Vickerstaff v Edbro Plc [1996] UKEAT 1087_95_2205

EAT
Vickerstaff v Edbro Plc
[1996] UKEAT 1087_95_2205 · 1996-05-22
MR JUSTICE BUTTERFIELD : This is an appeal against the decision of the Industrial Tribunal sitting at Manchester, promulgated to the parties on 6 September 1995, whereby the Tribunal held that the Appellant had been fairly dismissed and dismissed his application. The proceedings were held in private pursuant to an Order made by the Tribunal under Regulation 8 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 .The Appellant was ordered to pay £501.50 costs to the Respondents. That Order was marginally in excess of the permitted maximum award and has subsequently been reduced to £500.The Appellant does not appear on this hearing and is not represented. The Appellant has made it plain in correspondence that he considers the Employment Appeal Tribunal in whatever constitution, to be irredeemably biased against his case and that this hearing if unsuccessful, is merely a necessary procedural hoop through which he must jump before taking his case to the Court of Appeal.In a letter dated 5 October 1995 the Appellant wrote to the Registrar in these terms:
"Although I am submitting an appeal to the EAT, I am only doing so, to ensure I do not eliminate an appeal to the Court of Appeal. You will note, that I charge the EAT, with assisting the Manchester Regional Chairman's bias and misfeasance.
I consider it totally inappropriate that the EAT should hear an appeal, as they are to be a co-defendant, along with my former employer, their solicitors, and the Manchester Regional Chairman of Industrial Tribunals, in my Conspiracy to Pervert Justice action.In the circumstances, I beg leave to "leap-frog" the EAT, and appeal direct to the Court of Appeal."The Appellant reiterated that request in a letter to the E.A.T. dated 7 December 1995 in which he said:
"As stated in my appeal application, I do not consider it appropriate that the EAT should hear this appeal, as they are a co-defendant in a conspiracy action, I have initiated in the High Court. Any adjudication by them will be a mockery, which will only add to their previous misfeasances.
In the circumstances, I again repeat my initial request that I be allowed to appeal direct to the Court of Appeal.If the EAT insist on holding a sham hearing, I will NOT be instructing Counsel, nor will I attend in person."There is no provision enabling this Tribunal to accede to the Appellant's request. We have carefully considered whether in the light of the allegations made, we should disqualify ourselves from hearing this matter. No member of this division of the EAT has any prior knowledge of this case. We are untainted by any contact with other members of the judiciary or other lay members who have sat on appeals brought by the Appellant and have thus concluded it is proper to continue with this hearing, notwithstanding the allegations made by the Appellant.In determining the appeal, we have had particular regard to the Appellant's Notice of Appeal, his written submissions, an Affidavit sworn by him and the exhibits thereto and his reply to a Skeleton Argument submitted by the Respondents.The facts giving rise to this appeal as found by the Industrial Tribunal are in summary as follows: the Appellant was employed Edbro Plc who are manufacturers and suppliers of hydraulic equipment. He took up that employment in 1986. By 1993 he was the Export Documentation Manager. On 8 November 1993 the Appellant prepared and sent to the Respondent's Finance Director, Mr Matthews, a private and confidential memo. It reads in part:
"When my employment with Edbro eventually ends, if the parting is acrimonious (as seems highly likely, in view of the current executive's autocratic, non-consultative style), I will certainly be notifying the appropriate National and International authorities of all Edbro's illegal and irregular activities."
