative resources of the respondent’s undertaking and in accordance with equity and the substantial merits of the case. It was necessary in this case to consider whether the procedures adopted by the respondent were proper and fair ones. 6.4 If the dismissal was unfair should either a basic or compensatory award be reduced or extinguished on the grounds of the conduct of the claimant. Further should any compensatory award be reduced or extinguished on the grounds that it would be just and equitable to do so on the ground that, the claimant would, or might, have been dismissed at a later stage in any event had he not been dismissed when he was.”[8]The Tribunal made extensive and detailed findings of fact over 66 paragraphs. It would not, I think, be sensible to attempt to set out each an every finding. However, the first seven paragraphs (8.1 to 8.7) set the scene and I will recite them in full. They read as follows: - “8.1 The respondent is a company which provides public transport services in the Great Manchester area including the provision of public service buses. The Headquarters of the respondent are based in Perth and its regional Headquarters are in Stockport. 8.2 On the 31st July 1998 the claimant was employed by the respondent as a bus driver. He commenced work from their Hyde Road depot in Manchester. He was a member of the Transport and General Workers Union (“T&G”). 8.3 In December 1998 and March 1999 the claimant submitted two reports at his place of work in respect of the roadworthiness of two buses he had been required to drive. In the first report he complained that the near side tyre of the vehicle was devoid of any tread for three quarters of the width of the wheel and the nearside head-lamp and front offside side light were not working. He sent his report form to the Assistant Operations Manager. The Tribunal did not have the advantage of seeing this report. The claimant alleged that this was because the respondent had deliberately destroyed this document. In correspondence the subsequent year, to Mr Brian Souter, the Chairman of the respondent, the claimant stated that he had referred to the risk of corporate manslaughter charges in this report. 8.4 In March 1999 the claimant submitted his second report. He complained that the handbrake on a bus would not operate until after the lapse of several seconds and the indicator warning lights on the dashboard were not working. This further report was also not in evidence before the Tribunal. The claimant alleged that this report had been intentionally destroyed by the respondent. We were not satisfied that it was reasonable to draw this inference. Many months had elapsed between the submission of these two reports to the management at Hyde Road and the time when the significance of their contents would have been apparent. Again, in subsequent correspondence the claimant said he had drawn attention to the risk of corporate manslaughter in this report. 8.5 In March 1999, the claimant submitted a third report which was produced in evidence. That form is headed “unroadworthy vehicles”. It described the two earlier vehicles which the claimant had reported as defective. It concludes “these faults are a danger to drivers, passengers and other road users”. We are quite satisfied that this and the earlier reports were a genuine attempt on the part of the claimant to draw to the attention of the local management issues of health and safety. In the later correspondence to Mr Souter the claimant described how he had identified “serious life threatening faults” in this report; but this reference to potentially lethal faults was new and was not quite how the claimant had couched his concerns. There was no reference to “corporate manslaughter”, which might have been expected, if it had been mentioned twice, in separate earlier reports about the same subject matter. An element of stronger criticism might be understandable, when, out of frustration an employee is trying to drive home his concerns which had been ignored. As will become apparent, however, the exaggeration of these matters played a small part in a much wider agenda. 8.6 The inclusion of the third report in evidence somewhat undermines the accusation of the claimant that the first two had been destroyed by the respondent. Had the respondent wished to wipe away all records of the concerns the claimant had raised, this third report would never have seen the light of day. 8.7 In April 1999 a 4 page report was submitted by the claimant to the Assistant Operations Manager, Mr Iceley. A copy is in our bundle. He drew attention to the fact that there appeared to be no point in reporting faults as such reports were not acted upon. There is no evidence that any response to the 4 page report of April 1999 was received by the claimant.”[9]The Tribunal found, correctly in my judgment, that the reports written by Mr. Cavendish and identified in these paragraphs were “qualifying disclosures” within ERA 1996, section 43B(1)(d): - see paragraph 11.1 in section 11 of its reasons. The question for the Tribunal, accordingly, was whether or not Mr. Cavendish had been dismissed because he had made those disclosures. This is a point to which I will return.[10]The Tribunal then records (paragraphs 8.8 to 8.12) that in April or May 1999, Mr. Cavendish was summarily discharged from being a “mentor driver” by the senior driving instructor at his depot, following an informal complaint by an inspector (who happened to be travelling home on a bus driven by Mr. Cavendish) that the latter had braked too harshly. Mr. Cavendish complained about his treatment. The Tribunal agreed with most of the complaints Mr. Cavendish made. It took the view that a meeting convened on 13 October 1999 to deal with the complaint was unsatisfactory, and although Mr. Cavendish eventually received an apology, the Tribunal agreed with him that his criticisms of the Respondent’s conduct towards him were far from trivial and were worthy of a serious investigation and considered response.[11]The next difficulty arose on 19 October 1999, when £15 in notes, which represented payments for fares received by Mr. Cavendish went missing from the box in the depot where such funds were placed. Neither the Operations manager nor his assistant addressed Mr. Cavendish’s concerns as to what had happened to the money. Mr. Cavendish then made a formal complaint about the incident. This appears to have led to some acrimonious correspondence (8.14 to 8.18). Paragraphs 8.19 and 8.20 deal with difficulties Mr. Cavendish was having with his own union.[12]Thereafter, the Tribunal records in meticulous detail the events which occurred as Mr. Cavendish sought to have his grievances dealt with by Stagecoach. Many of the facts found by the Tribunal reflect adversely on Stagecoach and on its procedures. However, what becomes apparent as time passes is that Mr. Cavendish becomes increasingly disillusioned about the manner in which he perceives he is being treated, and the language in which he responds becomes increasingly intemperate. By the time he appeared before me, much of his wrath was directed towards Stagecoach’s personnel manager, Mrs. June Ashton, to whom the question of Mr. Cavendish’s grievances were handed in order for them to be dealt with under Stagecoach’s grievance procedures. He regularly made reference to her in his skeleton argument in the following terms:
“Mrs, let men women and children die for profit wannabe serial killer cum serial perjurer with the approval of the judiciary Ashton”
