Kronospan Ltd v Oakley [1993] UKEAT 180_92_0102

EAT

Kronospan Ltd v Oakley

[1993] UKEAT 180_92_0102 · 1993-02-01

MR JUSTICE KNOX: We have to deal first with an application to amend the Notice of Appeal. It arises as follows: The decision which is under appeal was one given by the Industrial Tribunal sitting at Shrewsbury on the 31st December 1991 and sent to the parties on the 22nd January 1992. The decision was on a preliminary issue, whether or not the Applicant, Mr Oakley, was an employee of the Respondent, Kronospan Limited, which I will call "the Company", because, if he was not, his claim for unfair dismissal was bound to fail as being outside the jurisdiction of the Industrial Tribunal. As often happens in such cases that disputed issue whether or not he was an employee, as defined by the Employment Protection (Consolidation) Act 1978, was taken first. He had been employed, without begging the question in what capacity, from May 1989 until August 1991. His job was one of a Formalin Tanker Driver.

The appeal was lodged in due time, on the 27th February 1992, and the grounds on which it was based in the Notice of Appeal included two paragraphs that relied on evidence given by the Appellants, that is to say by the Company. In the first paragraph reliance was placed on the fact that the Company gave evidence that:

(a)the Respondent [Mr Oakley] could have employed someone else to carry out his work on an occasional or regular basis, leaving him free to pursue other commercial interests. (b)in the course of the Mr Oakley's contract with the Company he did, in fact, have his work carried out by a named substitute contractor, and that that work was invoiced by Mr Oakley to the Company, and (c) that he replaced a previous independent contractor which is there named.

The second paragraph relying on evidence given by the Appellants said this:

"They [the Industrial Tribunal] failed to have regard to evidence given by the Appellants that the Respondent's gross earnings were in excess of £23,000 per annum which was almost double that of the Appellant's employed drivers in comparable positions. The Appellants submitted that the high earnings reflected the risk attached to the Respondent's position as an independent contractor."

The third paragraph raises a question of law which has no particular relevance to what we have to decide at this stage.

The answer was given to that Notice of Appeal on the 17th March 1992. It relies on the grounds of the Industrial Tribunal.

Shortly before that, after some irrelevant correspondence with the Industrial Tribunal by the Company's Solicitors, there was a letter of 16 March 1992 sent by this Tribunal, the Employment Appeal Tribunal, to the Company's Solicitors sending in the usual way a sealed copy of the Notice of Appeal, but saying at the bottom of the page:

"Notes of Evidence are not considered necessary for the appeal."

and there the matter rested so far as Notes of Evidence are concerned until on the 11th January 1993 the Company's Solicitors wrote to this Tribunal saying:

"This is an Action where both parties consider it would be of assistance to the EAT if the original Tribunal's Notes were before them. We enclose, for your information, copies of a letter from ourselves and reply received from the local Tribunal . . ."

which had, in fact raised the question of the availability of Notes of Evidence and of a letter from Mr Oakley's Solicitors, who had been alerted to the need for Notes of Evidence by the fact that it had been observed that, in fact, contrary to what was said in the Notice of Appeal, no evidence, in the sense of a witness being sworn to give evidence and doing so, had been given at all on behalf of the Company before the Industrial Tribunal and, not surprisingly, the advisors to Mr Oakley thought that it would be desirable to be able to establish that fact from the Notes of Evidence. That, in fact, led to the Notes of Evidence being supplied with quite remarkable despatch by the Chairman of the Industrial Tribunal. They are dated 13th April, only two days later. This gave rise to the supplementary ground of appeal which is the subject matter of the application before us to amend the Notice of Appeal. That proposed additional ground of appeal reads as follows:

"The Respondent Company was not legally represented at the Hearing but appeared by way of Mr McKenna, an Officer of the Company and effectively a litigant in person. The Tribunal did not invite Mr McKenna to adduce evidence on behalf of the Company and did not properly explain to him, or at all, the significance of failing so to do. Accordingly the Respondent Company had no proper opportunity to adduce available and relevant evidence which could properly be regarded as likely to have a bearing on the Tribunal's findings.

In the premises there was procedural irregularity and the Respondent was denied natural justice."

By this time, of course, it was getting very late in the day. It was the 22nd January and this hearing is on the 1st February. In fact, the Supplementary Ground of Appeal was faxed to this Tribunal at 9.53 am on the 28th January, that is last Thursday, today being Monday, and again with very great despatch the Chairman's reaction to that Supplementary Ground of Appeal was obtained over the telephone and by fax. The proposed amendment to the Notice of Appeal was read to the Chairman at 1.10 pm over the telephone on the 28th and the Chairman replied by fax at 27 minutes past 3. He said this:

"My notes show that Mr McKenna - the representative of the Company never offered to give evidence but had made submissions at the end of the evidence.

(i) he was retained to provide a service;

(ii)he had to have a HGV licence and chemical experience;

(iii)he was told at the beginning he was self-employed."

and the Chairman adds:

"Sorry, I cannot help further,

Yours sincerely

It is signed by the Chairman

Chairman"

In those circumstances it is said that there should be leave given to make that proposed amendment. We are not disposed to grant that leave for two reasons.

