Bache v Essex County Council [1998] UKEAT 636_97_1702

EAT

Bache v Essex County Council

[1998] UKEAT 636_97_1702 · 1998-02-17

MR JUSTICE KIRKWOOD: This is an appeal from part of a decision of an Industrial Tribunal sitting at Bury St Edmunds on 24, 25 October and 2 December 1996, dismissing the Applicant's, Mrs Bache's complaint of unfair dismissal on the ground that the employment ended upon her resignation and in such circumstances that she had no claim.

Mrs Bache sought to appeal against that decision and lodged a Notice of Appeal that ran to some ten pages, in which she made a number of complaints including a number of complaints about the manner in which the Chairman had conducted the hearing.

The appeal came before His Honour Judge Hicks here at the Employment Appeal Tribunal on 17 September 1997 for a Preliminary hearing. On that occasion the learned Judge gave a judgment of the Tribunal allowing the appeal to proceed in part only and rejecting the greater part of the grounds as being unarguable. What the learned Judge said was this:

"What is alleged in the appeal is that the Industrial Tribunal and, in particular the Chairman, misconducted itself in the hearing of the application and a number of such allegations are made, the first of which is that Mrs Bache's representative, Mr Leggett, was prevented from acting as such and it is quite clear and not in dispute, as appears from the Chairman's comments and indeed, the Chairman's notes of evidence, that at a certain stage in the proceedings Mr Leggett, having represented Mrs Bache up to the point, the Tribunal retired, discussed the question, returned, excluded everyone except the parties and their representatives and effectively had a discussion as to whether Mr Leggett should be permitted to continue as representative and decided that he should not. He was permitted to remain and to assist Mrs Bache and, so far as the Chairman's notes and comments go, it would appear that on at least one later occasion he was permitted to ask questions, namely questions which amounted to re-examination of Mrs Bache herself after she had given evidence and been cross-examined. But apart from that and possibly any other exceptions, Mr Leggett was confined to giving advice and assistance to Mrs Bache, but was not permitted to represent her in the sense of addressing the Tribunal or questioning witnesses. We say no more about whether that ground is a sufficient ground upon which to allow an appeal or not, because we do consider that it is arguable and therefore it will proceed to a full hearing and it is not for us therefore to make any comment about its weight or what the likely result of the appeal on that point should be."

The ground of the appeal, as amended, and sent to the Tribunal by Mr Leggett on 23 September, is this:

"The Tribunal during the afternoon of the first day of the hearing improperly ruled that Mr Leggett could no longer represent the Applicant and could not examine or cross-examine witnesses."

As Judge Hicks indicated, there is available to us a letter of comment from the Chairman together with Notes of Evidence. In his letter the Chairman said this:

"1. Mr Leggett, the applicant's friend and the person assisting her in the hearing, did not demonstrate a sufficient understanding of his task so as to be able to help the applicant and, though he was unfailingly courteous, was unnecessarily prolonging the proceedings by his method of cross-examination and apparent failure to grasp the purpose and focus of the hearing."

The Chairman then makes reference to certain passages in the notes. A little later the Chairman observes that later in the hearing, indeed on the third day of it, the Applicant, Mrs Bache, was given a costs warning and the Chairman attached a transcript of what was said verbatim in regard to that, and that says (I do not propose to read it all, but it is part of the warning with regard to costs):

"..... Mrs Bache was originally represented by Mr Leggett but at an earlier stage in the proceedings we discharged Mr Leggett from the onerous duty of representing the applicant because it was clear to us that a fair and more balanced representation would have been made if Mrs Bache represented herself with the assistance of the tribunal from time to time."

A fair and more balanced representation.

When we look at the Notes of Evidence to see what happened, we note that on the morning of the first day there came a time when the Applicant, according to the notes:

"Applicant asks via Mr Leggett to be able to cross-examine at this point. He is floundering."