. Whatever Mrs. Ashton’s faults in her dealings with Mr. Cavendish, it is difficult to see how he can reasonably perceive her either as wanting to allow women and children to die for profit, or as wishing to be a serial killer.[13]The Tribunal did not share Mr. Cavendish’s perception of Mrs. Ashton. In paragraph 8.22, the Tribunal stated: - “8.2 This mistrust on the part of the claimant led him subsequently to accuse Mrs Ashton of bad faith and dishonesty and to say she was unfit to continue conducting the grievance procedures. This was unwarranted, unreasonable and without foundation. The level of anger and despair felt by the claimant following the meeting with Mr Walford is plain from this letter. He expressed the view that he had “been singled out for a vicious campaign of harassment, threats and intimidation”, that he had been threatened with disciplinary procedures if he criticised management and, “I will eventually be sacked”.”[14]A number of the findings made by the Tribunal reflect credit on neither party. For example, Stagecoach’s notes of a meeting held on 23 December 1999 “records a sequence of events which badly reflect upon the management’s handling of events”. At the same time, the Tribunal found that the existence of such a record “further undermines (Mr. Cavendish’s) wholesale attack on the authenticity of documents which he claims have been created or destroyed to advance (Stagecoach’s) cause”.[15]The Tribunal summarised the position at the end of 1999 in paragraphs 8.23 and 8.24 of its reasons: - “8.23 Mrs Ashton wrote to the claimant on 30 December 1999 to deal with the accusation that she had acted improperly and unprofessionally. She set out the means by which she had sought to achieve a fair hearing of the grievance which was considered outside and apart from the Hyde Road depot management. She also expressed concern about time lag and made an offer to have an informal discussion with the claimant outside the context of the formal grievance procedure. She noted the upset and disturbance felt by the claimant about a variety of issues and expressed the view that it would not be possible to address those by means of correspondence. This letter was a conciliatory and considerate offer to assist the claimant who was becoming increasingly frustrated with the management of the respondent and his union. To this offer Mrs Ashton received no reply at all. 8.24 From this point the claimant became embroiled in correspondence with both his union and management in respect of his displeasure at the way he had been treated. In spite of the understandable frustration at the way Mr Walford and the managers at Hyde Road had dealt with affairs there was no good reason the claimant should not have sat down with Mrs Ashton to address his problems. Amongst the correspondence to which we have alluded was a letter to the General Secretary of the T & G, Mr Bill Morris. In that letter the claimant referred to “T & G corruption” and the outrages he attributed to the union officials at the respondent’s premises, including the removal of his status as a mentor driver. This is the first point at which the claimant expressed any connection between the Quigg incident and his dissatisfaction with the union. We find the contents of this letter important and informative as to the sequence of events and how the claimant perceived his concerns. It is noteworthy that in spite of the many matters he raised there was no reference to concerns about health and safety risks or dangers to the public and staff of the respondent as a consequence of unroadworthy vehicles. There was reference to no other matter which the claimant alleged constituted one of the qualifying disclosures which caused his dismissal.”[16]I do not propose to attempt to summarise the detail of the Tribunal’s findings in relation to the events of 2000. I will, however, identify some dates. Mr. Cavendish was signed off work through ill-health from 24 January to 5 June 2000, the cause being stress due to the interaction between Mr. Cavendish, Stagecoach and the union. Stagecoach’s medical officer observed on 11 April 2000 that he could see no change in Mr. Cavendish’s stress until matters had moved forward.[17]There was correspondence between Mr. Cavendish and various members of Stagecoach’s management. On 27 February 2000, Mr. Cavendish wrote to the Stagecoach chairman making a number of complaints, some of which related to the condition of vehicles which employees of Stagecoach were required to drive. The Tribunal records that there was no response to that letter.[18]There were also a number of counselling meetings. In relation to these, the Tribunal found: - “8.32 It is apparent from these meetings that the discussions involved the concerns which the claimant had raised about the Hyde Park management. We accept the record of the meeting of 16 March 2000 as accurate, albeit it is not signed. There were transcripts of the other two meetings which were made from tape recordings of the claimant. Although Mr McCluggage, on behalf of the respondent, questioned the veracity and reliability of parts of these transcripts we were prepared to accept that they were accurate. In the first and second meetings the only references to safety concerned the claimant’s fears following the threats of intimidation and violence he said he had received from the union. These incidents never formed the basis for one of the qualifying disclosures for which the claimant said he had been unfairly dismissed. In the meeting of 22 March 2000 there was a reference to an attempt to put two vehicles off the road and submit condition cards and complaints of dangerous life threatening defects on vehicles. The claimant said Mr Wilson had refused to speak to him about the matters and took it as a personal insult. However it is noteworthy that this part of the discussion comprises only two thirds of one page of a 23 page transcript. The vast majority of the three counselling meetings concerned the claimant’s concerns about the union and the management in respect of matters other than health and safety.”[19]The Tribunal then records that following the final counselling meeting on 22 May 2000, Mr. Cavendish agreed to re-enter the grievance procedure. He had instructed a solicitor, a Mr. Bradley. The Tribunal records that Mr. Bradley wrote to the Stagecoach chairman on 31 May listing a number of concerns Mr. Cavendish had about his dealings with the management at Hyde Road. The Tribunal records: - “8.34 The first bullet point referred to health and safety issues. It stated “Our client has alerted Stagecoach Manchester to various breaches of health and safety as a responsible employee in accordance with Stagecoach Manchester’s health and safety policy statement dated April 1998. All accounts are potentially fatal vehicle faults which have been ignored and there has been refusal to take the vehicles out of service until necessary repairs inspections have taken place.” The solicitor added a further eight bullet points covering the complaints the claimant had in relation to Mr Quigg, the handling of his complaint, his dispute with the union and the loss of his money. A full reply to this letter was sent in a letter of 21 June 2000 from the Group Chief Executive. He stated that the allegations were to be taken seriously and would be investigated but that the respondent had to operate within its agreed grievance procedures. He therefore suggested that in order to move forward the claimant should enter the formal grievance procedure which the respondent had been endeavouring to commence since November 1999. He enclosed a copy of the grievance procedure.”[20]It would, however, seem that Mr. Cavendish did not have confidence in any investigation by Stagecoach, as the Tribunal records in paragraph 8.35 of its reasons:
“8.35 On 26 June 2000 the claimant wrote to the new Managing Director at Stockport, Mr Wileman. He referred to the fact that Stagecoach management had put buses on the road with life threatening faults together with “management sponsored theft and thuggery” and a comment in bold “Why, for instance, are you prepared to allow the union to continue stealing money from the post box?”
