Phillips v Finn & Co [1999] UKEAT 1134_98_0503

EAT

Phillips v Finn & Co

[1999] UKEAT 1134_98_0503 · 1999-03-05

JUDGE LEVY QC :

By an application dated 3rd April 1997, Mr David Leonard Phillips claimed that he had been unfairly dismissed by J M Finn & Company, ["the employer"]. He also claimed payment in lieu of notice and that he had been the subject of sex discrimination. After a number of interlocutory hearings the case was heard by an Employment Tribunal sitting at London (North) by a panel chaired by the Regional Chairman, Mrs Mason. Her colleagues were Dr Deshmukh and Mr D Kurukulaaratchy. The hearing took three days, 2½ days of which were taken up with evidence, as we understand from Mrs Phillips who is representing her husband in circumstances which we will explain, and there was half a day of closing statements. Mr Phillips appeared in person and Mr Ridd, of Counsel, appeared for the employer. The decision of the tribunal was communicated, as we understand it, at the end of hearing, but the reasons were sent to the parties on 29th July 1998. The unanimous decision of the tribunal was that the employer did not dismiss Mr Phillips and his complaint of unfair dismissal was dismissed; that the employer did not unlawfully discriminate against Mr Phillips, either directly or indirectly, on the grounds of his marital status; and that the employer did not dismiss Mr Phillips without notice, entitling him to notice pay.

From that decision Mr Phillips appealed by a notice of appeal dated 3rd September 1998. This matter comes before us as on the ex parte preliminary hearing system.

Mr Phillips, Mrs Phillips has told us, unfortunately has a heart condition and is unable to attend today. She has addressed us for something short of an hour on his behalf today. She has prepared for this hearing a substantial skeleton argument of 10 pages with a number of attachments to it, which we have read.

Essentially, Mr Phillips' complaints fall into these categories. First of all there is relatively minor, if I may say so, complaint that the hearing was heard by the panel in a room which was marked "Chambers", there being a notice on the door which indicated whether or not the Tribunal was sitting in Chambers and it was the public could not enter. The notice throughout the hearing indicated that the public could not be admitted. The second complaint, a serious one, is made that the Chairman was biased during the hearing. The third complaint made is that the determination of the facts by the tribunal are perverse, that no tribunal reasonably addressing the evidence it had heard could possibly have come to the decision reached.

We will take those complaints in turn.

As to the complaint that the sittings were heard in Chambers. Because of the complaints of bias, Mr Phillips and Mrs Phillips had sworn affidavits on which the Chairman and the members have commented. The Chairman has explained that there is a panel on the door to her chambers which has "Private in Chambers" and it may be that during some or all of the hearing the wrong sign was shown. It may be that it would be better practice to ensure that no individual can inadvertently move the sign from one side to the other. However that may be, we are satisfied that no member of the public who wished to attend the hearing was excluded from being present if they so wished and nothing therefore turns on this.

As to the allegations of bias which are set out at some length, we have carefully considered all the matters which Mr Phillips and Mrs Phillips have raised in their affidavits and the response of the Chairman and the members to them. During the course of her oral submissions to us, Mrs Phillips had said that the Chairman had criticised her husband for using Perry Mason tactics, and we asked her where in her or her husband's affidavits such an allegation was made. She referred us to her affidavit and particularly to the paragraph on page 24 of our bundle, the penultimate page of her affidavit, at the end of the first paragraph there is this sentence:

"The Chairwoman was more interested in sneering at "Perry Mason" tactics than the fact that the Respondent, against the spirit of the Tribunal rules, not only ambushed the Applicant with new information but were in breach of an Order."

There it would be noted that the words "Perry Mason" are in inverted commas, but it is not suggested that it was a comment made by Mrs Mason, the Chairman, herself. In these circumstances it is not surprising that Mrs Mason has not answered the allegation which was made to us. This is an illustration of how Mrs Phillips suggests bias where none was in fact shown. We are satisfied, having looked at what Mrs Mason says as to why she felt it necessary to interrupt Mr Phillips as he asked questions and why she ruled to allow certain evidence not to be admitted as irrelevant, were decisions which an experienced Chairman properly would have reached and were proper in the circumstances. We are satisfied that the hearing was properly conducted.

The complaint has been made that the hearing was not heard at Stratford having been transferred from a different tribunal. A party cannot shop around for its tribunals and we accept Mrs Mason's explanation as to why it was appropriate for Mr Phillips' application to be heard by the Tribunal by which it was determined.

Mrs Phillips complains because there was communication about the application between Mrs Mason, as Regional Chairman, and Mr Rouse, the Chairman of the tribunal who had been conducting interlocutory matters about which other complaints were made. It is inevitable that there should be conversations between a Chairman and the Regional Chairman in such circumstances. We are sure that nothing that was said between Mr Rouse and Mrs Mason in any way influenced her one way or another in which the matter the hearing was conducted before her and her colleagues.

Any complaint of bias is always looked at very seriously by this tribunal. All of us have looked at the matters before us with care. We are satisfied that there was a fair and proper hearing before the tribunal.

We turn to the suggestion that the decision was perverse.

It is, in our judgment, an exemplary decision, after a hearing lasting 2½ days. The decision sets out the issues between the parties with care and at some length. At the centre of the dispute is whether when the Crest system was introduced at the Stock Exchange Mr Phillips was given a fair opportunity by the employer to understand and thereafter to operate the new system. On that, there was conflicting evidence, but at paragraph 9 of the extended reasons there are the following findings:

"... In November 1995, Caroline Lee, who was the retail broker contact, gave a seminar to J M Finn & Co in relation to Crest. This was attended by all the front office staff and five of the back office staff, including Mr Liedloff as operations manager. In December J M Finn introduced a computer-based training tutorial in relation to Crest which had been produced by Crestco. We find that that computer-based tutorial was accessible to all and that no specific password was required."

In her oral address to us, Mrs Phillips has drawn our attention to a line in a footnote of a memorandum where there is a suggestion that there was a limitation on those to whom the tutorial was based. The fact that there was such a line in a memorandum, does not, in our judgment, invalidate a finding of fact made the tribunal who had had the opportunity of hearing all the evidence and considering it. The fact that that footnote is not mentioned in the extended reasons is not one on which we think that Mr Phillips is entitled to complaint. Not every 't' must be crossed and every 'i' dotted in a judgment of an Employment Tribunal, because what are often very long decisions would otherwise be interminable.

To all of us it is clear from reading the decision that Mr Phillips was given opportunities to understand the Crest system, not all of which he took advantage, and that the conclusions of fact were based on evidence which the tribunal had heard.

We have considered all the points made by Mrs Phillips and by her husband in his affidavit and in her skeleton argument. It would, in our judgment, be wrong to allow an appeal to go forward in which we think there is no realistic hope of success at all.

There has been a full and careful hearing before a conscientious tribunal of the matters raised by Mr Phillips. Unfortunately for Mr Phillips, the decision went against him. There is no matter of law raised on which an appeal can go forward with any chance of success to a full panel. In these circumstances we will dismiss it at this stage.