Rear Admiral T J England v Hampshire County Council [1998] UKEAT 822_97_1307

EAT
Rear Admiral T J England v Hampshire County Council
[1998] UKEAT 822_97_1307 · 1998-07-13
MR JUSTICE MORISON (PRESIDENT) : This is a most unfortunate matter. Rear Admiral England appeals against a decision of an Industrial Tribunal which was promulgated on 1 May 1997. The decision of the Industrial Tribunal is set out in writing. It is a decision arrived at after a four day hearing by a full panel, that is, by a Chairman and two lay members. The Tribunal concluded that Mr England had not been dismissed for a reason connected with Health and Safety but by reason of conduct and that he did not have two years continuous employment with the Respondents, the Hampshire County Council.He was employed by the Hampshire County Council from 7 November 1994 until 12 June 1996 as the River Hamble Harbour Master. He presented to an Industrial Tribunal a complaint in relation to the circumstances in which his employment came to an end. He asserted that he had been unfairly dismissed and that he was dismissed for refusing to respond to a command to attend a meeting which, if he had acceded to that command, would have put him in breach of health and safety regulations and code of practice and would also have resulted in him committing an offence under the Wireless Telegraphy Act and also would have involved the employers in such an offence.His IT1 made it plain that he had less than two years continuous service and it must have been apparent therefore, as we think, that he was relying on the special provisions which apply where a person alleges that he has been dismissed for a health and safety at work reason. In such circumstances the two year qualifying period is not a necessary prerequisite to the bringing of a complaint and where that is the reason for dismissal, the dismissal is thereby unfair.The Respondents in their IT3 did not address the question of health and safety at work but confined itself to dealing with the lack of two years continuous service. The full terms of the IT3 are these:
"The Applicant had less than two years' service with the Respondent at the time of his dismissal."
There was no issue between the parties, therefore, as to the length of service of the Applicant and that he had less than the requisite period of employment were he to be relying on reasons other than health and safety.Despite that, the Industrial Tribunal wrote to the Respondents on 14 October 1996 as follows:

Dear Sir/Madam

The Chairman considers that under the rules the preliminary issue as set out below may be suitable for hearing by a Chairman sitting without lay members if the parties consent. If you consent to it being so heard could you please notify me in writing by 28 October 1996. If your consent is not received by that date the case will be listed for hearing by a full Tribunal.

Preliminary issue - whether the Applicant had two years continuous service."