He added, “If you are still prepared to turn a blind eye to theft then what conclusion can the investigation reach?””[21]On 13 July 2000, the Tribunal records that there was a meeting at Mr. Bradley’s offices designed to “thrash out the concerns (Mr. Cavendish) had to enable the grievance investigation and hearing to take place”. There was no record of this meeting available to the Tribunal, which accepted Mrs. Ashton’s summary of it. In paragraph 8.39 of the reasons, the Tribunal records: - “8.39 It was agreed that three issues would be investigated. Firstly, the alleged conduct of Mr Wilson in failing to supply the appropriate driver activity reports which were requested by the claimant and Mr Wilson’s failure to interview two witnesses in respect of the remarks of Mr Quigg. Secondly, the meeting of 23 December 1999 between Mr Walford and Mr Wilson and the claimant. Thirdly, the alleged theft of money. We do not accept the claimant’s account of this meeting notwithstanding we were handicapped by reason of not having any records. We find that the claimant by this stage had become completely obsessed about the issues which he was raising. They had been making him ill and he was finding it difficult to have any rational and sensible conversation about the issues without becoming inflamed into an angry emotional state. In this frame of mind it would be difficult for the claimant to accept any alternative point of view which was put to him. It is noteworthy that Mr Bradley wrote to the claimant on the same day saying “We refer to our lengthy exploratory meeting with Mrs Ashton and Mr Pike from Stagecoach today and were pleased to note that some progress was being made in the matter…we understand that Stagecoach will now arrange an investigatory interview as soon as possible whereby you will be provided with an agenda for the meeting including the various components of your complaint such as against Mr Wilson, against the union, particularly with Llewellyn and Brown in relation to the alleged theft of your money. You will of course be allowed to call witnesses and put questions to them.” These remarks support Mrs Ashton’s account of the meeting. Mr Bradley cautioned the claimant to “maintain an open mind to the procedure and not foretell the outcome before it has reached its natural conclusion. This is the only way in which a resolution can be achieved.”[22]An indication that the Tribunal’s assessment of Mr. Cavendish is likely to be correct is given by what the Tribunal records in paragraph 8.40 of the reasons:
“8.40 At the end of the meeting the claimant gave Mrs Ashton a 50 page statement which detailed in extensive length his complaints about the respondent. Three pages of this 50 page document related to health and safety issues, alleged qualifying disclosures. The remainder concerned his dissatisfaction with the management and the union and the other incidents such as the Quigg incident and the money incident. As with the other correspondence, by this stage serious allegations were made by the claimant in extreme and often insulting language. After the meeting the claimant added a further five pages extending it to 55 pages in total. That entry commenced with a description of “Mrs (Lavria-Beria) Ashton”
. We were informed by the claimant that Lavria-Beria was a Nazi concentration camp guard. The claimant’s description of the meeting was that “over the three hours far from being a meeting it turned out to the hearing itself with Ashton blindly defending and speaking for those against whom I have complained including herself, not to mention the thugs and thieves. As is the norm in order to cover the endemic failures of Stagecoach Manchester management she admitted nothing and denied everything … in short Ashton told a complete and utter pack of professional lies from beginning to end.” He then repeated his complaints. This was the frame of mind in which the claimant considered the handling of his grievance by Mrs Ashton. ”[23]Mr. Cavendish wrote in similarly offensive terms to Mr. Souter on 31 July 2000. The Tribunal, having summarised the letter, commented: - “8.41 It was plain by this stage that the claimant had no faith whatsoever in the grievance procedure and it is clear he would not proceed with the course agreed at the meeting of 13 July 2000.”[24]The Tribunal also records prescient advice given to Mr. Cavendish by his solicitors on 31 August 2000. The Tribunal was able to see and record this, as Mr. Cavendish had waived privilege in relation to communication between himself and Mr. Bradley. The Tribunal records: - “8.42 It is very telling that the claimant’s solicitor, Mr Bradley, wrote to him distancing himself from the comments the claimant had made about the meeting on 13 July 2000 and the remarks about Mrs Ashton. In his letter of 21 August 2000, in tactful phraseology, Mr Bradley invited the claimant to “reconsider [his] submission” that Mrs Ashton was “ready with what only can be described as a complete and utter pack of lies from beginning to end”. Mr Bradley referred to a note he had to the effect that the claimant had said he believed Mrs Ashton when she challenged him about making an allegation against her. Mr Bradley advised the claimant to enter the process with an open mind. He drew attention to the claimant’s correspondence with Mr Souter saying that, “the process is an exercise in futility” and that he had no faith whatsoever in the company. Mr Bradley pointed out that in saying such things the claimant was setting up obstacles to the procedure progressing. He went on to caution the claimant, “You should note with the utmost importance that the fundamental basis of the contract between the employer and employee is based on trust and confidence. The contents of your imputations could be construed by the company as sufficiently serious to determine your contract of employment. Please note that this letter is not in any way criticising you personally in your pursuit of justice as the writer is well aware that you feel very strongly about this case but it is incumbent upon us to point out to you that the methods you have employed to achieve this have compromised the company’s ability to undertake any form of satisfactory investigation and more importantly could endanger your employment with the company. ”[25]Mr. Cavendish’s evidence about this letter was that Mr. Bradley had been bribed by Stagecoach. The Tribunal rejected that assertion as being one for which there was no evidence and which demonstrated “how entrenched and unrealistic” Mr. Cavendish’s grasp of the issues had become.[26]As the Tribunal commented in paragraph 8.44:
“8.44 Mr Bradley’s remarks proved to be prophetic. Mrs Ashton wrote to him and informed him that the claimant’s position with the company was untenable because the mutual trust and confidence implicit in any employer/employee relationship had broken down. In a letter of 15 September 2000 to Mr Bradley, Mrs Ashton described the claimant’s criticisms of her. She said that immediately after the meeting of 13 July the claimant had written to the group chairman and accused her of “lying from beginning to end, of being a professional liar and taking excuses from a “professional liar box” and of being more dishonest than the people [she] was supposed to be investigating”
