Baillie-Smith v City Of London Corporation [1994] UKEAT 190_91_1901

EAT
Baillie-Smith v City Of London Corporation
[1994] UKEAT 190_91_1901 · 1994-01-19
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by Mr Baillie-Smith against the decision of the Industrial Tribunal held at London (North) over a period of three days on the 11th, 12th and 13th December 1990.For the Full Reasons set out in the decision, notified to the parties on the 11th March 1991, the Tribunal rejected Mr Baillie-Smith's claim of unfair dismissal against the City of London Corporation.Mr Baillie-Smith was dissatisfied with the decision and his wife, acting on his behalf, presented a Notice of Appeal to this Tribunal on the 19th April 1991.This is a preliminary hearing of that appeal to determine whether the grounds set out in the Notice disclose an arguable point of law. This Tribunal only has jurisdiction to hear appeals on a point of law arising from the hearing of the Industrial Tribunal or its decision.Mrs Baillie-Smith has represented her husband today and has made two main criticisms of the Industrial Tribunal. First, she criticises the way in which the hearing was conducted and makes detailed points which I shall mention in a moment. Secondly, she says, against the decision itself, that the City of London Corporation should have taken such further steps in relation to her husband's position as reasonable employers would have taken. The main argument is against the conduct of the hearing.Before we go to the detailed criticisms it is important to bear in mind the law in relation to Industrial Tribunal hearings. The procedure before Industrial Tribunals was governed at the relevant time by the Industrial Tribunals (Rules of Procedure) Regulations 1985. The two particular rules which are relevant are Rule 8 and Rule 12. Under Rule 8(1):
"The tribunal shall conduct the hearing in such manner as it considers most suitable to the clarification of the issues before it and generally to the just handling of the proceedings; it shall so far as appears to it appropriate seek to avoid formality in its proceedings . . ."
Rule 12(1) says:
"Subject to the provisions of these Rules, a tribunal may regulate its own procedure."
Each industrial tribunal is therefore given a wide discretion to decide how the hearing of the particular case should be conducted. There is no dispute that this was a lengthy hearing. Three days before the Tribunal were spent in evidence and argument. Evidence was given for Mr Baillie-Smith both by himself and by his wife. They were cross-examined. Five witnesses gave evidence on behalf of the Corporation. They were cross-examined by Mrs Baillie-Smith. Both sides were given an opportunity, at the end of the evidence, to make submissions to the Tribunal. It is clear from the Full Reasons given by the Tribunal, which run to thirteen paragraphs in six pages of detail, that the Industrial Tribunal gave detailed consideration to the case presented by each side before coming to the decision to dismiss Mr Baillie-Smith's application.What was wrong with the way in which this Tribunal hearing was conducted that could amount to an error of law by the Tribunal in relation to its procedure? Mrs Baillie-Smith sets out in the Notice of Appeal the detailed grounds. Before I mention those I should fill in the background to the issues before the Tribunal.Mr Baillie-Smith made his complaint to the Industrial Tribunal as long ago as the 6th March 1990. He complained of unfair dismissal by the Corporation from his position as a Works Supervisor for the Corporation in the Epping Forest area. He had been employed by the Corporation from the 25th September 1985 to the 8th December 1989. His complaint states that he had been sent a letter early in December 1989 stating that he was to be retired prematurely on the grounds of ill-health. This was without his agreement, and was stated to have been done on the recommendation of the Corporation's Medical Officer of Health after examination had taken place. Mr Baillie-Smith complained that his GP strongly disagreed with the diagnosis given to the Corporation. He said:
"the real reason for the ending of my employment was totally unfounded allegations of theft made by the Superintendent of Epping Forest in March 1988."