There is reference on page 7 to an intervention by the Applicant. There is a reference drawn to our attention by the Chairman on page 41 when explanation had to be given to try to keep Mr Leggett on focus as to what the issues were. At the foot of page 42 it says this:

"(The tribunal adjourned to discuss. Mr Leggett is causing enormous delay and diversion in the development of the evidence. Applicant also cross-examining. Losing sight of issues and won't be guided. All on tribunal agree to "sack" Leggett. His questions are not questions at all. Is causing huge delay and clouding the issues)."

How it comes about that the private deliberations of the Members of the Tribunal were recorded, we do not know, but that is what we have.

The hearing then resumes:

"The tribunal room cleared save for the presence of the parties, so as not to cause embarrassment to Mr Leggett. Tribunal view put. Applicant agrees to represent herself with Leggett assisting. Leggett told to assist, but not to examine or cross-examine witnesses.

Adjourned from chambers to open tribunal."

Casting an eye over the Notes of the rest of the hearing there is reference to Mr Leggett being asked to be quiet when he was seeking to intervene in Mrs Bache's evidence. There is further reference a little while later to him being quiet and being advised to make notes for re- examination. There is reference to his being allowed to re-examine Mrs Bache to assist Mrs Bache by prompting her with any matters she may have forgotten. That is the information that we have as to the course of the hearing.

Section 6 of The Industrial Tribunals Act 1996 reads:

"(1) A person may appear before an industrial tribunal in person or be represented by – (a) counsel or a solicitor (b) a representative of a trade union or an employers' association, or (c) any other person whom he desires to represent him."

One of the arguments advanced before us by the Appellant is that that Section gave Mrs Bache an absolute right to representation by the person of her choice. It is conceded on behalf of the Appellant that the Chairman has some power to control the course of the proceedings before him. We have been referred to paragraph 9(1) of Schedule 1 to The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 :

"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 . [Our underlining.]

We reflect that the words of the Chairman in his costs' decision of 2 December, to which we have referred, generally echo the words of the Regulations.

Beyond that, and more generally, the discretion of the Chairman, in our judgement, extends to necessary regulation of the conduct of a representative. The Chairman can discourage, disallow even, irrelevant questions. He may refuse to receive matter advanced by the representative if it is not relevant, relevant that is to the issue or issues the Industrial Tribunal has to decide. But suppose, despite all the encouragement or discouragement of the Chairman, the representative persists with lengthy and irrelevant material? It is not particularly hard to see such a situation arising when a representative being untrained and inexperienced in these things, is nonetheless enthusiastic about what he perceives to be his case and the rights and wrongs of it, and cannot be deflected from that enthusiasm. Again, what of the representative - though we emphasise it is not this case - who is persistently offensive to witnesses? Mr Maitland-Jones says that the remedy lies in the power to respond to contempt of court.

In our judgement the power of the Chairman and, indeed, his responsibility to conduct the case in a business-like and fair fashion, exists short of the extreme sanction of contempt proceedings. We do not accept that the Chairman is powerless in such an instance. The Chairman has available to him those resources of skill and experience which are essential to his exacting task; he has the authority to manage the case and the conduct of it. Circumstances in which a Chairman could properly feel it necessary to entirely disempower a representative must be very rare indeed. Some form of control short of that, will almost always suffice. But the power of control is there, to be exercised judicially and judiciously. We are satisfied that it is there because we are satisfied of the Chairman's duty to control and conduct the proceedings in what I have described as a fair and business-like manner.

An example of such control is demonstrated by this case. The Chairman raised the matter with the parties in private and put the Tribunal's anxieties to Mrs Bache. I have already referred to the passage in the Notes.

The first and main point in the appeal is whether the Chairman had power to act as he did. We have decided that he had that power and the appeal cannot be allowed on the basis of that ground. The second part of the ground of appeal is whether, even if he had power, the Chairman exercised it properly. I deal with that shortly by saying that the Chairman had the feel of the case. He had before him the problems that were being presented and of the possible injustice to Mrs Bache by the manner in which the case was being distracted from its issues, and we have nothing to assist us, in reaching conclusion, to show that the Chairman was manifestly wrong in the way he acted; or in assisting us to have any conclusion that anything occurred in the way in which the Chairman exercised his power that should lead us to over-turn his decision. The result is that this appeal is dismissed.