. She said the actions of the claimant had made it impossible for the management to communicate with him. “The very fact that I am having to deal with this through you is testimony to that”. She concluded, “We therefore no longer wish to have Mr Cavendish in our employ”. Mrs Ashton then corresponded with Mr Bradley with a view to terminating the contract of employment of the claimant by way of a compromise agreement. The claimant had waived his legal professional privilege and so the Tribunal had the documentation which had passed between himself and his solicitor. It is plain that contrary to his solicitor’s advice the claimant refused to enter into any compromise agreement. He would have regarded that as unacceptable surrender.”[27]Stagecoach did not, however, take immediate steps to dismiss Mr. Cavendish. The Tribunal records what happened in paragraph 8.45 of its reasons: - “8.45 One might have expected the respondent thereupon to have taken proceedings to terminate the contract of employment of the claimant on the grounds of misconduct, namely the fact that he had made unjustified and serious allegations against Mrs Ashton without foundation. We are of the opinion that there would have been good grounds to dismiss the claimant at this time. This did not occur. Mrs Ashton was promoted to another position and nobody appeared to take up the reins of the claimant’s case. He had returned to work on 15 July 2000 in the capacity of the driver of a shuttle bus at another depot, in Stockport. This was not a public service vehicle but involved transporting members of staff of the respondent from one depot or premises to another. The claimant continued working in this capacity until 31 March of the following year. However he was left in a state of considerable bewilderment during the last part of the year of 2000 because he was expecting to be dismissed; his solicitors had told him that dismissal was inevitable. The claimant dispensed with the services of Mr Bradley and wrote to the RMT union for advice. It is apparent from his correspondence that he was very troubled and concerned about his fate. His fear of pending dismissal was heightened when Mr Fisher, the Operations Manager at Stockport had a conversation with him at Christmas 2000. Mr Fisher had said that he, the claimant, would be unlikely to be there when he returned after his vacation. Mr Fisher shook the claimant’s hand and wished him well. The claimant said he was very friendly. We are satisfied this was a misunderstanding. Mr Fisher expected the claimant to be moved to a different role to that of driving shuttle buses. It is equally clear to us that the claimant believed that the time had finally come for his dismissal.”[28]Mr. Cavendish returned to work in January 2001 and drove shuttle buses. There were further counselling sessions in January, February, March and July. By the time of the March meeting, the medical opinion which Stagecoach had received was to the effect that Mr. Cavendish could return to his normal duties. At paragraph 8.49, the Tribunal records what happened: - “8.49 Armed with this opinion Mr Fisher and Mr Rys-Halski had a further counselling meeting with the claimant on 23 March 2001. At that meeting, as with the previous counselling session, the claimant raised the issue as to whether he had been or was to be dismissed. This arose out of the uncertainty which had hung over him since the previous summer. It does not appear that Mr Fisher or Mr Rys-Halski understood the claimant’s concerns. Indeed Mr Fisher regarded the claimant’s response as ultimately an unwillingness on his part to undertake his duties. We accept the evidence of the claimant that this counselling meeting was terminated and resumed after a short break as a first stage disciplinary interview. The disciplinary allegation was that the claimant was unwilling to resume his contractual obligations. The claimant said that he wished to take instructions from his solicitor particularly with a view to considering whether he could drive safely. The meeting concluded without any particular resolution and the parties agreed to depart and consider what had been discussed. However, significantly, on 1 April 2001 the claimant returned to drive public service vehicle buses. It is clear that this was because of the fact that the claimant’s obligations were expressly pointed out to him in the context of a disciplinary procedure. Mr Fisher made no reference to all in his statement to the circumstances in which the claimant returned to normal duties. When the claimant put to him in cross-examination that the meeting of 23 March changed from a counselling hearing to a disciplinary hearing Mr Fisher’s response was simply that he found it hard to think that this would happen. This was not the adamant denial one might have expected. Moreover there is no record produced by the respondent at all of this meeting. This factor of itself provides fertile ground for the germination of suspicions on the part of the claimant that the respondent has been selective in respect of what records and documents it has chosen to produce. Whilst we do not accept there has been the systematic destruction and concealment of documents, which the claimant suggests, we do consider the absence of any note of this meeting to be a little too convenient for the respondent.”[29]The Tribunal records in paragraph 8.51 that in March 2001, and unbeknown to Stagecoach, Mr. Cavendish had written to the Traffic Commissioner: - “8.51 Unbeknown to the respondent, in March 2001, the claimant had written to the Traffic Commissioner enclosing a 5 page statement detailing his concerns about health and safety issues and lapses at the Manchester depots in respect of roadworthy vehicles. As a consequence of the concerns raised, the vehicle inspectorate, which carries out regular checks on all licensed operators of public service vehicles on behalf of the Traffic Commissioner, undertook a full scale unannounced investigation at the depots in Charles Street, Stockport and Hyde Road, Manchester. The visit took place on 24 and 25 April 2001. The outcome of this unannounced investigation was that the vehicle inspectorate was satisfied that there were no causes for concern. This was notified to the complainant in a letter of 24 May 2001. The claimant was hugely sceptical about this inspection. In a subsequent letter of 20 January 2003 to the Traffic Commissioner, Mrs Bell, seriously maligning her probity and integrity, he wrote “You are very much mistaken if you think that even for a second I intend to take part in a farcical whitewash enquiry designed to cover up the systematic indifference to safety to protect Bell’s future career.”[30]The Tribunal also records that on 26 April 2001, Mr. Cavendish made what appears to have been an entirely legitimate complaint about a defective door on the cab of one of the public service buses: - “8.50 The cab door would not open and as such presents a health and safety risk to the driver. Following examination by an engineer and discussions between the engineer and an inspector, the view was taken that the bus should be taken out by the claimant. There were a number of passengers waiting. Following a heated discussion with the claimant, the inspector then personally examined the cab door and acknowledged that because he could not open it the bus should be taken out of service. The claimant was plainly correct in raising this matter as a health and safety issue. He received a letter on 22 May 2001 in response to his written report complaining of the circumstances in which he was expected to drive this vehicle. An assistant engineer of the respondent agreed that the managers at the depot should have provided an alternative vehicle quickly and ensured that the vehicle with the defective door was repaired as soon as possible. He acknowledged that this did not happen on that occasion. He had raised the matter and his concerns with the engineering and depot traffic management. He concluded, “We have a duty to ensure we operate clean, safe and reliable vehicles and I strongly believe we satisfy these requirements. However on this occasion it is clear lessons need to be learned.”[31]None of the counselling sessions appears to have achieved anything. Mr Cavendish has a series of minor accidents when driving a bus and attributed this to his state of health. He did not believe he could drive safely, and signed off sick. His general practitioner diagnosed a depressive illness and prescribed medication. At the counselling session on 12 July, Mr. Cavendish was informed that a formal disciplinary interview would be arranged for the following day. Mr. Cavendish asked what he was being accused of and was simply told he was not accused of anything, but that he would be dealt with at the disciplinary hearing on the following day.[32]The Tribunal then records what happened: - “8.56 On 13 July 2001 the disciplinary hearing was postponed because the claimant did not have a union representative and wished one to be in attendance. In the letter inviting the claimant to the disciplinary interview he was provided only with the date and time. There was no specification as to what the disciplinary interview was about, how the claimant had allegedly transgressed, or what the consequences would be if there were a disciplinary finding. 8.57 The aborted disciplinary interview of 13 July 2001 was reconvened for 20 July 2001. A letter was sent to the claimant on 13 July 2001. As with the earlier letter it gave no advance information to the claimant as to what he was to address, namely his medical capacity to drive or his commission of some act of misconduct. 