MR ROBERT EVANS v SDL INTERNATIONAL [2000] UKEAT 1442_99_1812
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondent MS TESS GILL (Of Counsel) Instructed by Owen White & Co Senate House 62-70 Bath Road Slough SL1 3SR JUDGE ALTMAN PRELIMINARY RULING At the outset of this appeal, which is listed for full hearing, the Appellant has sought leave to raise 3 matters notwithstanding the fact that they were not fully, or at all in some cases, canvassed in his original notice of appeal and notwithstanding the fact that at a preliminary hearing on 27 May 2000 the Employment Tribunal directed that the appeal was allowed to proceed "to a full hearing of the Employment Appeal Tribunal solely on whether the Chairman erred in law and deciding to sit alone to consider the question of jurisdiction as a preliminary matter although it involves decisions about issue of fact."[2]There are 3 matters raised by the Appellant. The first is that the Respondent has behaved dishonourably and frivolously and should be debarred from taking any further part in the proceedings. In support of this a number of matters are raised. First of all the Appellant claims that when he was being transferred to the United States of America a eulogistic reference was provided by his employers to the Immigration Authorities to facilitate his entry to work in the United States, whereas a statement prepared by a Mrs Bostick for the current proceedings suggests that there was no job for him in the United States. And he says that there is a contradiction there between the two sets of information provided, first, for unfair dismissal proceedings and then for the current ones which show such bad faith on the part of the Respondents in the way in which they have prepared for the court proceedings that they should be debarred from taking further part in it.[3]At this stage we do not consider that that amounts to such a matter. Secondly the Appellant complained of the late delivery of the skeleton argument. We have not sought an explanation for that, but it is a procedural slip which is often made by parties without its illustrating bad faith and on our finding it does not illustrate bad faith in this case. Thirdly the Appellant is concerned that the way in which the case was treated was as a preliminary hearing, whereas he arrived at the Tribunal all ready to deal with everything. He knew that wrapped up in the main hearing would be an issue about jurisdiction, but he had not extracted it in such a way as to deal with it as a preliminary hearing. He had been advised to prepare for that issue and we understand he did not object at the time.[4]We cannot see that any of those matters goes to demonstrate dishonourable or frivolous behaviour in a way that the rules envisage. If at all, there may be a conflict on the evidence which would if this case goes for a full hearing provide very interesting material for cross- examination of the Respondents' witnesses, but at this stage there is simply a witness statement which appears on the face of it and without our knowing what the explanation may be, to contradict something that was said before. That does not give rise to grounds for debarring the Respondents. We refuse the application for leave to raise that matter, first of all because it is probably not open in the light of the direction on the preliminary hearing for us to give leave and secondly, because it has no reasonable prospect of success.[5]The second matter that was raised was really a head of damage in the event of a claim for wrongful dismissal succeeding; a new head which was as a result of the alleged withdrawal by the Respondents in some form or rather from the Appellant's funds in the United States. That simply goes to the quantum of the claim. It does not seem to us to affect the issues of law and if this matter goes back to the Tribunal either this Tribunal, or the Employment Tribunal that hears the case can direct what issues are to be heard including that one. But that could be dealt with at that stage if it arose.[6]The third matter is not quite so straightforward. It goes to the substantive issue which the Chairman considered. The preliminary hearing before the Employment Tribunal gave the decision to which I referred and today's hearing is set to deal with that issue and the Respondents are prepared only for that issue today and accordingly we are proposing to deal only with the question of whether the Chairman erred in law in the way in which he determined to sit alone.[7]However, it is right that we should note that in dealing with the issue of jurisdiction as an issue for appeal the Employment Appeal Tribunal do not appear to have given a judgment on the dismissal of that matter. We were referred to case C-412/98 Group Josi Reinsurance Company SA v Universal General Insurance Co (UGIC) 13 July 2000. It also appears that the decision in the European Court of Justice post-dated the hearing before the Employment Appeal Tribunal and whilst it does not invent new law the Appellant considers he has an argument that it is sufficiently important a clarification of the law as to give rise to a requirement in the interest of justice that the issue of jurisdiction should be revisited on appeal either by review of the preliminary hearing of by appeal to the Court of Appeal.[8]What we propose to do is to deal with the sole issue before us today without pretending, or without claiming, necessarily to be finally disposing of all matters as well. If after today's hearing (depending on how he goes) the Appellant wishes either to seek a review of the decision of the Employment Appeal Tribunal or to appeal to the Court of Appeal, that would be a matter entirely for him, and he could take his own or others' advice upon it. Nothing that we have said so far should be regarded as an indication one way or the other as to the correctness of that course or what the outcome should be. But it is simply that we make a procedural direction that we will deal today with the question of the Chairman sitting alone and nothing more. JUDGMENT "The appeal be allowed to proceed to a full hearing of the Employment Appeal Tribunal solely on whether the Chairman erred in law in deciding to sit alone to consider the question of jurisdiction as a preliminary matter although it involves decisions about issue of fact." "Would a Chairman kindly review my request, made some time ago, that a full panel of three members hear the case. The reason for my request is, the case may turn on the facts rather than the law, and a three-person panel is, I submit, more appropriate than a Chairman sitting alone." There is reference in there, because of the use of the word 'review', to some preceding discussions but we have been told of none by the Appellant and in any event it was a clear request that required consideration. The body of that letter then goes on to point to a number of issues that were relevant. First of all, is the juxtaposition of the fact that it appears that the Appellant's employment was terminated in America on the ground that the project management was no longer going to be carried out there, with a press release, a matter of months after the employment of the Appellant came to an end, indicating with some excitement what was effectively exactly the opposite. The relationship therefore between the American and the English contract was something that was flagged up and indeed the Appellant asked for a witness order in relation to this. "The Respondent has no objection to being dealt with by the Chairman alone, particularly as the first point of issue is one of jurisdiction, which is a matter of legal submission rather than assessment of evidence." "Breach of Contract to be listed before a Chairman sitting alone". "Having considered the matter, and with the benefit of his background knowledge of the issues gleaned from the hearing on 4 June, Mr Hollow directed on 23 July that the breach of contract claim be listed before a Chairman sitting alone." "Proceedings specified in sub section (3) should be heard in accordance with sub section (1) if a person who, in accordance with regulations made under section 1(1), may be the Chairman of an Employment Tribunal, having regard to:a. whether there is a likelihood of a dispute arising on the facts which makes it desirable for the proceedings to be heard in accordance with sub section (1),b. whether there is a likelihood if an issue of law arising which will make it desirable for the proceedings to be heard in accordance with sub section (2)c. any views of any of the parties …d. whether there are the proceedings which might be heard concurrently … decides at any stage of the proceedings that the proceedings have to be heard in accordance with sub section (1)"