MR B BAILEY v SNELL & WILCOX LTD [2000] UKEAT 1042_99_1401

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 1042_99_1401

Case No Appeal No. EAT/1042/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR B BAILEYAPPELLANT

SNELL & WILCOX LTDRESPONDENT

Before

Mr Justice Charles Mr A C Blyghton Mr T C Thomas

Date 14 January 2000

[1]APPEARANCES For the Appellant MR C GASKILL (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE CHARLES : The parties to this appeal are a Mr Bailey and a Company called Snell & Wilcox Ltd who were his employers. Mr Bailey appeals against a decision of an Employment Tribunal sitting at Southampton, the Extended Reasons for which were sent to the parties on 20 July 1999. The decision of that Tribunal was that Mr Bailey was not dismissed by the Respondent company and therefore it followed that Mr Bailey was not unfairly constructively dismissed by the Respondent company and his claim for unfair dismissal was dismissed.

[2]Mr Bailey put in a Notice of Appeal and evidence in support of his appeal and today he has been represented by Mr Gaskill through the ELAAS Scheme. We are grateful to Mr Gaskill and thus the scheme for the help he has given. We would also record that, in our view Mr Bailey should be grateful for that help because that it enabled us, and him, to focus on issues in this appeal and to abandon points made by Mr Bailey in his earlier evidence. That evidence should remain on the file of this Tribunal. It may become relevant at a later stage during this appeal if disputes of fact as to what happened at the Employment Tribunal have to be determined.

[3]When the matter came on this morning Mr Gaskill produced to us a handwritten amended notice of appeal and we gave leave for the preliminary hearing of this appeal to proceed on the basis of the amended notice. In giving that leave we did so against the background of the formal abandonment by Mr Bailey of the other grounds in his original notice of appeal and therefore, on the basis of that abandonment, those grounds are now struck out and that is the end of them.

[4]During the course of submission and discussion this morning it has become apparent that there was a potential for particularising, amending or adding to the amended grounds of appeal put in by Mr Gaskill.

[5]Ground 2 thereof as presently drafted is in the following terms:

"The hearing before the Employment Tribunal sitting at Southampton on 30 June 1999 was not conducted fairly and impartially because the Appellant who appeared in person was not given a reasonable opportunity to state his case by reason of constant and unnecessary interruptions from the Tribunal Chairman and Members."

That reflects a general assertion to be found in paragraph 3 of Mr Bailey's first affidavit and can be categorised as an allegation of bias or procedural unfairness.

[6]It seemed to us that it was inappropriate for us to proceed at this stage to consider the question whether or not Ground 2 raised a reasonably arguable point of law. Our reason for that is that it seems to us that before we can properly consider that issue there is a need for what can be described as "further particularisation of that ground". We are comforted by the fact that Mr Gaskill accepted that that was the case and that it was necessary for Mr Bailey to identify with particularity:(a) the matters which he says he was precluded from putting before the Employment Tribunal,

(b) the manner in which he asserts he was so precluded by the Employment Tribunal, and

[7]The potential for the addition of a ground for appeal arises in this way. Mr Gaskill showed us the Interlocutory Order made in this case on 21 June 1999 by Mr Edwards, a Chairman of the Employment Tribunal sitting at Southampton (who was not the Chairman at the full hearing) where matters were identified which at that stage were thought to be relevant to the Appellant's claim that his letter of resignation was not a resignation but was a constructive dismissal, or put another way the Appellant's assertion that he did not resign voluntarily but was forced out. Some of those matters it is argued do not appear in the Extended Reasons. Indeed it was submitted to us that they were simply not dealt with. The potential for the additional ground is therefore that a relevant matter was not dealt with by the Employment Tribunal and we will give leave for Mr Bailey leave to further amend his grounds of appeal to add that ground.

[8]We also direct that Mr Bailey do provide the further particulars we have identified in paragraph 6 above and that the amended notice of appeal and those particulars be filed with this Tribunal within six weeks from today's date.

[9]We have given a lengthy period for this, having regard to the desirability that Mr Bailey should have the benefit of legal advice, if that can be obtained. The six-week period we hope will give time for him to make the relevant application for Legal Aid. We would record that if Mr Bailey is within the financial limits today's hearing has demonstrated that this Tribunal would be considerably assisted, as would Mr Bailey, by him being represented before us.

[10]We also direct that the bundle that is referred to and was before the Employment Tribunal is to be lodged with the amended notice of appeal and particulars within that six week period.

[11]We further direct that after that six-week period the matter be re-listed by way of Preliminary Hearing with a time estimate of half a day. At that hearing all the grounds in the emended notice of appeal will be considered.

[12]The above grants of leave to amend are given in accordance with our practice direction and guidance notes so that if this appeal is permitted to go ahead after the adjourned preliminary hearing the Respondents to it will have an opportunity to object to them.

[13]We give the adjourned preliminary hearing that time estimate because, in our judgment, if this Tribunal were to be of the view on that occasion that no reasonably arguable point of law was raised it would be helpful to the members of the Tribunal to have that length of time to deal with this appeal. That estimate will give them further time for preparation and hopefully it would enable them to prepare a judgment that day while matters were still fresh in their minds, even if that judgment is not delivered immediately but is handed down later in writing.

[14]We will however indicate that, if at the time the adjourned preliminary hearing of this appeal falls to be listed, it is known by the Listing Officer that the Directions Hearing in a case called Facey is about to be, or has just been, heard that this matter should be listed to come on after it is estimated the judgment in the Facey case has been delivered. But we would retain the same time estimate, unless after discussion with a judge the Listing Officer is directed by that judge to list it with a shorter time estimate because, for example, the Facey case indicated the directions that this Tribunal would be likely to make.

[15]So absent such a direction by a judge of this Tribunal that it should be a shorter time estimate we direct that this appeal should come on again by way of Preliminary Hearing with a time estimate of half a day.