8.58 The disciplinary hearing was presided over by Mr D Fisher the Operations Manager at Stockport and Mr Rys-Halski in attendance. The claimant attended with Mr Knott, his RMT representative. The meeting was described as a “Stage 1 formal disciplinary interview”. Mr Rys-Halski said at the beginning of the meeting that it had been arranged because of the claimant’s non-attendance at work and he went on to advise the claimant that action up to and including dismissal was a potential outcome. It is the first notification the claimant was given of that potential consequence. It was clearly a disciplinary hearing, not an interview.”[33]The Tribunal cites from Stagecoach’s written disciplinary procedure. It is plain that this was not followed. The circumstances in which Mr. Cavendish came to be dismissed are then set out by the Tribunal in paragraph 8.60: - “8.60 During the disciplinary hearing Mr Fisher put to the claimant that following several counselling sessions the claimant had said that he felt he would be dangerous while driving his vehicle. In reply the claimant asked Mr Fisher when the company would sort out his problems which he believed were causing him stress. He made express reference to the problems he had had with the unions and management whom he said were in league with the union. Mr Knott, of the RMT, pointed out that the claimant was on medication and added that the claimant would abide by any recommendation made by the company medical officer. The claimant added that he was unable to drive whilst on medication. Perhaps surprisingly Mr Fisher then asked the claimant if he would return to work from that day. In response the claimant asked Mr Fisher if he would sort out his problems. Although the discussion was somewhat circular, Mr Knott made it clear that no action should be taken pending a referral to the company medical officer and consideration of his findings. Mr Fisher concluded that the claimant was choosing not to work. He reconvened the meeting after considering matters for a period of nearly two hours and informed the claimant that he was to be dismissed for “non-attendance at work”. He said, “The CMO does not see your situation as a medical one, and although you say you may return to work after seeing him, we again have been down this road, sorry path, before, and I view your periods of absence as unreasonable behaviour. Taking all these points into consideration, I must say I have lost confidence in your ability and willingness to carry out your duties. I note you have previously stated you feel dangerous driving, whilst driving vehicles”. The claimant was notified of his right to appeal. The claimant received written notice of termination of his contract of employment of 23 July 2001, the effective date of termination to take effect from 10 August 2001.”[34]There were two appeals by Mr. Cavendish, both of which were dismissed.[35]I have set out the facts as found by the Tribunal for a number of reasons. The first is that they strike me, coming to the case as an outsider and for the first time, as a careful and conscientious recitation of the history of the case, as the Tribunal found it to be. Secondly, as is obvious, the Tribunal had the opportunity to hear the witnesses and form its own impression of them. As I stated earlier, the facts are for the Tribunal to find. It is only if there is a serious error in the fact finding process – such as making findings of fact when there was no material on which findings could be made – that an appellate court is entitled to intervene.[36]Here there was abundant material on which the Tribunal could make findings of fact, and in so far as it made findings critical of Mr. Cavendish, he had provided a large amount of written material which corroborates the Tribunal’s findings. At the same time, the Tribunal is by no means uncritical of Stagecoach. In my judgment, the Tribunal’s findings are careful, thorough, and balanced.[37]One of the critical aspects of the Tribunal’s findings of fact is, of course, that they go to the fundamental issue in the case, namely what was the reason for Mr. Cavendish’s dismissal? Was his dismissal, as he asserted, automatically unfair pursuant to ERA section 103A? Alternatively, was it fair or unfair under ERA 1996, section 98?[38]The Tribunal set out the applicable law in paragraph 9.1 of its reasons: - “9.1 The relevant provisions of the Employment Rights Act 1996 which related to this case were sections 43(A), 43(B), 43(C), 94, 98, 103(A), 118, 122, and 123. The statutory provisions were discussed and read out to the parties. If the reason or principal reason for the claimant’s dismissal were not that he had made a protected disclosure, it was necessary to consider the principles governing a conduct dismissal; namely whether the respondent had undertaken a reasonable enquiry into the suspected misconduct and following a fair hearing formed a reasonable and honest belief in the acts of misconduct. It was not for the Tribunal to substitute its own view but to ask whether the enquiry, the belief and the decision to dismiss fell within a reasonable band of responses. In addition the principles which arose from the case of Polkey v AE Dayton Services Limited [1987] IRLR 503 were discussed. The claimant referred the Tribunal to the judgment of the Employment Appeal Tribunal in Edwards v The Governor of Hanson School [2001] IRLR 733.”[39]In my judgment, no criticism of that self-direction can be made. The Tribunal then set out the respective cases of Mr. Cavendish and Stagecoach. Its summary of Mr. Cavendish’s case runs from paragraph 10.1 to 10.7. It seems to me an entirely fair summary. Stagecoach’s case is then set out between paragraphs 10.7 and 10.10. The Tribunal then sets out its conclusions in 15 paragraphs numbered 11.1 to 11.15. It reaches two essential conclusions. They are:(1) that Mr. Cavendish was not dismissed for “whistle-blowing”; but(2) that Mr. Cavendish’s dismissal was nonetheless unfair. I hold that no reasonable employer would have conducted its disciplinary procedure in the manner found by the Tribunal. The deficiencies in the process had not been redressed by the appeals. No reasonable employer would have failed to give Mr. Cavendish an opportunity to comply with an instruction to return to work if the issue was genuinely one of conduct.[40]I do not propose to set out the reasoning of the Tribunal in full. It is, I think, sufficient for present purposes if I recite only paragraph 11.14: - “11.14 Although it was rather confused we are satisfied that the principal reason for the dismissal was one of conduct. Mr Fisher came to the belief that the claimant would refuse to comply with a reasonable instruction to return to drive buses. Although honestly held, we are not satisfied that such a belief was reasonable or that Mr Fisher had undertaken a reasonable enquiry to come to that conclusion. In our opinion, in conducting a reasonable enquiry it was necessary to spell out separately both the medical issue and the conduct issue. It was necessary to obtain up to date medical opinion upon which to make an informed decision. For all Mr Fisher knew the medication may have alleviated the stress and anxiety to an extent. The stress and anxiety and the unresolved grievances were connected. In a calmer state of mind the claimant may have been more ready to return even if his grievances were not addressed. Part of the claimant’s anxiety arose from his fear that he could not drive safely. That is why he had given up driving after his third minor accident. Again the medication may have helped his confidence. We do not consider that the claimant’s comments that he required his grievances resolving before he drove public service buses was of itself justification to dismiss without addressing the capacity issue first with the doctor. We are satisfied the decision to dismiss at this time and on this information fell outside a reasonable band of responses. The dismissal was unfair.”[41]That leads the Tribunal to the issue of remedy, and this in turn required it to consider the decision of the House of Lords in the well-known case of Polkey v AE Dayton Services Ltd [1987] IRLR 503. This case decides that even where a claimant establishes unfair dismissal, the award can be reduced or extinguished either if the claimant would, inevitably, have been dismissed had the process been fair; alternatively that the award can be reduced if the claimant, by his conduct had contributed to his own dismissal, or if the claimant would have been dismissed at some point in the near future in any event.