Mills v Blue Circle Industries Plc [1995] UKEAT 169_95_0510

EAT
Mills v Blue Circle Industries Plc
[1995] UKEAT 169_95_0510 · 1995-10-05
MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Mr W R Mills against the decision of the Industrial Tribunal held at Cardiff on 10th March and 24th and 25th November 1994.The Tribunal heard a claim made by Mr Mills against his former employers, Blue Circle Industries Plc, that he had been unfairly dismissed from their employment. He had been employed since March 1971. That employment ended in July 1993.He made his complaint to the Industrial Tribunal by an application received in the Central Office on 29th October 1993.The claim was resisted on the grounds set out in the Notice of Appearance dated 23rd November 1993. Blue Circle's case was that Mr Mills had not been unfairly dismissed, but had been fairly dismissed by reason of redundancy, and that they had acted reasonably in dismissing him.That was the case before the Industrial Tribunal. The Tribunal, in the extended reasons notified to the parties on 13th January 1995, explained why they had unanimously decided that Mr Mills was fairly dismissed on the ground of redundancy, and why they dismissed his claim.Mr Mills was dissatisfied with that decision. He sought a review. The Chairman of the Tribunal, for reasons notified on 26th January 1995, refused Mr Mill's request for a review, on the ground that it had no reasonable prospect of success. Mr Mills appealed to this Tribunal. The Notice of Appeal was received on 23rd February 1995, and stated three grounds on which Mr Mills contended that the Industrial Tribunal had erred in law. The first ground was perversity. Mr Mills believed that the conclusion of the Industrial Tribunal was one which no reasonable Industrial Tribunal, properly directing itself, could have reached. Secondly, procedural unfairness. Mr Mills believed that there had been a significant degree of procedural unfairness in breach of the rules of natural justice. Thirdly, bias. Mr Mills believed that the Cardiff Tribunal demonstrated a significant degree of bias towards him. Attached to the Notice of Appeal were further details of the three grounds.In accordance with the practice of this Tribunal in cases where bias on the part of the Tribunal forms one of the grounds of appeal, Mr Mills was asked to provide a detailed affidavit giving particulars and evidence of the complaint of alleged bias. They were provided in an eight page affidavit sworn by Mr Mills on 20th March 1995.The case was then listed as a preliminary hearing.Mr Mills conducted his appeal in person. We hope that he is of the view that we have made attempts to focus his arguments in a way that would assist him in his presentation. We allow full account for the fact that he is not a lawyer, that he has no legal training or experience, and that he would encounter difficulties in trying to argue a legal point. We mention that because the whole purpose of a preliminary hearing is to attempt to identify in a case where it is not apparent, from the papers submitted, whether there is an arguable legal point to lay before this Tribunal on a full hearing. This Tribunal only has jurisdiction to hear appeals on points of law. Those are the limits on our powers set by Parliament. The Employment Protection (Consolidation) Act 1978 Section 136 is provides:
"(1) An appeal shall lie to the Appeal Tribunal on a question of law arising from any decision of, or arising in any proceedings before, an industrial tribunal under, or by virtue of, ... [ the Employment Protection Act or a number of other Acts which are specified there but are not relevant to Mr Mills's claim. ]"
We can only deal with questions of law. As we explained a number of times to Mr Mills during the hearing; we have no power to review the facts, to re-hear the whole case, or to question the correctness of the Tribunal's decision to prefer the evidence of one party to that of the other party. A question of law is a question on the interpretation of the legislation or the case law on the legislation, a question of whether the law has been correctly understood and correctly applied to the facts that the Tribunal have found; or in certain extreme cases, when the Tribunal has come to a decision which was not reasonably open to it on all the evidence before it.If Mr Mills is unable to satisfy us that there is an arguable