Mustafa & Ors v Heydemann Shaw [1996] UKEAT 40_95_0102

EAT
Mustafa & Ors v Heydemann Shaw
[1996] UKEAT 40_95_0102 · 1996-02-01

JUDGE CLARK :

This is an appeal by three former employees of the respondent against a unanimous decision of the Leeds Industrial Tribunal sitting on 16th November 1994 that they were not unfairly dismissed. Extended reasons for that decision are dated 2nd December 1994.The Notice of Appeal dated 11th January 1995 was settled by Mr Aziz of the AK Action Bureau. It raises nine points which may broadly be described as procedural issues.A preliminary hearing took place before this tribunal on 1st May 1995 (Morison J presiding). Mr Aziz appeared on behalf of the appellants. On the basis presumably of one or more of those procedural issues the appeal was allowed to proceed to the full hearing.Mr Kibling, now instructed on behalf of the appellants has prepared two skeleton arguments. He abandons all but one of the procedural issues raised in the Notice of Appeal, and instead raises was we shall call substantive issues directed to the tribunal's findings and conclusions. He also now wishes to challenge the tribunal's order of costs made against the three appellants.We have dealt with the matter in this way, with the consent of both advocates: We treat Mr Kibling's first skeleton argument as a draft amended Notice of Appeal. We have heard full argument on each of the substantive issues raised and on the matter of costs. In so doing we have adopted and adapted the Court of Appeal practice on applications for leave to appeal out of time. Considering the merits of the amended grounds of appeal before ruling on the application for leave to amend.

Procedural History

Until 9th November 1994 the appellants were represented by their trade union, TGWU, and in particular their local District Secretary, Mr Rutherford. On that day he held a meeting with the three appellants in order to discuss an offer of settlement made by the employers. According to a note from Mr Rutherford which was annexed to the Notice of Appeal that meeting ended with the appellants indicating that they wished to be represented by a solicitor.The hearing of their complaints had been set for 16th November 1994. Notice of that hearing date had been sent to the parties by the Industrial Tribunal on 26th July 1994. Time was therefore short in which to instruct solicitors. A solicitor, Mr Hussain was instructed by the appellants. On 16th November 1994 at 10.30 a.m. Mr Hussain arrived at the Tribunal offices without the appellants or any witnesses on their behalf. He made an application for an adjournment on the basis that he had seen the appellants at 6 p.m. the previous evening. They had gone through the bundle of documents and disagreed with several matters there raised. According to Mr Hussain they instructed him to ask for an adjournment. His application was resisted on the basis that the hearing had been listed in July 1994; the respondent had brought seven witnesses to the tribunal at some expense and that the appellants had sufficient opportunity to prepare their case.The tribunal refused to vacate the hearing, but gave the appellants until 1 p.m. to attend. They duly did so and then instructed their solicitor that they would not take part in the proceedings. The Chairman persuaded them to stay and the first witness for the respondent, Mr Shearer, the Shift Manager, gave evidence in chief. Mr Hussain was invited to cross-examine the witness, whereupon he informed the tribunal that he was instructed not to cross-examine, and repeated the appellant's position that they would not participate in the proceedings. The Chairman explained to the appellants the consequences of their stance and allowed a further fifteen minutes adjournment so that they could consider their position. When the tribunal was reconvened Mr Hussain indicated that his clients' position was that the Industrial Tribunal should make its decision on the basis of the respondent's evidence and they would then appeal that decision. They asked for permission to withdraw; that was granted and they left. Thereafter the tribunal heard the respondent's witnesses, testing their evidence by reference to the appellants forms IT1, and found that the dismissals were fair for reasons to which we shall return.

The procedural issue

The single point now taken by Mr Kibling is that the Industrial Tribunal's ruling, refusing to vacate the hearing on 16th and 17th November 1994, was perverse.He frankly accepts that the tribunal has a wide discretion under rule 13(7) of the Industrial Tribunal Rules of Procedure 1993 , and that this Appeal Tribunal will only interfere with that exercise of discretion on one of the grounds helpfully set out by Arnold J in Bastick v James Lane [1979] ICR 778 , at 782B-C. The way he puts the matter is that in refusing the second application for an adjournment the tribunal erred in failing to take into account the prejudice suffered by the appellants in requiring them to continue with the proceedings on 16th November 1994. He says that the tribunal appeared to believe that because the respondent would call its evidence first, and because the hearing might run past the two days allocated, there would be adequate time for Mr Hussain to prepare himself. He points out that the respondent's witnesses could not be properly cross-examined unless Mr Hussain knew what was his case before embarking on that exercise.In our view:(1) the tribunal was entitled to form the view that the appellants had adequate time to arrange representation and provide proper instructions. The appellants claim that they had been let down, first by their union and then by their solicitor. We think that is highly questionable, but even if correct, it is well-established that ineptitude on the part of an adviser is not a matter for complaint before this tribunal. See Kumchyk v Derby City Council [1978] ICR 1116 , at 1123D.(2) We do not understand the tribunal to be saying that the appellants would suffer no prejudice if the hearing proceeded; merely that any prejudice could be ameliorated by the fact that the respondent would, as in the ordinary course, go first.(3) We accept Mr Kibling's submission that the tribunal must do justice to both parties. It weighed the factors advanced by both sides and concluded on balance that justice required that the matter should not be put off, but be dealt with on the date listed four months previously.(4) Far from finding the tribunal's decision not to adjourn the matter to be perverse, we are satisfied that the tribunal's handling of this difficult situation was impeccable.Accordingly we reject this ground of appeal.