[42]The Tribunal dealt with this issue carefully, and I think it appropriate to set out its conclusions on the point in full. “12.1 The claimant informed us that this was not a case in which he sought re-instatement or re-engagement. It was agreed that we would consider the issues relating to the reduction or extinction of any award on the grounds of conduct or on Polkey issues. 12.2 We have considerable sympathy with the claimant’s criticisms of the meetings which took place on the 13 October 1999 and 23 December 1999. Mr Wilson did not undertake an acceptable investigation into the grievance the claimant had raised in respect of Mr Quigg and it was wholly inappropriate of Mr Walford to have treated the claimant in the manner he did on 23 December 1999. To have threatened the claimant with disciplinary action in the presence of a union official whom the claimant alleged had threatened him was preposterous. It is little wonder in the circumstances that the claimant was extremely angry and upset. However there was no basis for him attributing bad faith and collusion on the part of Mrs Ashton. In our judgment she was doing her best and on a number of occasions made attempts to sort out the matters raised by the claimant. Even though the claimant was unwell as a consequence of stress and anxiety we believe he nevertheless wilfully prevented the grievance procedure from having any chance of success at all. For example he unreasonably obstructed any progress by insisting on the delivery of documentation whilst refusing to assist Mrs Ashton in identifying that documentation. He rejected the proposed areas for investigation following the meeting of 13 July 2000. The accusations of dishonesty against Mrs Ashton, the comparison of her to a concentration camp guard, and the vilification of Mr Threapleton constituted behaviour which was unjustifiable and undermined the relationship of trust and confidence expected between employee and employer. In spite of the significant justification for ill feeling at his conduct at the hands of Hyde Road management we do not accept the claimant could have resisted disciplinary action leading to dismissal by the end of the Summer 2000. 12.3 However we do not consider that we should reduce or extinguish either the basic or compensatory award as a consequence of this conduct. By doing nothing following the promotion of Mrs Ashton the respondent must have waived the breach of the implied term of good faith. By continuing to employ the claimant on shuttle buses they must be taken to have let bygones be bygones. In contrast to the previous year, the claimant’s conduct during 2001 was neither reprehensible nor offensive. Albeit the transcript of the counselling meetings indicated he retained very strong views about the way he had been treated, he continued to work throughout including on public service vehicles. 12.4 We do not accept that in failing to let his grievances lie we should find that such conduct justified extinguishing or reducing either award. The counselling meetings demonstrated that the claimant was prepared to enter into a dialogue even though it did not lead to any productive resolution at that time. For the reasons we have already given it was for the respondent to address the concerns in the summer of 2001 and set out its terms for tackling them. It had chosen to retain the claimant’s services. If the claimant refused to comply with the grievance procedure or any particular reasonable working practices he should have been notified in writing why his concerns could not or would not be dealt with. 12.5 In addressing the Polkey issue we have come to the conclusion that a reasonable employer, having taken medical advice and awaited the claimant’s response to medication, would have formally required the claimant to return to work when he was fit to do so and not pursued disciplinary proceedings at that time. Because the claimant returned to work in comparable circumstances on 1 April 2001 we believe he would have driven public service vehicles, without the resolution of his grievances. In our view a reasonable employer would have discussed the remaining concerns and dismissed them or attempted to come to a satisfactory arrangement with the claimant. However, recognising the deep-rooted resentment which the claimant had of the unions with whom he would return to work and his mistrust of his managers, we are of the opinion that after a period of weeks and months an impasse would be reached whereby he would not be prepared to move on and accept the respondent’s determination about a significant number of his concerns. We find that ultimately a stage would have been reached when the claimant would have refused to drive public service vehicles or have become so stressed about the unresolved matters that he would have been unable to work through ill health. In our opinion his continuing working relationship with the respondent would have had to come to an end given the background to this case and the claimant’s firmly held attitudes. We are of the view that the claimant would have been dismissed in any event following proper procedures four months after the actual effective date of termination of his contract of employment. ”

The judgment of the EAT

[43]Mr. Cavendish raised four points before the EAT. These were summarised by the EAT in paragraph 15 of its judgment thus: - “15. The Claimant submitted that the Employment Tribunal had erred in four principal ways. They are set out in an affidavit as ordered by Judge Birtles and the future affidavit which we have treated as his Skeleton Argument.(1) Documentation It was contended that there was no agreed bundle. The Claimant did not know what the documents in the case were; he was refused all documents by the Respondent; and he was refused access to witnesses.(2) Bias The Claimant accepts before us today that although the Chairman appeared fair he was aggressive whereas the Respondent’s witnesses were treated pliantly when they had committed perjury before the Employment Tribunal.(3) Causation It was wrong of the Tribunal to find that the Claimant was not dismissed on account of whistle blowing, that is on raising health and safety issues. The Tribunal should have reached the conclusion that there was a connection between his activity, his protected disclosure and the dismissal. The Tribunal finding that there was no connection is untrue.(4) Polkey The judgment on Polkey was perverse for the Claimant indicated that there was material on which he would continue to have been employed long after the four month cut off which the Employment Tribunal fixed pursuant to the doctrine in Polkey , after which he would have been dismissed in any event for fair reasons and following a fair procedure. In his reply the Claimant accepted that he could not appeal earlier case management judgments.” (1) Documentation It was contended that there was no agreed bundle. The Claimant did not know what the documents in the case were; he was refused all documents by the Respondent; and he was refused access to witnesses. (2) Bias The Claimant accepts before us today that although the Chairman appeared fair he was aggressive whereas the Respondent’s witnesses were treated pliantly when they had committed perjury before the Employment Tribunal. (3) Causation It was wrong of the Tribunal to find that the Claimant was not dismissed on account of whistle blowing, that is on raising health and safety issues. The Tribunal should have reached the conclusion that there was a connection between his activity, his protected disclosure and the dismissal. The Tribunal finding that there was no connection is untrue. (4) Polkey The judgment on Polkey was perverse for the Claimant indicated that there was material on which he would continue to have been employed long after the four month cut off which the Employment Tribunal fixed pursuant to the doctrine in Polkey , after which he would have been dismissed in any event for fair reasons and following a fair procedure. In his reply the Claimant accepted that he could not appeal earlier case management judgments.”