MR P J WILSON v SHEFFIELD CITY COUNCIL [2000] UKEAT 508_00_1511

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 508_00_1511Case No Appeal No. EAT/508/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P J WILSONAPPELLANTSHEFFIELD CITY COUNCILRESPONDENT
Before
His Honour Judge D M LevyDate 15 November 2000
[1]APPEARANCES For the Appellant MRS G WILSON Representative JUDGE LEVY QC We have before us today, a Preliminary Hearing of the proposed Appeal by Mr Wilson ("the Appellant") against a decision given by an Employment Tribunal sitting in Sheffield following a 4-day hearing, the last day of which was on 2 February 2000. The complaint before the Tribunal was that the Appellant had been victimised contrary to section 2 of the Race Relations Act 1976 and he had been unfairly dismissed.[2]The Extended Reasons are dated 7 March 2000, the date on which they were sent to the party. The first page of the decision shows a hearing only on Wednesday 2 February 2000. Mrs Wilson told us that she is now separated from the Appellant her husband, for whom she appeared today. She has made a number of points in her submissions which have lasted some 2 hours.[3]We will deal with the matters which we think require further investigation before this appeal proceeds to a full appeal. Mrs Wilson makes allegations that, for various reasons, in essence the Appellant did not have a fair hearing. First, she pointed out that the Appellant was told in advance of the hearing, that Mrs Wilson would be entitled to represent him at the hearings. In that respect we have been shown a letter at page 36 of the additional documents which had been produced for this appeal. It is dated from the Regional Secretary of Employment Tribunal in Sheffield to Mr Wilson and reads thus:
"I acknowledge receipt of your letter of 26 December 1999 and confirm that the tribunal have no objection to Mrs Wilson acting as your representative and witness at the tribunal hearing listed for 10-14 January 2000."
[4]It is apparent from reading the decision of the Tribunal that Mrs Wilson was not shown as representing her husband and in an Affidavit which was sworn setting out the complaints this matter was alluded to. We look paragraph 1 of an Affidavit sworn by Mr Wilson on 26 May 2000:
"When I arrived at the Tribunal on the 10 th January, the first day, I was very shocked when my chosen representative was denied the right to assist me in presenting my case before the Tribunal. Although I had written confirmation from Mr Middleton that Mrs Wilson could act both as my representative and witness, Mrs Wilson was not allowed to take part in any active part of the hearing. At one point when Mrs Wilson tried to establish her position as representative Mr David (that is the Chairman ) was very aggressive and abrupt to tell her to be quiet and sit down or shut up, or I will throw you out."
Mr Wilson continues:
"I found this to be very biased and prejudiced on the chairman's behalf because he placed no such restriction upon the respondents representative Mr Parkin. This action placed me in an impossible position when I tried to present my case, I could not examine or re-examine myself during the cross examination stages of the hearing."
[5]A second point on procedural matters of which Mrs Wilson, on behalf of the Appellant's complaint is set out on page 4 of her Affidavit sworn on 26 May 2000:
"On the third day of the hearing Mr Wilson was very upset when he was told by the Chairman that he was the same chairman who was present at a hearing the CAB representative for Mr Wilson arranged to be taken to the Tribunal, even though it was out of time. Mr Wilson did not remember Mr David, the Chairman from 10 months previously."
[6]The Appellant, through his wife, makes the submission that it was inappropriate for the Chairman who had already heard some other case possibly to be the Chairman hearing this case. It may well not be a good submission standing on its own because a judge has heard a case where a claimant fails he may not take part as part of a Tribunal in another case in which the claimant is a party.[7]A third point is raised in Mrs Wilson's Affidavit: when Counsel for the Respondent wanted to give the Appellant or her some papers which they refused to take, the Chairman himself told her:
"I am not telling you to take them Mr Wilson, I am ordering you to take them, and you are not leaving this tribunal without them."
It was submitted it was no part of the Chairman's duties to direct them what papers they should take and order them not to leave the Tribunal without them.[8]A fourth complaint as to procedure is also raised in the Affidavit sworn by Mrs Wilson: at the end of the third day, it was decided by the Chairman that the first closing speech should be made by Counsel for the Respondent. There was then a delay of some weeks before the Appellant came back for the fourth day of the hearing in Court to respond to that address. It is not stated in the Affidavit but, in the course of her submissions, Mrs Wilson told us that there was no discussion between either herself or Mr Wilson and the Chairman as to the order of speeches and it came as a complete surprise and shock to her that the Order of speeches was such that the Appellant was forced to respond to the Respondent's absence after a considerable interval to the closing speech by Counsel, rather than, as we had understood she and the expected, that the Appellant should make his closing address first. The Chairman was invited to comment on all these matters and his reply is contained in a short document dated 19 June 2000 signed for the Regional Registry to the Tribunals in these terms:
"I write with reference to the above case and acknowledge receipt of the affidavits provided under cover of your letter dated 9 June 2000. The Chairman, Mr David, directs I reply he cannot think that any of his comments would serve a useful purpose, suffice it to say, that he does not accept the allegations made."