The Substantive issues

Mr Kibling wished to advance two substantive grounds of appeal. First, that the tribunal's finding that the reason for dismissal was misconduct was perverse; secondly, that they failed to address Section 57(3) of the Employment Protection (Consolidation) Act 1978 - the test of reasonableness.

The Facts

Each appellant was employed in the carding room of the respondents mill as jobbers. Following serious trading losses in 1993 the respondent engaged consultants to look at ways to increasing efficiency. They came up with the idea of team working. The trade union was consulted and individual employees briefed as to what was involved - two of the appellants were briefed on 14th April 1994, and Mr Javed on 25th April 1994. In essence, they were required to perform one small additional job, that of "putting ends up and restarting machines" i.e. re-threading the wool after a fracture and re-starting the machine.The appellants objected to this additional task, described it as a token gesture towards team working. It had in fact been agreed with the unions in 1986, but the practice had lapsed. At the briefing meeting the appellants had been warned that failure to perform the task might result in their dismissal for gross misconduct.On 26th April 1994, for the first time the appellants' shift were informed by their shift supervisor that team working would begin. The appellants refused to perform the task. They argued for extra payment. No production took place on that shift. Accordingly they were suspended and disciplinary hearings convened for 28th April 1994. Throughout they had the advice of their union and an interpreter if required.Mr Shearer heard the disciplinaries.

(i) of reasons:

"The applicants indicated that they would do the extra job if they had time (at the end of the shift). Mr Shearer was of the impression that they were simply refusing to co-operate."
At the end of the disciplinaries, all three were dismissed for continuing to do as instructed. The men then appealed to the managing director, Mr Seaver, who heard their appeals on 6th May 1994. They maintained their stance. He concluded that they had been given every opportunity to co-operate but had deliberately ignored management requests and the advice of their trade union, he dismissed the appeal.Having set out the facts, the tribunal expressed their conclusions in paragraph 12 in this way:
"12. On the basis of the above the tribunal came to the decision that the applicant had been dismissed for reasons of misconduct, that in accordance with agreed procedure the respondents had taken the view that the applicant were guilty of gross misconduct. That, taking into account the disruption to production caused by the applicants on 26.4.94, the fact that all others in the factory had given their co-operation to the necessary changes instituted by the respondents, and that the applicant had been given every opportunity to change their minds on 26.5.94, the respondents had acted reasonably in treating the misconduct as a sufficient reason to justify summary dismissal. Further, the tribunal were satisfied that the manner of the dismissal had been in accordance with agreed procedure. The tribunal decided, therefore, taking into account section 57 of the Employment Protection (Consolidation) Act 1978 that the dismissal of the applicants was fair and the applications were therefore dismissed."
In our judgment the two substantive grounds of appeal which Mr Kibling seeks to argue are wholly without foundation. It is abundantly clear that the reason for dismissal was not just that the men had refused to perform the new task on 26th April 1994, but that when seen by Mr Shearer they had maintained their refusal to accept the instruction unequivocally; instead they had hedged by saying that they would perform it if they had time at the end of the shift. Mr Kibling's attempts to persuade us that the appellants had agreed to obey the instruction after 26th April 1994 fly in the face of the tribunal's express findings, particularly at paragraph 11(i) of the reasons. The tribunal was perfectly entitled to conclude that the reason for dismissal related to conduct.Equally, we see no merit in the suggestion that the tribunal failed to address the question posed by Section 57(3) of the Act. In paragraph 12 of the reasons the tribunal set out the material facts which led them to conclude, following the wording of Section 57(3), that the respondents acted reasonably in treating the misconduct as a sufficient reason to justify summary dismissal.In these circumstances we can see no grounds for interfering with the tribunal's decision.

Costs

Mr Kibling addressed a further argument in relation to the award of costs, dealt with by the tribunal in paragraph 13 of the reasons in this way:
"13. The respondent's representative made an application for costs against all three applicant. The tribunal considered this in the light of the powers given in Rule 12(1)(a) of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993 and made an award of costs in the sum of £500 against all 3 applicant jointly on the grounds that their conduct during the proceedings had been unreasonable."
He accepts that the appellants conduct during the Industrial Tribunal proceedings held on 16th November 1994 was unreasonable. However, he submits that this award was designed to punish the appellants for their conduct, not compensate the respondent compare Davidson v John Calder Ltd [1985] ICR 143 , at 146E-F.We were concerned that Rule 12 (1)(a) of the Industrial Tribunal Rules 1993 required that the unreasonable conduct must itself cause additional costs to the other party, but on considering the wording of the rule we accept that this is not necessary. There must be unreasonable conduct; the other party must have incurred costs. There was and they did.Accordingly we have concluded that it was properly within the tribunal's discretion to award costs in this case. We are not satisfied that the award was made to penalise the appellants.Finally, as to the amount of the award, we are satisfied that there was sufficient material before the Industrial Tribunal to justify a finding that the respondent had expended at least £500 in connection with the claim. As to the means of the appellants to pay, normally there should be an enquiry as to this by the tribunal, but since the appellants chose to walk out they can hardly complain that no such enquiry was held.In the result we can find no basis for overturning any part of the tribunal's decision. Leave to amend the Notice of Appeal is refused. The appeal is dismissed. Leave to appeal is refused.