[44]The EAT identified the legal principles to be applied as the following: - “17. The legal principles to be applied in a case such as this are as follows: (1) The parties before an Employment Tribunal are entitled to a fair hearing in which allegations made by a Claimant are to be investigated unless obviously hopeless. Allegations as to the lack of a fair hearing are to be investigated by the EAT unless they are obviously hopeless. See Lodwickabove. The test for bias as applicable here is unacceptable connection between the Chairman and a party. The test for apparent bias is whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased i.e. treated one party less favourably and unfairly: Porter v Magill[2002] 2 AC 357, 494 at para 103 per Lord Hope. (3) Documents are to be disclosed and witnesses are to be called and these should be made clear at the outset. In this case, case management hearings were conducted and if those case management hearings lead to orders they should be followed or appealed. If there is no appeal they should therefore form the basis upon which a substantive hearing is conducted. (3) The reason for dismissal is a set of facts or beliefs known to the employer: Abernethy v Mott, Hay & Anderson[1974] ICR 323 (EAT). (4) The principle in Polkey reduces compensation where dismissal would have occurred in any event fairly at some later stage. Usually this is a question of fact and then of degree. ” (1) The parties before an Employment Tribunal are entitled to a fair hearing in which allegations made by a Claimant are to be investigated unless obviously hopeless. Allegations as to the lack of a fair hearing are to be investigated by the EAT unless they are obviously hopeless. See Lodwickabove. The test for bias as applicable here is unacceptable connection between the Chairman and a party. The test for apparent bias is whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased i.e. treated one party less favourably and unfairly: Porter v Magill[2002] 2 AC 357, 494 at para 103 per Lord Hope. (3) Documents are to be disclosed and witnesses are to be called and these should be made clear at the outset. In this case, case management hearings were conducted and if those case management hearings lead to orders they should be followed or appealed. If there is no appeal they should therefore form the basis upon which a substantive hearing is conducted. (3) The reason for dismissal is a set of facts or beliefs known to the employer: Abernethy v Mott, Hay & Anderson[1974] ICR 323 (EAT). (4) The principle in Polkey reduces compensation where dismissal would have occurred in any event fairly at some later stage. Usually this is a question of fact and then of degree. ”[45]The EAT’s conclusions were expressed in paragraph 18 of its judgment, which I will again set out in full: - “18. Applying those principles to the issues in this case we reject the arguments of the Claimant and have decided that the Appeal should be dismissed. We uphold the written and oral submissions of the Respondent.(1) Bias We agree that bias is not now pursued in the same form as was originally envisaged. Inherent unfairness has crept in if this matter were to be developed in the way the Claimant now develops it. This is because, just as the Claimant is entitled to expect fair treatment from an Employment Tribunal, so when he criticises a Chairman for falling below those standards the Chairman is entitled by our Practice Direction to submit comments for our consideration, as are the members who are on this hypothesis witnesses to the unfair treatment of a Claimant. This Chairman has responded to the allegations which were made against him, and we note that they are against him and not the members as far as we can tell, and has contended that they are not true. However, they allegations have been made of a different character relating to what is described as the Chairman’s aggressive conduct of the Claimant’s examination, and a more sympathetic approach to the Respondent’s witnesses. The response to that is that these matters must have been particularised in the documentation or be dismissed. The Practice Direction requires particularisation. An affidavit was ordered by Judge Birtles on the issues as seen by him. This is a new matter and should not have been raised. In our judgment it fails for the absence of the particularisation and for its late introduction now. As to the primary ground originally formulated, whether actual bias which it probably is, or apparent, on the papers that we have seen, we consider this is a case which does not meet a test in Lodwick for it is manifestly bound to fail. This is a claim against where the allegation of bias can not survive the detailed rebuttal of the allegations by all members of the Employment Tribunal and by the Respondent. We are fortified in that view by the fact that the Claimant succeeded before this very Tribunal who integrity he impugns and succeeded at a subsequent hearing on remedy.(2) Documentation In our Judgment Mr McGluggage is correct when he contends that the issues relating to the case management of the documentation and the witnesses in this case were all concluded prior to the beginning of this hearing at extensive case management hearings. Appeals were launched, as we have identified earlier, against certain aspects of those case management hearings but not about documentation. It is now too late and we accept the graphic image which Mr McGluggage puts before us of a Claimant seeking by the back door to challenge a case management judgment long ago expired by the route of a challenge to the substantive hearing when the documents on this footing were not before it . We reject the contention for those two reasons and in any event we are satisfied from the material which has been produced throughout that relevant documentation was all before the Employment Tribunal as the Tribunal describes the bundles before it and as they have been summarised before us.(3) Causation What was the reason for the Claimant’s dismissal is of course a question of fact to determine. This Tribunal has done just that. It had before it a choice whether the dismissal was for a protected reason or for some other reason. Those are issues which it investigated following oral evidence and submission and its conclusion is one which cannot be overturned in the absence of a clear case of perversity as to which an overwhelming case has to be made. See Yeboah v Crofton [2002] IRLR 634 CA. Thus, the Judgment by the Tribunal that his dismissal was not connected to his raising whistle blowing matters is one which cannot be upset. It did however accept the subsidiary case which was this was an ordinary unfair dismissal and that is not the subject of a cross appeal or an appeal by the Respondent.(4) Polkey Issues of Polkey, are also questions of fact. The determination of whether or not a dismissal would have occurred in any event is one for the Employment Tribunal to make up its own mind about. So is the timing of such a putative dismissal if the first question was answered in favour of the Respondent’s submission on the evidence. Thus, in this case the Tribunal was embarked upon fact finding. It follows that we will not interfere with it. It seems to us that there was ample material for the Tribunal to form its view which was that the Claimant would not have survived more than four months because of the history and of his attitude”. (1) Bias We agree that bias is not now pursued in the same form as was originally envisaged. Inherent unfairness has crept in if this matter were to be developed in the way the Claimant now develops it. This is because, just as the Claimant is entitled to expect fair treatment from an Employment Tribunal, so when he criticises a Chairman for falling below those standards the Chairman is entitled by our Practice Direction to submit comments for our consideration, as are the members who are on this hypothesis witnesses to the unfair treatment of a Claimant. This Chairman has responded to the allegations which were made against him, and we note that they are against him and not the members as far as we can tell, and has contended that they are not true. However, they allegations have been made of a different character relating to what is described as the Chairman’s aggressive conduct of the Claimant’s examination, and a more sympathetic approach to the Respondent’s witnesses. The response to that is that these matters must have been particularised in the documentation