A copy of that letter was sent at the same time to the Applicant's representative - who probably was a person who did not have legal qualifications.The parties were then sent a notice of a hearing described as 'Notice of Hearing of a Preliminary Point'. The Notice of Hearing says this:
"The hearing will be limited to consideration of the preliminary issue set out below. You are responsible to ensure that all the witnesses you may wish to call can attend on the hearing date. Does the applicant have the necessary two years continuous service?"
On 6 December the matter came before a Chairman sitting alone, Mr Belcher, parties having indicated that they were content for the matter to be dealt with by a Chairman alone.At that hearing it became clear to the Council and to the Tribunal that this was a section 100 of the Employment Rights Act 1996 case. Even though that point had been made plain in the IT1, it apparently had been overlooked by both the Council and the Industrial Tribunal. Accordingly the learned Chairman suggested that the hearing should be adjourned until 20 December.It is not apparent to us precisely what the purpose of that adjourned hearing was to be. We have been told (and accept) by the Council's representative that it was thought that the Chairman would be looking at the case to see if there was sufficient doubt about the merits of the contention that there was a health and safety reason for the dismissal to justify the Tribunal in not sending it forward for a full hearing.The matter came on before the Industrial Tribunal Chairman again on 20 December. On that occasion Mr England gave evidence. The Industrial Tribunal Chairman considered documentation which was provided to him on behalf of the council and he had the benefit of being taken through the council's case in writing, although no witnesses were called on behalf of the council.That hearing led to a conclusion in the sense that what purported to be a written decision was promulgated. It was called 'Decision on Preliminary Point' and says:
"1. The dismissal was connected with Health and Safety matters.
2. The Tribunal has jurisdiction to hear the application.3. I give leave to amend the IT3 and further the applicant will respond to that within 14 days. The respondent will serve on the Tribunal and the respondents their amended IT3 on or before 14 January 1997."It would appear on its face therefore to have been a decision under Rule 6 on a question as to Mr England's entitlement to bring the proceedings. On its face it appears to be a conclusion that, because the reason for the dismissal was connected with health and safety matters, he had a legitimate complaint to make. In other words, if it had been followed through, the Industrial Tribunal Chairman should have recorded that by reason of the dismissal being connected with health and safety matters the dismissal was thereby unfair.However, when one reads the terms of the reasons for his decision it becomes plain that this was not a final determination of the issue as to the reason for the dismissal and indeed, with respect to the Chairman, he cannot have thought that it would have been fair or just for him to have arrived at such a conclusion, bearing in mind that he heard no evidence from any witness on behalf of the council. He said at paragraph 27 that he had:
"...come to the conclusion that in this case there [was] a clear health and safety issue which played a major part in the actions of the applicant. [That] through his professional training in the Royal Navy [he learnt] that there are certain things in life that have to be attended to and one of those is health and safety and he took a very firm line with those in authority with regard to that issue."
The Tribunal Chairman went on to say:
"...I am satisfied in this case as I have said, that there was a health and safety issue surrounding all of this issue, certainly from the moment of the written warning being given.
In these circumstances, as I find, that this issue surrounds a health and safety issue and that the dismissal, I consider was tainted with that health and safety issue, this matter will go forward to a full hearing and I hold that there is jurisdiction for a Tribunal to hear this matter, despite the fact that the applicant did not have two years continuous service."In the light of that determination the learned Chairman obviously was of the view that the task he was performing was in some to see whether there was sufficient material relating to the reason for the dismissal to justify the matter going forward to a full hearing and it was on that basis that he gave leave to the council to amend their IT3 to deal with the health and safety matter.In the light of the formal documentation in this case it is not surprising that both parties were put into an extremely difficult position when it came to the full substantive hearing. As we have been frankly told by learned Counsel on behalf of the Hampshire County Council, he was concerned that the subsequent full panel of the Industrial Tribunal would feel themselves bound by the ruling which had been made by the Chairman on the earlier occasion. He was therefore concerned to see how the council's position could best be protected in the light of that concern.From the Applicant's perspective he could be forgiven for thinking that the battle which he had joined with his former employers had been substantially won. He told us that he understood that there would be further debate about the reasons for the dismissal but against the background of the health and safety issues which had been determined by the Industrial Tribunal on the first occasion. So from his perspective he no doubt thought that the second Industrial Tribunal would find itself effectively bound by what the learned Chairman had said albeit that there would be some room for manoeuvre as to the precise interpretation of his decision.In truth, as it seems to us, the learned Chairman on the first occasion had no jurisdiction to deal with the matter as he purported to do. The rules of the Industrial Tribunal pursuant to which he was acting are quite clear as to the rights of an Industrial Tribunal Chairman when sitting on his own. He is entitled, where appropriate, to sit on his own to hear and determine any issue relating to the entitlement of any party to bring or contest proceedings to which the Originating Application relates. That is set out in Rule 6(1).As we have indicated on earlier occasions Chairmen would be well-advised not to sit on their own, even when entitled to do so under Rule 6(1) where there are likely to be significant issues of fact or where it is likely to be the case that a knowledge of practice and procedure in the work place would fall for consideration. The lay members of an Industrial Tribunal bring to the determination of issues before the Tribunal their collective wisdom based on their knowledge and experience of matters of which the learned Chairman may not himself have had any experience.What the Industrial Tribunal also may do, where they are of