point of law, there is no point in the appeal proceeding any further. The right course would be for us to dismiss it.In support of his appeal, Mr Mills deployed many arguments in the papers before us. He has been particularly helpful in submitting a skeleton argument which amplified the three grounds of his appeal. He has also submitted a number of other documents relevant to his relationship with Blue Circle Cement, and pieces of correspondence which relate to his complaints.The principal difficulty in Mr Mills's case has been to identify from all the details of his documents and his oral arguments, what precisely is the point of law on which he bases this appeal. The conclusion we have reached is that what he has done in the documents is to try and fit the complaints that he has about the decision and the way it was arrived at, under three possible headings which constitute points of law. The difficulty is that the material which he as sought to summarise under those headings does not fit the overall points that he is trying to make.Under the heading of "Perversity", Mr Mills has repeatedly made the point that the Tribunal ignored evidence given on his side, and wrongly accepted evidence which was given by or on behalf of Blue Circle Industries Plc. He says that is perversity. No reasonable Tribunal would have come to those conclusions on the evidence. A reasonable Tribunal would have accepted his evidence. Therefore, this is a perverse decision. Perversity is a legal ground of appeal. The misconception in that argument is that it is not perverse of a Tribunal to perform its principal function. The principal function of the Tribunal is to resolve disputes of fact in conflicting versions by the parties about the relevant events. It is important to bear in mind that there may be disputes between the parties at the Tribunal (there certainly were here) about what events are relevant. It is not the view of one or other of the parties which determines what is relevant to the issue. The Tribunal decides what is relevant.In this case there was only one issue before the Tribunal. That was whether Mr Mills was fairly dismissed on the grounds of redundancy in 1993. We are unable to find any misdirection by the Tribunal about the legal considerations which had to be addressed in deciding that question. The Tribunal set out the findings of fact. They correctly asked themselves whether or not there was a redundancy situation. In paragraph 21 of the decision they refer to the correct legal provisions in Section 57(1) and 81(2) of 1978 Act. They said it was for the employer to show the reason for dismissal and that it was one of the permitted reasons for dismissal that there was redundancy. That term is defined in the section set out, Section 81(2). They concluded:
"We are satisfied that from November 1992 there was a major redundancy programme with a view to minimising costs. As a result of that review the employers honestly and reasonably concluded that the company could dispense with the post of technical sales representative. On that and other matters we accept the evidence of the respondents' witnesses. Indeed, it is not challenged. ..."
The Tribunal correctly went to the next question relevant to the issue before it that is, whether under Section 57(3) as amended, Blue Circle had acted reasonably or unreasonably in treating that as a sufficient reason to dismiss. They referred to their conclusions on that. They referred to a line of cases establishing the proposition that, where redundancy becomes necessary, the employer should consult with the employee affected or his representative as appropriate about the order of discharge and the possibility of fitting the redundant employee into some other part of the undertaking.
"As to the order of discharge, in our view, there was selection at all. This was a situation where a number of people, in the same or similar posts, were affected by redundancy. Mr Mills was the incumbent. He argued for the post occupied by Mr Burford but this was rejected (and reasonably rejected) by the respondents, including Mr MacKenzie, on the basis that there was no vacancy. Mr Mills considered that the job occupied by Mr Burford was a combined role, ie sales manager and technical sale representative. Clearly it was not. Mr Burford was able to absorb the residue of the technical sales representatives role in 5% of his time.