or be dismissed. The Practice Direction requires particularisation. An affidavit was ordered by Judge Birtles on the issues as seen by him. This is a new matter and should not have been raised. In our judgment it fails for the absence of the particularisation and for its late introduction now. As to the primary ground originally formulated, whether actual bias which it probably is, or apparent, on the papers that we have seen, we consider this is a case which does not meet a test in Lodwick for it is manifestly bound to fail. This is a claim against where the allegation of bias can not survive the detailed rebuttal of the allegations by all members of the Employment Tribunal and by the Respondent. We are fortified in that view by the fact that the Claimant succeeded before this very Tribunal who integrity he impugns and succeeded at a subsequent hearing on remedy. (2) Documentation In our Judgment Mr McGluggage is correct when he contends that the issues relating to the case management of the documentation and the witnesses in this case were all concluded prior to the beginning of this hearing at extensive case management hearings. Appeals were launched, as we have identified earlier, against certain aspects of those case management hearings but not about documentation. It is now too late and we accept the graphic image which Mr McGluggage puts before us of a Claimant seeking by the back door to challenge a case management judgment long ago expired by the route of a challenge to the substantive hearing when the documents on this footing were not before it . We reject the contention for those two reasons and in any event we are satisfied from the material which has been produced throughout that relevant documentation was all before the Employment Tribunal as the Tribunal describes the bundles before it and as they have been summarised before us. (3) Causation What was the reason for the Claimant’s dismissal is of course a question of fact to determine. This Tribunal has done just that. It had before it a choice whether the dismissal was for a protected reason or for some other reason. Those are issues which it investigated following oral evidence and submission and its conclusion is one which cannot be overturned in the absence of a clear case of perversity as to which an overwhelming case has to be made. See Yeboah v Crofton [2002] IRLR 634 CA. Thus, the Judgment by the Tribunal that his dismissal was not connected to his raising whistle blowing matters is one which cannot be upset. It did however accept the subsidiary case which was this was an ordinary unfair dismissal and that is not the subject of a cross appeal or an appeal by the Respondent. (4) Polkey Issues of Polkey, are also questions of fact. The determination of whether or not a dismissal would have occurred in any event is one for the Employment Tribunal to make up its own mind about. So is the timing of such a putative dismissal if the first question was answered in favour of the Respondent’s submission on the evidence. Thus, in this case the Tribunal was embarked upon fact finding. It follows that we will not interfere with it. It seems to us that there was ample material for the Tribunal to form its view which was that the Claimant would not have survived more than four months because of the history and of his attitude”.

Mr. Cavendish’s argument on 14 October 2005

[46]Mr. Cavendish produced a 38 page skeleton argument, which he read to me. It is unpromisingly headed “The 60 million “FUCKIN SHIT STIRRIN’ MENTAL DEFECTIVE PARANOID BASTARDS” of Britain v The British Masonic & Judicial Establishment”. The first paragraph gives a flavour of what is to come: - “1. Arrests, prosecutions, convictions and acquittals can be bought, sold and arranged for the price of a phone call, it has happened in this case. The full judgment upon which each court has relied is plain and simply corrupt, bent, bent, bent as the proverbial nine-bob-note.”[47]The document then revisits the facts of the case, as perceived by Mr. Cavendish. It is a highly tendentious account, but, more importantly, does not assist me in resolving Mr. Cavendish’s appeal. It is evident that Mr. Cavendish regards himself as a crusader, battling in vain against a corrupt establishment. Thus the hearing before the Tribunal, as he puts it, “from beginning to end was a total charade. A Stalinist show trial”, in which Mrs. Ashton “lied on every breath and the chairman and panel knew it”. Mr. Cavendish describes the chairman of the Tribunal as “criminally corrupt” and compares him to the Nazi judge who harangued the defendants at the show trial of the officers who attempted to assassinate Adolf Hitler.[48]Also before the court is a 45 page affidavit sworn by Mr Cavendish on 20 July 2005, which contains similar allegations, this time about the EAT. He describes the EAT hearing as “perverse and biased”. He accuses Judge McMullen of having prejudged the hearing without having read the papers, and of being “unable to hide his scorn and hatred” for Mr. Cavendish.. He says:
“I have at all times sought the same rights given to Ian Brady and Myra Hindley. I allege that the British judiciary so far in comparison sees that what they did pales into insignificance in comparison to what I have done in exposing corruption amongst the Protestant Masonic Establishment. In so doing, I have been denied the right to representation, documents and witnesses.”

Discussion

[49]I am in no doubt at all the permission to appeal the order made by the EAT on 29 June 2005, dismissing Mr. Cavendish’s appeal from the decision of the Manchester Employment Tribunal dated 1 March 2005 must be refused. I reach that conclusion for the following reasons.[50]Firstly, the crucial questions in the case seem to me questions of fact, not of law. In particular, whether or not Mr. Cavendish’s dismissal related to whistle-blowing was pre-eminently a matter of fact for the Tribunal. Equally, having found the dismissal to have been unfair within ERA 1996, section 98, the application of the Polkey contribution was, once again, very much a matter of fact and judgment based on the evidence which the Tribunal had heard, and the impressions which it had formed of the parties.[51]Mr. Cavendish does himself less than justice when he describes the hearing before the Tribunal as a charade and a Stalinist show trial. The Tribunal spent 11 days over the case and produced a judgment of some 37 closely observed and reasoned pages. It found in Mr. Cavendish’s favour that he had been unfairly dismissed and made an award in his favour. In my judgment, coming as I do to the case from the outside and for the first time, I see nothing in the Tribunal’s judgment apart from a conscientious attempt to grapple with the facts and to produce a result with properly represents the application of the law to those facts. The allegations of bias against the chairman are manifestly unfounded.[52]I think it extremely sad that Mr. Cavendish feels the need to express himself as he does. In my judgment, by so doing, he does himself a disservice. It is also a matter of considerable regret that the process appears to have brought Mr. Cavendish from a conscientious employee, sincerely raising concerns about health and safety issues in 1998 and 1999 (the Tribunal’s finding at paragraph 11.1) to the obsessional belief that he has been brought low by, and cannot obtain compensation from a corrupt establishment indifferent to the human rights of himself and his fellow citizens.[53]Unfortunately, Mr. Cavendish does not appear to understand that bare assertion is not proof, and that irrational invective reflects more on the person uttering it than on those at whom it is aimed.[54]The simple fact of the matter is that the findings of fact which the Tribunal made were open to it. It was entitled to find that Mr. Cavendish was not automatically unfairly dismissed as a whistle-blower. It was entitled to find that Mr. Cavendish was unfairly dismissed by Stagecoach, and entitled to make the Polkey reduction it made, for the reasons it gives. I see in the Tribunal’s decision only, as I said before, a conscientious attempt to do justice.[55]In my judgment, the Tribunal’s decision raises no issue of law. The EAT was, accordingly, right to dismiss Mr. Cavendish’s appeal, and any appeal to the Court of Appeal would stand no prospect of success.[56]The application for permission is, accordingly, refused.