Riley v Safeguard Coaches [1997] UKEAT 928_96_0512

EAT

Riley v Safeguard Coaches

[1997] UKEAT 928_96_0512 · 1997-12-05

MR JUSTICE LINDSAY: We have before us by way of Preliminary Hearing an appeal by Mr T Riley in the matter of Riley v Safeguard Coaches. There was a hearing at London (South) Industrial Tribunal under the Chairmanship of Mrs A Royce on 13 October 1994. That decision was promulgated on 7 November 1994. The unanimous decision of the Tribunal is that the Applicant, Mr Riley, was not dismissed.

This matter has an appalling procedural history. Mr Riley has not attended today. The matter was listed for 10.30 a.m. It is now 12.01. No notice has been received; no telephone calls; no faxes; no communication indicating that he has any difficulty but is seeking to come. We will have to deal with it in his absence. Had he attended, we would, I think, have had to set out the appalling procedural history of this matter which at several stages includes orders being made against Mr Riley that he must produce an Affidavit within a specified period, under threat that otherwise his case would be dismissed.

On 3 June 1997, which was the last possible date to avoid a striking-out, an Affidavit was received on the subject which had been required to be dealt with by the EAT. In his absence I do not think it is necessary that we need to go into the procedural history, but the substance of the appeal, according to the Notice of Appeal at paragraph 6, is that Mr Riley, he being a coach driver, had been required to break regulations laid down as to drivers' hours. It is illegal, says Mr Riley in his Notice of Appeal, to take disciplinary measures for failing to break the laws of the land and the Tribunal failed to notify the relevant authorities of criminal acts, perpetrated, he says, by the Respondents. Mr Riley's Skeleton Argument is to the same effect.

However, there is absolutely no hint in the Decision or the Extended Reasons of the Industrial Tribunal that that was a ground that had been looked at or raised before the Industrial Tribunal. There is a long list in the Extended Reasons, paragraph 2, running from (a) to (o), of a whole series of allegations that Mr Riley had made in relation to conduct against his employer, Safeguard. Each of them is dealt with at some length and in some detail, but none of them has anything to do with Mr Riley being required to break the law, as applied by the drivers' hours regulations, or anything of a comparable nature.

At paragraph 3 of their conclusion, the Industrial Tribunal says this:

"..... For the Applicant it is submitted that all these events [that is a relation back to letters (a) to (o)] amounted to a campaign against him which culminated in him not going to Scotland as he had thought and this resulted in a state of mind which entitled him to think that there was breach of trust and confidence between him and the employer and justified him leaving the employment in terms which amount to constructive dismissal."

So that as far as the Industrial Tribunal was concerned, there was a long list (a) to (o) and that was the Applicant's case that was presented to them.

On that case the Tribunal concluded at the foot of their paragraph 6 - I think something has gone adrift in this last sentence, which reads literally:

"..... In those circumstances were do not find that the employers were not guilty of conduct which was a significant breach as described by Lord Denning in the Western Excavating case."

I am afraid that that must need some correction. What the Industrial Tribunal was finding was that the employers were not guilty of conduct which was a significant breach, according to that test. The Industrial Tribunal concluded in their paragraph 11 that:

"The Applicant's claim for unfair dismissal fails ...."

Mr Riley's IT1 makes absolutely no allegation of a kind relating to drivers' hours and so on of the kind on which he now relies. I will not read out Box 12 in full but we have looked at it and it contains no allegation of this kind.

We do not bar Mr Riley in any way from coming to this Tribunal, or from being heard by this Tribunal, by reason of the significant delay from 9 December 1996 to 3 June 1997, a period of delay which seems wholly attributable to him. It is not delay that bars from him success in this Tribunal but the simple feature that he cannot now raise an issue of a kind that was plainly not adequately (or at all, as it would seem) raised before the Industrial Tribunal at the hearing and had not been mentioned in his IT1. There is nothing to suggest that this new form of complaint had earlier been raised and it cannot now be raised in this appeal, which is, of course, directed only to points of law. We must therefore dismiss his appeal.