[9]With due respect to the learned Chairman we would draw his attention to a recent judgment of the President, Mr Justice Lindsay, in the panel in the case of Facey v Mydas Retail Security & Another , Appeal No EAT/966/98, EAT/1137/98 when guidance was given by the President to steps where allegations are made that a party has not had a fair trial.[10]In our judgment it is helpful to say the least if the Chairman does comment on direct allegations on procedures followed in the Tribunal on the matters which we have identified, so that this Tribunal can the better try to determine what further steps should be taken by it in this Appeal.[11]Any applicant to an Employment Tribunal is entitled to a fair trial. If there is an appeal on the grounds he has not one, it may well ultimately to be decided that an appellant fails, but, when serious allegations which have been raised and not answered, that cannot be known. We feel that before this matter goes for a full hearing there should be a further preliminary hearing and in that regard we think it would be useful if the Chairman were to respond to the matters to which we have alluded above. It would also in the circumstance of this case, be of assistance if the other members of the Employment Tribunal who sat with him were invited to give their comments on these matters.[12]As to the other matters which Mrs Wilson on behalf of her husband wishes to raise on the Appeal, they amount in summary to these. First, that the Tribunal was wrong to hold that, as it did in paragraph 23 of the Extended Reasons, that there had been no race discrimination. The background of this case is that the Appellant was dismissed by the Respondent following a number of hearings conducted by the staff of the Respondent. Originally, when there was a disciplinary hearing on 24 February 1998, he faced 7 charges. The first 2 charges were:(1) You have not resided in your service tenancy at 225 Norwich Row since approximately May1995 contrary to the requirements of your contract of employment.(2) You falsified your time sheets on 15 occasions to a total of 7 hours 57 minutes and there were 5 other allegations.[13]At that first hearing those 2 charges were found proved and on each the Applicant was dismissed. Charges 3 and 4 were also found proved and on each a final written warning was a sanction. On charges 5, 6 and 7 no action was taken.[14]From that, as is recorded in paragraph 20 of the decision the Applicant appealed. That was heard by the Head of Housing. It took place over 3 days and only Counts 1 – 4 were considered. The Head of Housing upheld the charges on 1, 2 and 3, and allowed the Appeal on the 4 th Count. There was then a further Appeal, (which is summarised in paragraph 21 of the Extended Reasons) to a Committee of 3 Counsellors. On that, the Applicant unsuccessfully applied for re-hearing of all the 7 original charges but the Panel decided, so the Chairman said, in the Extended Reasons:
"sensibly in our view, to limit the Appeal to the 2 charges, 1 and 2 for which the Applicant was dismissed."
[15]In a written decision the Applicant was informed that his Appeal had been unsuccessful. The Applicant's dismissal was therefore confirmed. The complaint is made that there was no proper review of the Appeal's procedure by the Employment Tribunal.[16]Having carefully considered the Extended Reasons as we have, we do not find that point sustainable. We find paragraph 23 of the Extended Reasons telling and we can see every reason on the matters, which are found by the Tribunal for the Tribunal to have reached the decision, which it did.[17]In this regard, therefore, we do not feel it appropriate to allow an Appeal to go forward, on the basis that the matters below were improperly considered nor do we think it appropriate for an Appeal to go forward on the basis that the complaint under the Race Relations Act was dismissed.[18]In paragraph 23 of the Extended Reasons the Chairman said this:
"The applicant has 2 separate claims. First that he was victimised and eventually dismissed because he had assisted his wife in making her allegations that she had been treated less favourably over the dog incident in 1994. The second claim is that his dismissal was unfair. We accept Mr Parkin's submission that the fundamental question relevant to both issues is what was the true reason for the dismissal. The dismissal was decided by Mr Bailey and independently confirmed after 2 properly conducted appeals. It was not a decision by Mr Benn and although we accept that Mr Benn disliked the applicant and found him an extremely difficult man to manage we do not think that his feelings influenced the decision makers. We think that the reason for Mr Bailey's decision was that the statement of case which strongly supported the 2 most serious allegations was not answered or explained by the applicant. In our view it is noteworthy that that statement of case made no mention of Mrs Wilson's allegation of race discrimination and we conclude that that matter played no part whether consciously or subconsciously in the mind of Mr Bailey or in the minds of those who heard the appeals. It follows that the applicant has not shown that he was victimised within the meaning of Section 2 of the Race Relations Act 1976 and that this aspect of his complaint must be dismissed."
[19]Those conclusions seem perfectly proper from the matters which have been set out prior to that in the Reasons and there are no prospects of those matters succeeding on an Appeal.[20]In the circumstances, what we propose to do is to dismiss the Appeal on matters other than that there has been an unfair trial. As regards that issue, we have indicated the steps which should be taken. In the circumstances, we think this appeal should be listed for a second preliminary hearing when the Chairman and his colleagues have had the opportunity to give us information, which we have sought in this judgment. It would be of assistance if the Notice of Appeal was amended to delete the grounds of Appeal which we have dismissed and to list the grounds of unfairness relied on[21]After we had given judgment remitting this preliminary hearing for a further preliminary hearing having disallowed certain grounds of appeal, we received a document from the Appellant seeking leave to appeal from this decision. We have considered that Application and we refuse leave to appeal. The Appellant is, of course, entitled to seek leave to appeal from the Court of Appeal.