Cross v Nordiko Ltd [1998] UKEAT 1345_97_1706

EAT
Cross v Nordiko Ltd
[1998] UKEAT 1345_97_1706 · 1998-06-17

JUDGE J HULL QC :

This is an appeal to us by Mr Kevin Cross, an installation engineer formerly employed by the Respondents, Nordiko Ltd, in Havant.His employment began on 4 September 1995. He was in a responsible position, not merely did he carry out his engineering duties but he did, on at least one occasion, go abroad. There came a time when he was dismissed, on 27 March 1997; it was alleged as a result of his behaviour in the works.On 29 April 1997 he made a complaint to the Industrial Tribunal that he had been unfairly dismissed and he wanted compensation for the unfair dismissal. The employers put in their answer saying, first and foremost, that he did not qualify to bring a complaint of unfair dismissal because he had not been employed for two years, as the statute requires. Alternatively, they said they had dismissed him on a reasonable basis; in other words, that his dismissal was not unfair.The matter was dealt with by the Industrial Tribunal sitting at Southampton under the Chairmanship of Mr Adlem with two Industrial Members on 9 September and we would refer, first of all, to the way in which the Tribunal dealt with the matter.I am going to refer to their Extended Reasons which start at page 41 of our bundle:
"2. The issue before the Tribunal was whether the applicant had been unfairly dismissed but, as it was accepted that the applicant had been continuously employed for only eighteen months, the decision centres upon an application of section 100 Employment Rights Act1996 to the facts."
They say that they heard Mr Cross, who was unrepresented, and he called a work colleague, Mr Peters, who gave evidence on oath, and referred to a bundle of documents and produced various photographs. They heard from Counsel for the Respondents, he called witnesses too and produced another bundle of documents.They then found the facts. I do not need to go into them. According to the management side, he had been dismissed because of his behaviour which was loud and rather violent and inappropriate. What they were told by Mr Cross about that was that he did calm down. What he had done, he said, was merely "to have exploded in a controlled manner." Mr Cross told them that he was not creating a disturbance and he said that it had been admitted by the employers that the true reason that he had been dismissed was because of his complaints about health and safety at the premises. He has gone into a good deal of detail about that; I do not need to repeat it.He claimed that the employers had not dealt satisfactorily with most of his complaints. He said to the Tribunal that the records which had been kept and produced by the employers were simply fabricated. At least, he has told us that they were fabricated, he merely told the Tribunal that they appeared to be fabricated.They then dealt with the Respondent's case which was that they relied upon section 100 (1) (c) of the Employment Rights Act 1996. The Tribunal therefore referred to that sub-section and paragraph. They say that because two years had not elapsed it was necessary for the Applicant to establish that the case fell within section 100 (1) (c) of the Employment Rights Act 1996. They mention paragraphs which do not apply, they then quote the sub-section:
"To come within sub-section (c) the applicant had to show that:
"...the reason... for the dismissal is that... where... (i) there was no... representative or safety committee... he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety..."
If the Applicant can show that that was the cause of his dismissal then he may proceed for unfair dismissal notwithstanding that two years have not elapsed since he was first employed. But it is a strictly worded sub-section and paragraph. Among the things which Mr Cross had to establish was that there was no safety representative and the Tribunal made a finding about that:
"c) There was a workers' representative on Health and Safety. Although not elected by the workers at the date of the dismissal, Mr Eaves had accepted the appointment by the respondent and the evidence indicated that he had been accepted as such by the other workers including the applicant."
It follows, they say, as a result of that finding, that the section does not apply and therefore the application for unfair dismissal had to fail and they found, further, that the principal reason for the dismissal was not related to health and safety for various reasons and they said in particular that they preferred the evidence of the Respondent's witnesses.They found that the real reason for the dismissal was what they called the Applicant's, (Mr Cross'), demeanour towards his employer, which he had held for some time. Those events were not related to matters of health or safety but to objections to being passed over for a business trip which the Applicant admitted caused him to be angry.So that was what the Tribunal found and now we have the appeal and Mr Cross, who has very courteously attended before us today, has made five points which he says are at any rate capable of being points of law and asked us to consider those. The appeal is in our list under our Practice Direction because the Statute which creates our jurisdiction says we can only consider appeals on points of law. Unlike, say, The Court of Appeal or the Crown Court, we have no jurisdiction over questions of fact, or points of mixed law and fact: we are confined to points of law. It is in our list so that we can see whether there is any fairly arguable point of law on which we can allow the appeal to proceed, because otherwise it is, so to speak, a waste of time and has to be dismissed.The first point which Mr Cross asks us to consider is that there was an order made, as he said, for discovery of the visitors book. That was a book was kept at the factory and he said there was an order for production of that book, it was not produced and, says he, "that was a prejudice to me because I hoped to get the names of visitors, on various occasions perhaps, or at any rate on one occasion, and that would have enabled me to obtain evidence from people who were visiting, independent people perhaps, who would have verified or helped my evidence." That was the way he put it. There was an order that the Respondents should say, in effect, whether they had or had not got a visitors book and that appears not to have been complied with and in those circumstances the Tribunal had to deal with the matter and was asked to.But the Tribunal decided that in view of the issue which they were trying, which was whether there was a worker's representative or not, so that the case could be brought under section 100, it was not material to look at the visitors book and, as the Chairman, I think, put it:
"that rather became lost in the real issue," as they decided it was. It was a matter clearly of discretion for the Tribunal to decide what action, if any, they would take over the failure, if there was a failure, to say whether there was a visitors book. Among other things they could have adjourned the hearing, they could have ordered that the book not merely be disclosed in the way they had ordered but they could further order its inspection or copies to be taken of it: they thought it was completely unecessary in the circumstances. Discretion can only be criticised as a matter of law if it is clear that the Tribunal must have proceeded on some quite false basis. We cannot see that that is so at all. Nothing wastes more time than discovery, unless it is further and better particulars. We think that the Trbunal were quite entitled to take the view which they did and exercise their discretion to say "we make nothing of that, we're going to get on with the hearing."
Then Mr Cross takes a point which is not in his Notice of Appeal, that a witness did not attend because the witness was going on holiday and did not want to attend. He said that that witness would have told the Tribunal about the employer's attitude to health and safety. That, on the main point which was before the Tribunal would have been entirely irrelevant and the Tribunal was perfectly entitled, again in the exercise of their discretion, to go on with the hearing. They did that. The Tribunal told Mr Cross, "we're going to go on with the hearing and decide this case today."Then Mr Cross makes a complaint which to me, certainly, and I think to my colleagues, is more substantial, he says that "the bundle of documents was produced by the employers on the very morning of the hearing at 9.50." The hearing had been supposed to start at 9.45, and he, Mr Cross, had no time to study that bundle of documents properly. He made this point too, to the Chairman, he says, "and the Chairman said..." (this being the hearing which was starting at 10.25, more than half an hour later), "'Well you've had time'" Mr Cross recalls the words were used:
"'flick through it'"
. The Chairman has told us he did not recall using those words but he said it certainly was not a thick bundle and, again, it was a matter of discretion for the Tribunal whether they should continue in all the circumstances.It appears to us that the Tribunal was well-equipped, in spite of this, to deal with the situation which arose from the bundle. They heard, for example, the suggestion that the extracts from the accident book, or health and safety book, were fabricated. They were well qualified to consider that and other suggestions which were made to them. If they had considered it necessary to adjourn for that point to be dealt with fairly they no doubt would have done so. But the fact was that there was a slim bundle of documents; Mr Cross had had half an hour to look at it. It was quite plain that the point about fabricating the health and safety book had nothing to do with the main issue before them or little, at any rate, to do with it. The issue was: was there a workers' representative?Then, Mr Cross has told us, he complains that the Industrial Tribunal refused an adjournment: I think I have already dealt with that.He says, and this is another matter which is not actually in the Notice of Appeal, that Mr Eaves, the "workers' representative" was not elected. That is a point which he was entitled to press on the Industrial Tribunal as showing that indeed Mr Eaves was not truly the workers' representative. That the Tribunal has decided as a question of fact, and they say in their decision that there was a workers' representative.
"Although he had not been elected...he had been accepted as such by the other workers including the applicant."
That is a clear finding of fact and as I say, we have no jurisdiction at all to try again questions of fact or criticise the Tribunal's findings of fact, they are, as the Courts have repeatedly said, the Industrial Jury, and it is for them to find what the facts are. We have no right to interfere.So it seems to us, on analysis, that Mr Cross, having had the hearing in front of the Industrial Tribunal, has taken advantage of the opportunity by saying what he wanted to say to the Tribunal and we can only entertain an appeal if fairly arguable points of law are explained to us and shown to us to be part of the appeal. Having heard all that Mr Cross has had to say and, as I say, we are very grateful to him for coming, we are not satisfied that there is any fairly arguable point of law on which the Industrial Tribunal's decision and its way of proceeding can be challenged.We would just say that because of the approach which the Industrial Tribunal took, and in our view rightly took, which was that they were deciding the Preliminary Question of jurisdiction, they did not go into the rights and wrongs of the matter as Mr Cross would otherwise have wished to do and it may very well be that had they done so they would have found that Mr Cross was making very just complaints about certain matters and that the Respondents were wrong about those matters. They might have found all sorts of things. We cannot speculate about that. But in the very limited way in which this case is in front of us we have to say that this appeal has to be dismissed.