Those allegations against him were not proceeded with and were incapable of being substantiated.The Corporation contested the claim and, in their Notice of Appearance, stated that the reason that Mr Baillie-Smith had been dismissed was continuing ill-health dating back to March 1988 and going on to the date of dismissal. The Corporation stated that they reasonably relied upon medical advice from their own occupational health therapist, who advised them of the nature of the illness from which Mr Baillie-Smith was suffering. An illness was diagnosed as severe and continuing. They complained that they had consulted with Mr Baillie-Smith over that period, notwithstanding that he had failed to attend certain appointments. The Corporation denied that the real reason for dismissal was unfounded allegations of theft. It was the Corporation's contention that the dismissal on health grounds was within the range of reasonable responses open to a reasonable employer and was fair. It was clear from the Originating Application and the Notice of Appearance what the nature of the dispute for the decision of the Industrial Tribunal.Mrs Baillie-Smith's main criticisms directed at the conduct of the hearing are set out in her Notice of Appeal. She identifies the issue, quite correctly, that her husband's complaint was that he had been prematurely retired on ill-health grounds and that was an unfair dismissal. She explains how she and her husband were unable to afford legal assistance. She therefore represented him. She says that at the hearing she was at a tremendous disadvantage and did not get a fair hearing. While she was acting for her husband the City of London Corporation were represented by a Barrister and two Corporation Lawyers and other Corporation staff available for consultation. She complains of these matters: first, that the hearing was formal in that, for instance, she was reprimanded for asking a leading question. She says that the Corporation took two days to present their case. She is critical of the veracity of the Medical Office for Health who was the principal witness for the Corporation. She complains that he was evasive. When she came to present the case, with the help of notes which she had prepared, written out and wanted to read from, the Chairman suggested that she should hand over the notes for photocopying. This is what she did. The purpose of the Chairman was apparently to enable the members of the Tribunal to read the statement and the notes of Mrs Baillie-Smith and rather than her having to read out all these documents. The Tribunal Clerk made copies and returned the copies to the Tribunal. Mrs Baillie-Smith complains that copies were given to the legal team representing the Corporation. The Chairman gave the Corporation's Barrister time to study the documents, the Tribunal then adjourned to read the papers which had been copied. During the adjournment, which was about 50 minutes on Mrs Baillie-Smith's estimation, she was approached by two students who were present at the hearing who said to her "was she aware that what was happening was not right?" The Tribunal resumed and Mrs Baillie-Smith was cross-examined. She protested against this procedure. She told the Chairman that she had expected to read out her presentation. She asked if she was to presume that, because they had had a copy to read, that was to be taken as read. The Chairman said "yes". Mrs Baillie-Smith complained that this had taken the initiative from her. She was particularly concerned, (and this is one of the main points which she has made at the oral argument this morning) that her case was in cursory note form because she was too tired earlier that morning to write it all out. She wished to be able to elaborate or leave out matters, as she saw fit, from those notes. That forms her main complaint on the hearing of this appeal. As for the rest of the hearing, Mrs Baillie-Smith was cross-examined. Her husband gave evidence, and he was cross-examined.There is a complaint also about the final submissions. Mrs Baillie-Smith told the Chairman, in the middle of the afternoon of the last day, that she was very tired because of the late nights and the strain of the Tribunal. She wondered if the Chairman could grant an adjournment to give her time to put everything together that evening. The Chairman however, said he wanted the proceedings to end that day. He said that, if Mrs Baillie-Smith persisted in her request he would adjourn to consider it. Mrs Baillie-Smith pointed out that if the Tribunal was adjourned she would be given the same amount of time that the Barrister had been given to look at her papers. The request for an adjournment was refused, the most that the Chairman would allow her was 15 minutes and Mrs Baillie-Smith complains that that really did not give her enough time on which to make her submissions to the Tribunal. She says, in her concluding paragraphs, that the Tribunal was "maladministered". Her husband was not given a proper hearing. She was not able to make out a proper case on behalf of her husband. An initial reading of the Full Reasons, which were later delivered by the Tribunal, shows errors of fact by the Chairman.In view of the criticisms of the Tribunal procedure the Notice of Appeal prepared by Mrs Baillie-Smith was sent to the Chairman of the Tribunal for his comments. In his detailed comments on Mrs Baillie-Smith's complaints the Tribunal Chairman says:
"The Applicant was represented by his wife, Mrs Baillie-Smith. At the start of the proceedings I explained the procedure of hearings at Industrial Tribunals including the sequence of evidence, the examination of witnesses and submissions by representatives. I said that I would give her guidance throughout with regard to procedural matters and invited her to intervene when in doubt. Within this normal framework, the proceedings continued without formality. In the conduct of the proceedings I took particular account of the stressful history of the matters at issue and the fact that the Applicant was represented by his wife.
I explained that it was for Mrs Baillie-Smith to decide what evidence she wished to present and that she could give evidence herself if she so desired. Mrs Baillie-Smith gave sworn evidence at her own desire on the third day of the hearing (including an eight page written statement concerning the facts which she elaborated in the course of her oral evidence). and was cross-examined by Counsel for the Respondent [the Corporation] . . .The Hearing was conducted according to the normal manner and sequence of Industrial Tribunals, which included exchanges between the Chairman and Representatives of both parties as necessary. I may have helped Mrs Baillie-Smith in framing a question to a witness, but I have no recollection of reprimanding Mrs Baillie-Smith for asking a leading question."He refers to the cross-examination of Dr John, the Medical Officer of Health by Mrs Baillie-Smith and to questions being put by members of the Tribunal. He refers to a particular matter of which Mrs Baillie-Smith complains, that is the circumstances in which her documents were copied and read by the members of the Tribunal rather than her reading them out. He comments as follows:
"Mrs Baillie-Smith indicated that she wished the Tribunal to consider a letter dated 28th June 1989 and attached paper, which she had sent to the Lord Mayor of London and also a statement which she had prepared for the Hearing. I asked her whether the statement was a statement as to the facts or was her submission to the Tribunal. As she indicated that it was a statement of facts, I suggested that it would be helpful to her case to present the statement as evidence. She took the oath and put in the statement. The statement contained amongst other things cross references to the letter to the Lord Mayor. As the letter and attachment was 34 pages long (and although contained in the Respondents bundle of documents had not at this stage of the proceedings been read), and as the statement by Mrs Baillie-Smith was 8 pages long, it was agreed by the parties on my suggestion that the Tribunal should read these documents silently. Although there is no record in my notes to this affect, I think that the hearing was adjourned for this purpose. A copy of the statement was given to Counsel for the Respondent without any objection by Mrs Baillie-Smith. The statement was presented not as case notes or a submission but as evidence. On completion of the silent reading, the Applicant gave evidence in chief by way of elaboration of the contents of the statement and also on other matters. She was cross-examined by Counsel for the Respondent. I do not recall a protest by Mrs Baillie-Smith or the other matters described in the last sentence of paragraph 19 and the first sentence of paragraph 20. The Applicant gave evidence and was cross-examined. Mrs Baillie-Smith submission came next and was followed by a submission by Counsel for the Respondents [the Corporation]."
