Cox v Dorniver Ltd [1995] UKEAT 788_94_1702

EAT

Cox v Dorniver Ltd

[1995] UKEAT 788_94_1702 · 1995-02-17

MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Mr David Cox against the decision of the Industrial Tribunal held at Bedford on 1 February 1994. The reasons for the decision were promulgated on the 11 May. For those reasons the Tribunal unanimously decided that Mr Cox had not been unfairly dismissed by his employers, Dorniver Ltd. Mr Cox sought a review of the decision. The Chairman who had sat at the original hearing, Mr Willans, refused a review on the grounds that it had no reasonable prospect of success. That was notified to the parties on the 6 April 1994.

Mr Cox appealed to this Tribunal by Notice of Appeal served on the 27 June. In support of his appeal, he has made a detailed affidavit dated 7 July 1994, setting out in detail his complaints about the way in which the Industrial Tribunal Hearing at Bedford had been conducted. Following the normal procedure, the Affidavit was sent to the Chairman for his comments. He gave those comments in a letter of 9 August. Mr Cox has seen those comments.

The purpose of the preliminary hearing today is to decide whether the appeal raises an arguable question of law. This is an Appeal Tribunal, not an Industrial Tribunal. It does not re-hear cases. It only has power under the Employment Protection Act to hear appeals on points of law. A point of law is a point on the interpretation of an Act of Parliament or regulations or the application of the law to the facts of the case. The main complaints that Mr Cox has are against the procedure adopted by the Chairman and the way the hearing was conducted. Before examining the complaints, it is necessary to see identify the legal rules that govern the procedure at a Tribunal. If the Tribunal does not act in accordance with the rules, then there may be an error of law which we could revere. But if it acts within the rules, there is nothing that this Appeal Tribunal can do. The two relevant rules which govern procedure at Industrial Tribunals under the 1993 Industrial Tribunals Regulations , are first, Rule 9:

"The Tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings."

Rule 13 says that:

"Subject to the provisions of these rules, a tribunal may regulate its own procedure."

In his Affidavit Mr Cox sets out the very detailed criticisms that he has of the hearing. There is no doubt in our mind that he is genuinely and sincerely of the view that he has not been given a fair hearing. He initially made an allegation of bias, but he withdrew that at the beginning of his oral submissions to the Tribunal today. He does have other allegations. He complains particularly that his cross-examination of the Respondent was suspended half-way through the third question. He was not given an opportunity to resume it. He says that the Chairman assisted the Respondent in the presentation of his case and allowed a panel member to heckle and show prejudice, and that he, Mr Cox, was not able to give his evidence and present his case as he wished. The Chairman made misleading remarks, including a false indication about the result of the case. He says that different procedures were adopted for the parties. Those procedures favoured the Respondents. Overall, Mr Cox says that if he had been given a "fair crack of the whip" at the hearing and been allowed to cross-examine the Respondent in the way that he wished, he would have demonstrated that he was a perjurer and a liar. He was not permitted to do this. In those circumstances he was not given a chance adequately to present his own case or to challenge the defence to the claim of unfair dismissal put up by the Respondents.

The Chairman in his letter does not accept these criticisms. He deals with them one by one and gives his comments on the criticisms. His assertion is that the hearing was properly conducted, that Mr Cox was given assistance in having the procedures explained to him, given guidance during the course of the hearing and given every consideration. As to the allegation that the cross-examination had been prematurely terminated, the Chairman's comment is that Mr Cox made "heavy weather" of the cross-examination in that, rather than asking questions, he persisted in giving his evidence to the Tribunal. As to other matters, it is said that Mr Cox did give his evidence fully as to why he felt he had been unfairly dismissed. He gave that evidence on affirmation. The Chairman denied that assistance had been given to the Respondent in presenting case. He said it was the other way round, that it was Mr Cox who was assisted. It is disputed that there was any heckling or prejudice shown by the panel member. It is denied that any misleading remark was given. The Chairman says he does not know what remark he is supposed to have made which led to Mr Cox accusing him of giving a false indication of the result. We have examined these criticisms in some detail that

Mr Cox having taken account of the Chairman's answers. We have explained to Mr Cox that the Tribunal has a very broad discretion about the way it conducts hearings under the rules and that he could only continue with this appeal if there was an arguable legal point. We are satisfied, on looking at the papers, including the Affidavit and the skeleton argument, that there is no arguable point of law on this appeal, either relating to the way in which the Tribunal conducted the hearing or in the reasons they gave for their conclusion that Mr Cox was not unfairly dismissed. In those circumstances there is no point in this appeal being pursued to a full hearing.

We appreciate the depth of Mr Cox's dissatisfaction, both with his treatment from his employer and about the way the Industrial Tribunal conducted the hearing. But, as there is no point of law, there is nothing that we can do to alleviate his sense of grievance. In those circumstances the appeal is dismissed.