The memo went on to cite a number of allegedly fraudulent and dishonest areas of operation within the Respondent company, but gave no details of the allegations. The memo did however assert that very serious damage would be caused to the Respondent's reputation and trading activities if the allegations were disclosed to the authorities. The Finance Director showed the memo to the Respondent's Chief Executive who decided that a full and thorough investigation into the Appellant's allegations should take place forthwith.On 10 November 1993 the Finance Director met the Appellant, informed him of the investigation and asked for his co-operation. The Appellant refused to provide any details of his allegations. He was warned that if he persisted in that refusal he would face disciplinary action. He did persist. On 11 November 1993 the Appellant was again interviewed. At the behest of the Appellant the interview was tape-recorded and at its conclusion a transcript was prepared which was signed by the Appellant as a true record of it. At the interview the Appellant again refused to co-operate. He also refused to provide copies of documentation he had removed from the company's premises without authority or permission and which he asserted proved irregular and illegal financial transactions, or to give any detail about his allegations.At the conclusion of the interview, the Appellant was summarily dismissed because of his refusal to co-operate with the investigation and his unauthorised use, and removal of, company documents. The Appellant did not pursue any internal appeal against the decision.By an Originating Application dated 15 December 1993, the Appellant complained to the Industrial Tribunal of unfair dismissal. He also made a separate claim under the Wages Act, claiming that the Respondents had made an unlawful deduction from his proper entitlement. On 2 March 1994 the Appellant applied for an order of discovery in those proceedings. His application was refused by a Chairman of the Industrial Tribunal. He thereupon appealed to the E.A.T. against that refusal. His appeal was dismissed on 23 June 1994. He did not seek leave to appeal against that decision to the Court of Appeal.On 20 June 1994 the Chairman of the Industrial Tribunal at Manchester informed the Appellant that his two complaints, that is to say the complaint of unfair dismissal and the complaint under the Wages Act, would be heard together. The Appellant objected to that course and again appealed to the E.A.T. against the Chairman's decision. His appeal was dismissed on 8 March 1995. Again he did not seek leave to appeal against that decision to the Court of Appeal. On 8 August 1995 the Appellant's two applications were heard by the Industrial Tribunal. His application under the Wages Act was successful. A Consent Order was made that the Respondents pay to the Appellant the sum of £501.50 by way of unlawful deduction from wages. His complaint of unfair dismissal was rejected. The Industrial Tribunal found the facts which we have summarised, and decided that the Respondents had dismissed the Appellant for gross misconduct. The Tribunal further found that the Respondents honestly believed on reasonable grounds and after proper investigation, that the Appellant was guilty of gross misconduct.Finally, the Tribunal considered whether the decision to dismiss fell within the bank of reasonable responses available to a reasonable employer faced with the Appellant's conduct. They concluded that the decision satisfied that test. The Tribunal further found that the Appellant's application was vexatious and ordered him to pay costs.By a Notice of Appeal dated 5 October 1995, the Appellant appealed against the decisions. The essential thrust of his appeal was that the Industrial Tribunal was biased and that the Tribunal had deliberately erred in law and failed to act fairly in the conduct of the proceedings. He also reiterated his complaints about the Interlocutory Orders which had been made, and asserted that the order for costs exceeded the permitted maximum. In his last assertion the Appellant was undoubtedly correct and as we have already observed, the award of costs has been reduced to the sum of £500. The Appellant swore an Affidavit on 2 January 1996 in support of his allegations of bias in accordance with paragraph 12 of the Practice Direction. The Affidavit dealt extensively with the conduct of the Interlocutory applications. So far as those matters are concerned, we are functus officio , that is to say, we have no power to enquire into them, since they have already been determined on appeal by this Tribunal.As to the substantive appeal now before us, the Appellant deposed that the Industrial Tribunal's finding that he had consented to the order in his favour under the Wages Act, was a blatant lie. Further, he contended, that the Tribunal was not entitled to order the hearing to take place in private. He also deposed that the Tribunal had erred in law in holding that the Respondents could regard his actions as gross misconduct; first, because he was not ordered to co-operate in the investigation and second, because he was entitled to take copies of the documents in order to expose the iniquities of his employers. The Appellant's Affidavit was submitted to the Industrial Tribunal Chairman for his comments. The Chairman rejected the allegations of bias and explained again, as he had in his decision, why the Tribunal had decided to hold the hearing in camera.We have carefully considered all the matters raised by the Appellant. Despite his repeated assertions of bias made in intemperate language, we are entirely satisfied that none is remotely demonstrated by any material placed before us. There were, it is true, some administrative errors made by the Industrial Tribunal office during the Interlocutory stages in dealing with the Appellant's correspondence, but no Appeal Tribunal would infer bias from such events. As to the Wages Act claim, the Respondents agreed at the hearing that unlawful deductions had been made, and it would thus have been pointless to hear and consider evidence on an application about which there was no dispute. No error of law arises in respect of that.The Tribunal was entitled in the exercise of its discretion for the reasons given in its decision, to hold the hearing in camera, for the reasons set out in full in the Extended Reasons. It cannot be argued that no reasonable tribunal would have exercised its discretion in that way and thus again, no error of law is disclosed. As to the substance of the unfair dismissal claim, the Industrial Tribunal were able to consider all the relevant evidence and were assisted by an agreed transcript of the interview leading to the Appellant's dismissal. They were plainly entitled to conclude as they did on that evidence. They properly addressed the relevant issue of law which arose. No error of law is disclosed on the findings of fact made, or in the application of law to those facts. In those circumstances this appeal is dismissed.In our judgment this was a frivolous and vexatious appeal, in the sense that it had no reasonable prospect of success, as the Appellant must have appreciated, and in those circumstances we order that the Appellant pay the costs of the Respondent in this appeal to be taxed if not agreed.