There are comments on other matters which are not so relevant to the basis on which Mrs Baillie-Smith presents this appeal.We have carefully considered Mrs Baillie-Smith's complaints, both in our pre-reading of these papers, and in the light of what she has submitted orally on this appeal. In our view, the Tribunal did not commit any error of law in the way in which it conducted the proceedings. There are obviously dangers in documents being copied and read silently by members of the Tribunal, particularly when, as here, Mrs Baillie-Smith feels that she was not given an adequate opportunity to make all points that she wished to make from the statement and from her written notes.We have to stand back, however, and look at the whole course of this hearing in the light of the detailed complaints of Mrs Baillie-Smith. It seems to us that, in view of(1) the length of time over which this hearing took place, that is three days,(2) the fact that both Mrs Baillie-Smith and her husband gave evidence and were cross-examined and(3) that Mrs Baillie-Smith had an opportunity to cross-examine all five witnesses of the Corporation and(4) then make submissions, the Tribunal could not have been left in any doubt, when it came to make its decision, what the issue was, what the evidence was on each side and what the arguments were on each side. This is not a case of a hearing which was rushed through or where Mrs Baillie-Smith and her husband were not given a proper opportunity to present evidence and argument. The points of detail on which Mrs Baillie-Smith complains do not, in our view, make this hearing one which can be described as vitiated by errors of law as to the procedure followed. It was within the Chairman's discretion, if he thought fit, to suggest to Mrs Baillie-Smith that it might be better and fairer to everybody if, instead of reading out her evidence and notes from the witness box, she should hand them in to be copied and read silently. That is the main point of appeal. There was no error of law.The second main point made by Mrs Baillie-Smith attacks the substance of the decision. We say that there is, in our view, no error of law in the substance of the decision. The Tribunal correctly directed itself as to the relevant legal position when it said in paragraph 8 of the decision:
"Under Section 57 of the Employment Protection (Consolidation) Act 1978 it is for the Respondents [the Corporation] to show what was the reason for the dismissal and whether it falls within the potentially fair reasons stated in Section 57. The Respondents [the Corporation] maintained that the reason for the dismissal related to the capability of the Applicant [Mr Baillie-Smith] ie his ill-health. The Applicant argued that this was not the genuine reason; and considered that he was dismissed to get the Respondents [the Corporation] out of a difficult situation regarding the suspended disciplinary hearing . . . . Our decision is that the Applicant's [Mr Baillie-Smith's] ill-health was the genuine reason for his dismissal."
That is a conclusion of fact on all the evidence heard by the Tribunal. There can be no appeal against that finding of fact.The Tribunal had to decide whether the dismissal was fair or unfair. It correctly referred to Section 57(3) of the Act and the test of whether an employer was acting reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. The Tribunal was aware that it had to determine this matter in accordance with the equity and substantial merits of the case. The Tribunal correctly stated that it was not for the Tribunal to decide whether in fact Mr Baillie-Smith was ill, or whether they would have taken the action which was taken by the Corporation. The question was whether the Corporation's action in dismissing Mr Baillie-Smith fell within the band of reasonable responses of a reasonable employer in comparable circumstances. Having considered then the evidence and the arguments the Tribunal stated its decision in paragraph 13:
". . . that the Respondents [the Corporation] acted reasonably in treating the health of the Applicant as a sufficient reason for dismissing him."
That is a decision of fact. There was no error of law by the Tribunal in determining that question of fact. They correctly referred, as I have mentioned, to the relevant statutory tests in the 1978 Act.We therefore reject Mrs Baillie-Smith's argument that there was an error of law which she formulated, in this way, that the Corporation should, as a reasonable employer have taken further steps. This is a complaint about the findings of fact. There is no error of law on which this appeal could be argued. At this preliminary hearing we therefore dismiss it.