MR R LEWIS v ROYAL BOROUGH OF KINGSTON [2000] UKEAT 221_00_1206

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 221_00_1206Case No Appeal No. EAT/221/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R LEWISAPPELLANTROYAL BOROUGH OF KINGSTONRESPONDENT
Before
His Honour Judge J Altman Dr D GrievesDate 12 June 2000
[1]APPEARANCES For the Appellant MR C HENNEY (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE ALTMAN: This is an appeal from the decision of the Employment Tribunal sitting at London South on 19 October 1999 in which they recorded by way of final decision the dismissal of the Originating Application on withdrawal by the Appellant. The matter comes before us by way of preliminary hearing to determine if there is a point of law to argue in full before the Employment Appeal Tribunal. The Appellant was the Caretaker at the Christ Church Primary School in the Borough of Kingston upon Thames. He began in June 1985. He was suspended on 30 November 1998 for an alleged incident that had occurred on 27 November 1998. The governors of the school initiated disciplinary proceedings. It was the Appellants case that during the course of the period of time in which the disciplinary proceedings took place, he was advised that as he lived in a school house there was a duty on the local authority to re-house only if he were not dismissed. He argued that his resignation from his post was driven by his need to have a home for himself and family on the back of the advice he was given. He would, we understand, indeed categorise it as part of the pressure upon him to resign. He denies the allegation against him and his originating application contends that the allegation was not proved but was found against him on a balance of probabilities.[2]The matter came before the Employment Tribunal. A member of the Citizens Advice Bureau represented the Appellant. The Respondents appeared by experienced counsel, Mr Laddie. The application never got off the ground because in the opening moments the Chairman questioned the Appellant as to the basis of his case. In their Notice of Appearance, the Respondent had argued that the allegations of misconduct had been investigated and that the Appellant had resigned before disciplinary proceedings commenced. They took the point that there would have to be a repudiatory breach to found a complaint of constructive dismissal. The Employment Tribunal advised the Appellant in the following terms:
"That bearing in mind his resignation letter and that he appeared to be unable to identify any breach of contract, that it was the opinion of the Tribunal that the Applicant's complaint did not have any reasonable prospect of success. Therefore the Applicant was warned that if at the conclusion of this case the Tribunal considered that he had in bringing these proceedings acted frivolously or unreasonably, the Tribunal would consider making an award of costs."
We have been told that immediately after this advice the Applicant withdrew to consider the matter with his Citizens Advice Bureau Representative who informed him that he would withdraw from representation and would play no further part in the proceedings as a result of what had been advised. Thereafter he was effectively representing himself. Thereafter the Applicant withdrew his complaint and the Originating Application was dismissed on withdrawal by the Applicant. The Appellant appeals from this and we are enormously indebted to Mr Henney, who has appeared under the ELAAS scheme, for his assistance. The following points seem to us to arise: 1. First there is an arguable point of law that, although the Originating Application was withdrawn, as this was embodied in a decision, and there is a right of appeal from the decision of the Employment Tribunal recording that. 2. Secondly, whether the Employment Tribunal erred in law in issuing a warning as to costs, bearing in mind that provision for such warning is embodied in regulation 7 of the Industrial Tribunal's (Constitution and Rules of Procedure) Regulations 1993, in which provision is made in paragraph 1 for the pre-hearing review to take place before the main hearing, that in paragraph 3 of the regulations there are procedures to give an applicant an opportunity to submit representations in writing, and that in paragraph 9 there is a provision that any member of the Tribunal who has in fact formed a judgment sufficient to give rise to a warning as to costs, should not also thereafter be a member of the Tribunal at the hearing of the main application. 3. Thirdly, the argument that the Employment Tribunal erred in concluding at the very outset of the hearing, on the face of the documents that there was no arguable case, or evidence of repudiatory breach.[3]The two matters which formed the substance of the Appellants complaints relate to the fact that first, he contended that the governors have no authority to embark on disciplinary proceedings for he, as a non-teaching member of staff was subject to the local education authorities procedures and secondly, to the element of what he conceived as being pressure to leave surrounding the advice as to rehousing. Mr Henney submits that there is a legal argument, and we agree, that first there was implicit in the Originating Application a claim for breach of contract as a result of following the wrong procedures. Secondly it may have been arguable on the facts that there was a 'resign or be sacked' situation, which gave rise to simple dismissal and thirdly that it was arguable before the Employment Tribunal upon the Originating Application that the combination of an improper procedure and pressure to resign were themselves breaches of implied terms of the contract such as to give rise to repudiatory conduct.