The first reason is that it seems to us that there has been much too long delay in this case for us to take that step at this very late stage. The critical delay, of course occurred, between the expression of opinion by this Tribunal that Notes of Evidence were not needed in March of last year and the discovery that Notes of Evidence revealed a fundamental misapprehension in the way in which the original Notice of Appeal was drafted. That, in our view, as between the Company and Mr Oakley must lie at the Company's door. It is the duty of those who wish to appeal, on the basis that there has been a perverse decision either on the basis that there is no evidence to support a particular finding or that there has been a failure to comply with the rules of natural justice or anything on those lines, to obtain the Notes of Evidence to substantiate that claim. In this case there can hardly be any doubt that there was a serious fault somewhere, and it is not for us to investigate where, on the Company's side because there is the categoric statement, more especially in paragraph 2 of the Notice of Appeal that I have read about the Respondent's gross earnings, which indicates that there must have been, somewhere down the line, a specific statement that evidence was in fact given to that effect. But when one has regard to the material that is before this Tribunal it is, in our view, evident that nothing to that effect was in fact said before the Industrial Tribunal. It plainly was not said in evidence on behalf of the Company because ex hypothesi there was not any evidence, but the suggestion that it may have been put in cross-examination of the only evidence on behalf of Mr Oakley, which was his own evidence, equally in our view, does not bear examination because we do have the notes of that cross-examination and there is not a trace of the level of Mr Oakley's earnings having been put to him. In those circumstances it seems to us that the conclusion that there was misinformation at some stage, on the Company's side, as to what exactly was said in the Industrial Tribunal is indeed inevitable.

The second main point, is that this is not a claim which, on the face of it, is a very of any significant substance at all. The issue "employee" or "independent contractor" is of course a familiar one and there is evidence which the Industrial Tribunal reviewed which led it to form the conclusion that it did. It is now sought to introduce, possibly, if it can be allowed a second bite of the cherry, evidence as to the level of Mr Oakley's remuneration which was, we are now told, in fact available, if not actually given to the Industrial Tribunal, when it first sat. In our view, that is on the wrong side of a line in relation to the giving of additional evidence. There is no question of the person who represented the Company before the Industrial Tribunal having actually been prevented from either making submissions, or if he had asked to do so, giving evidence. He is recorded as having made very brief submissions and it is clear from the Chairman's Notes that he did not volunteer a desire to give evidence.

This is not an appropriate case to examine in detail or, a fortiori to define, the duties of a Chairman of Industrial Tribunals in dealing with litigants who are represented by persons like this gentleman, on behalf of the Company. He was described in the records of the Industrial Tribunal as a Human Resources Manager and he is also recorded as having conducted a cross-examination of Mr Oakley. So that he, although not a professional lawyer, we have no doubt is not a person who is entirely innocent of any knowledge of employment law and practice. We are unpersuaded that there can be said to be an overall duty on chairmen of industrial tribunals positively to invite parties to give evidence and that there is an error of law if no such invitation is given.

For all those reason we do not propose to give the leave that is sought.

COSTS OR EXPENSES

There has been an application for an Order for Costs. Our jurisdiction arises under Rule 27 of the Employment Appeal Tribunal Rules 1980 which reads:

(1)Where it appears to the Appeal Tribunal that any proceedings are unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay to any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings.

(2)Where an order is made under paragraph (1) of this rule, the Appeal Tribunal may assess the sum to be paid, or may direct that it be assessed by the taxing officer, from whose decision an appeal shall lie to a judge.

I need not repeat what was said in the earlier judgment refusing leave to amend the Notice of Appeal. The main issue before us has been on the effect of the third paragraph to the Notice of Appeal with which the earlier judgments given this afternoon had no direct connection. That paragraph said this:

"They [the Industrial Tribunal] attached undue importance to the case of Young & Woods v. West cited in paragraph 2 of the Decision. The Appellants submit that the case states a general principle of law. The Appellants submit that upon the facts of this case, the precedent cited could not reasonably be construed as a deciding factor against the Appellants. A true application of that precedent to the facts of this case means simply that the Tribunal should not regard how the parties described their relationship as a governing factor. Further evidence was given by the Respondent that he had and still did regard himself to be of self-employed status."

It is accepted, and it is difficult to see how he could have done otherwise, by Mr Brook that the first and second grounds of appeal were effectively vexatious in that there was no factual ground upon which those grounds of appeal could be advanced. Secondly, he did not dispute, and it is difficult to see how he could possibly have disputed, the proposition that there was unreasonable delay in making the necessary application for the Notes of Evidence to substantiate any argument based upon them. What he did say was this, that Ground 3, which I have read, would have been a sufficient vehicle for a perfectly defensible appeal taken by itself and that in those circumstances it would be wrong for this Tribunal to exercise what is a fairly unusual jurisdiction to sanction the errors that were made with an award of costs. That depends on the premise that Ground 3 by itself, would have involved the respondent employee in the costs and expenses that he has incurred. We are not satisfied that that is so because foreseeably (one can not be absolutely certain of these things) had the Notice of Appeal only had paragraph 3 in it there would have been a hearing by way of preliminary procedure ex parte and having read the decision and having looked at Ground 3 we are of the view that had we been dealing with such a preliminary application we would not have allowed the matter to go forward for a full hearing and that at that stage the appeal would have been dismissed. If that is right then not only is there jurisdiction to make an award of costs, which there plainly is because of the irregularities in relations to Grounds 1 and 2 which we need not labour, but also there is the circumstance that we are satisfied that the Respondent has been involved in costs that he would not have been involved in had Ground 3 been the only Ground relied upon. In those circumstances it does seem to us that this is a case in which we should exercise our jurisdiction. There is always a difficult problem for this Tribunal in the exercise of such a jurisdiction whether to exercise the power in sub-rule (2) to assess the sum or direct taxation. The latter involves the parties in additional expense and we are anxious to avoid that, if at all possible, we propose therefore to assess the sum in the figure of £1,000.