the view that an application is fairly hopeless, is to require a pre-hearing review with the powers set out in Rule 7. Of course, in addition, an Industrial Tribunal may at any stage, under Rule 13(2)(d) strike out an application or a notice of appearance on the grounds that it is scandalous, frivolous or vexatious. The rules do not give Industrial Tribunal Chairmen power to consider whether a case is fit for hearing before a full panel of the Industrial Tribunal otherwise than under Rule 7. This Chairman, if he was going to exercise the powers conferred by Rule 6, was required to hear and determine whether the reason for the dismissal was one which fell within section 100. He was not entitled to consider the question as to whether there was an arguable point to be raised by Mr England in relation to his complaint that he had been dismissed for such a reason.Accordingly, the parties were, as we see it, put into a difficult position and the matter was therefore raised at the second Industrial Tribunal. It will be borne in mind that the Applicant did not have the benefit of any legal representation. In paragraph 1 of his Grounds of Appeal, he makes this submission:"In paragraph 5 of the Extended Reasons" (in the second decision) "the Chairman states that the issue before the Tribunal 'was essentially whether or not Rear Admiral England (the appellant) was dismissed on a ground arising under Section 100 of The Employment Rights Act 1996'. However, this matter had already been decided by a Preliminary hearing. The statement by its Chairman, in paragraph 29 of his Reasons" (that is a reference to the first decision) "is pertinent. It reads:
'... I am satisfied in this case as I have said, that there was a health and safety issue surrounding all of this issue, certainly from the moment of the written warning being given'
. In this respect it is also pertinent that the dismissal letter... makes clear that the decision to dismiss the appellant was based on events which were perceived to have occurred after that written warning was issued. The fact that the respondent did not submit either an application for Review or an Appeal against the Preliminary Decision and offered no new evidence whatsoever to the subsequent Tribunal to refute it or the above facts makes the subsequent Tribunal's reversal of the earlier Tribunal ruling that the dismissal 'was connected with Health and Safety matters' perverse."That contention, as it seems to us, puts in relatively succinct form the dilemma which the parties were in. They were in that dilemma through no fault of their own but by reason of the way this region has dealt with this particular case. We have to say that we find it unsatisfactory that an Industrial Tribunal should have proceeded in the way that they did in this case and put the parties in to the position in which they have found themselves.The question then arises for us as to what we should do in the light of these difficulties. On behalf of Hampshire County Council we were urged to accept that although there may have been procedural irregularity, Rear Admiral England either knew or ought to have known at the second Industrial Tribunal hearing, that the question as to the reason for his dismissal was now to be considered at large.Whilst we can understand the reason why he makes that submission to us, and it would have been strengthened considerably if Rear Admiral England had had the benefit of legal representation, we are not prepared to accept in this case that Rear Admiral England understood that the first decision had no legal effect. Indeed, paragraph 1 of his Notice of Appeal makes that plain and, secondly, what he told us during the course of the hearing this morning confirmed that view.It was further submitted to us that, in any event, the Industrial Tribunal had concluded that Rear Admiral England was 100% to blame for his own dismissal so, it was said, it would be unfair and unjust and unnecessary to refer the case for a further hearing before a differently constituted Industrial Tribunal. Again we understand the force of that submission but equally Counsel appreciates that if the new Industrial Tribunal, when it looks at the matter afresh, were to conclude that there was a health and safety issue in this case underlying the reason for the dismissal then their approach to the question of contributory fault will probably be different because, it seems to us, the question of blameworthiness is inextricably entwined with the question as to the true reason for the dismissal.It is most unsatisfactory that the parties find themselves in this position because a new hearing is not what either of them, in effect, would wish. The Rear Admiral sought to suggest to us that the second and third grounds of his appeal were sufficiently forceful to enable us to say that the second decision of the Industrial Tribunal was inherently defective and that effectively we could overturn it and substitute a finding that he had been dismissed for a reason connected with section 100.We have to say, having looked at those points, that the most that he could reasonably have expected from the Appellate Tribunal would have been, had he persuaded us, that there should be a further hearing before a freshly constituted Industrial Tribunal. In those circumstances we rejected his slightly peculiar submission, as we saw it, that we should approach the appeal on the basis of points 2 and 3 in his Notice of Appeal rather than on point 1, to which I have referred.It seems to us that justice can only be done in this case between the parties if there is a further hearing however unattractive that course appears to be. The parties have been engaged in battle between themselves for quite some period of time. They have had two adjudications; as it would appear; the evidence has been gone over with some care and detail. The events surrounding the dismissal took place a longish time ago. It is going to be difficult, in those circumstances, to have a satisfactory rehearing but the alternatives are equally unacceptable.It seems to us that we cannot allow a procedural mishap of the sort that has occurred here to interfere with the doing of justice between the parties. However unattractive it seems to us, justice demands that there is now a proper hearing before a full panel which will simply approach the issues joined between the parties in a straightforward way, without reference either to the first decision or to the second decision which have been arrived at in this case. There needs to be a rehearing before a new panel who should approach this matter on the basis that they are looking at it for the very first time. Accordingly, the appeal is allowed. The matter is remitted back for a rehearing by a freshly constituted Tribunal with a full panel.I am concerned about the circumstances in which the case has been dealt with by the Industrial Tribunal sitting at Southampton and I direct that a copy of this judgment be sent to the President of the Industrial Tribunals for his consideration and wise advice for the future.