So the Tribunal came to the conclusion, (and they went into further details on certain aspects, such as consultation), that Blue Circle had acted reasonably in treating redundancy as a sufficient reason to dismiss Mr Mills.In our view, there was no error of law in the way that the Tribunal resolved that issue. Mr Mills feels strongly that this is not the correct decision. That is something he will have to live with. We cannot reverse or query a decision of a Tribunal, because one or other party feels strongly about the injustice of the result. At many times during his submissions, Mr Mills made an appeal to `British Justice'. We reminded him that justice is administered in accordance with the law. The question is whether this result, which he does not like, was reached in consequence of not applying the law correctly. We are unable to find in this decision an error of law.That is not the end of the matter. There are the two further points of appeal, which relate not the decision of the employer, but to the decision of the Tribunal, namely, whether they reached it in a procedurally fair manner, as they are bound to, and whether bias existed in the Tribunal.Procedural unfairness and bias may amount to errors of law on a part of a Tribunal. They are errors, because it is fundamental to the administration of justice, in ordinary courts and tribunals, that decisions should be reached in a fair manner giving both sides a full opportunity to argue their case on points that are relevant and bringing forward what evidence they want that is relevant to the issues. It is fundamental to the adminstration of justice that the persons making the decision are not biased, that is not prejudiced by irrelevant considerations in their deliberations of the case.We have read the detailed affidavit of Mr Mills and his complaint about the way that the hearing was conducted. We have heard a lot of details of his complaints about the way in which he was treated in the Tribunal. We have looked at a number of other documents relevant to this complaint, including the transcript of a recording made at a meeting on 11th March 1994.The theme constantly appearing in these complaints relates to the scope of what is relevant to the issue the Tribunal had to decide. One aspect of the dispute that features strongly in Mr Mills's arguments is what happened in 1991 when he was demoted, and how that was relevant to what happened to him when he was dismissed in 1993. He has complained that he was not given a fair chance to put his side of the 1991 events. Blue Circle were. The Tribunal did apparently regard this as relevant because they spent the first few pages of the decision setting out a version of the 1991 events which Mr Mills says is seriously flawed. So he complains that the Tribunal were influenced in their overall assessment of his case, by false information: for example false information contained in a 1991 appraisal fed to the Tribunal by Blue Circle. He was not given a proper opportunity to put his side of the case. The Chairman or other members had exhibited bias in limiting his right to put his case. He made even more serious allegations about the conduct of the Tribunal. He thought the Tribunal were incompetent in the way that they handled his hearing. They were unfair in not letting him call all the evidence that he wanted to, but in letting the solicitors for Blue Circle do what he was not allowed to do. He feels unjustly treated. He has made other allegations relating to the intimidation of witnesses, and even in relation to the manner in which witnesses who did attend the Tribunal were sworn to give their evidence.He says overall that Blue Circle have really been allowed to get away with committing an injustice. They have only paid lip service to the obligations which they owed him. Mr Mills believes that he is the victim of a serious injustice, both at the hands of Blue Circle and at the hands of the Industrial Tribunal, which rejected his case.There is a lot more detail in all these papers. But it is not necessary, for the purposes of expressing our decision, to repeat everything said here.Our conclusion, is that on none of the three grounds of appeal has Mr Mills an arguable point of law. It is overall a complaint that this decision must be wrong because his arguments and his evidence were not accepted. That may be enough for Mr Mills to believe that this decision is wrong. As a matter law, it is not enough to persuade us that the decision is legally erroneous. For those reasons we dismiss the appeal at this preliminary stage.

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MR JUSTICE MUMMERY (PRESIDENT): I know you will not like that Mr Mills. I should tell you what you rights in the matter are. The reasoning which I have just given has all been recorded. It will be typed up and a transcript will be checked by me. You will receive a copy of that.You may be dissatisfied with the decision. You may be able to say now that you are. You may want to wait until you have read the decision. But if you are dissatisfied with it, as a matter of law you are entitled to appeal to the Court of Appeal in the Royal Courts of Justice. But you need our leave, or the leave of the Court of Appeal to do that.What do you want to do this afternoon? Do you want to ask for leave to appeal? Or do you want to consider the matter when you have had a chance to read this?MR MILLS : I would like to ask your leave to appeal.MR JUSTICE MUMMERY (PRESIDENT): No. It would be inconsistent with the reasoning we have just given. We do not think that you have a arguable case. The Court of Appeal might take a different decision. What you should now do, if you wish to pursue the matter, is to go to the Court of Appeal and ask them for leave to appeal. It is a comparatively straightforward system. Your case first goes before one Lord Justice of Appeal for him to consider on paper. He may give you leave. He may not. If he refuses leave you can ask for that to be reconsidered by two Lord Justices.We know that you are disappointed. We know what a dreadful thing it is for you to lose your job at your time of life and in current conditions of employment. We appreciate all that fully. But we cannot decide cases on our sympathy. We have to decide them according to law. In our view, your case, for the reasons mentioned, is not good enough to allow this to go on.