MR R LEWIS v ROYAL BOROUGH OF KINGSTON [2001] UKEAT 0221_00_0305

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0221_00_0305Case No Appeal No. EAT/0221/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R LEWISAPPELLANTROYAL BOROUGH OF KINGSTONRESPONDENT
Before
Her Honour Judge A Wakefield Mr D J JenkinsDate 3 May 2001
[1]APPEARANCES For the Appellant MISS NAOMI CUNNINGHAM (of Counsel) Instructed by: Free Representation Unit 4th Floor Peer House 8-14 Verulam St London QC1X 8LZ For the Respondent MISS RACHEL CRASNOW (of Counsel) Instructed by: Director of Legal Services Royal Borough of Kingston Upon Thames Guildhall Kingston Upon Thames Surrey KT1 IEU JUDGE A WAKEFIELD This is an appeal by Mr Robert Lewis against a Decision of an Employment Tribunal sitting at London South on 19 October 1999, by which his Originating Application alleging constructive unfair dismissal was dismissed upon withdrawal of that application by Mr Lewis on that day.[2]In normal circumstances, where an applicant has withdrawn an Originating Application, and it has been dismissed by an Employment Tribunal, in a Decision made in consequence of that withdrawal, any appeal against the Decision of the Employment Tribunal would be bound to fail.[3]The circumstances of the present case are, however, not normal. The background facts so far as relevant, appear from the documents we have seen, to be the following. The Appellant was employed as a resident caretaker at Christchurch Church of England Primary School. He had first worked for the Royal Borough, in another capacity, in 1982 and, so far as he was concerned, was still in their employment when he left the job of caretaker at the school on 24 April 1999.[4]His Originating Application presented to the Tribunal on 8 April 1999 (during a period when he was in receipt of pay in lieu of notice) named the Royal Borough as the Respondent. By a Notice of Appearance dated 28 April 1999 two Respondents were named, firstly the Governing Board of the Christchurch Church of England Primary School and, secondly, The Royal Borough of Kingston Upon Thames.[5]In the events which subsequently occurred at the Employment Tribunal hearing, the issue as to who was the Appellant's employer, which might be relevant on the merits of the unfair dismissal claim, was never resolved.[6]The Notice of Appearance denied that the Appellant had been dismissed and asserted that he had resigned from his position, just prior to a proposed holding of a disciplinary hearing. There is no dispute that by a letter to the school dated 24 March 1999, the Appellant did resign on the basis of a severance package which had been offered, including notice and holiday pay and a 'fair reference'.[7]In the letter the Appellant refers to the fact that he had decided to resign in order that he and his family would be rehoused. This is an apparent reference to information which he had been given by the Royal Borough that if he were to be dismissed from his employment there would be no obligation on the Borough to rehouse him, whereas if he resigned, and thereby lost his tied accommodation, housing would be provided.[8]In the Originating Application, under the section "Details of your complaint", the Appellant set out that he had received no verbal written warning as to his conduct, that he had been suspended from duty following an alleged incident on 27 November 1998 (which incident he denied had occurred), that he was interviewed at the school on 5 January 1999 under the school's disciplinary procedure and that at that interview:
"The allegation against me was not proved, but they stated that on the balance of probabilities they found against me."
He further stated that he had never seen the disciplinary procedure and was employed by the local education authority. The final paragraph of the details on the form reads:
"I resigned and am now claiming constructive unfair dismissal"
[9]The matter came on for hearing at the Employment Tribunal on 19 October 1999, as I have said. The Appellant was represented by Mr Sadler from the Citizens Advice Bureau and the Respondent was represented by Counsel. What then occurred is set out in paragraphs 2 and 3 of the Employment Tribunal's Decision, as follows:
"2 In opening submissions, the Applicant, who had been employed as a caretaker informed the tribunal that he intended to claim that the Respondent had breached his contract of employment by informing him, through its personnel department, that he would not be rehoused by the Council if he were to be dismissed for misconduct. The Applicant was unable to identify what term of his contract of employment had been breached by the receipt of this information and then submitted that he would argue, as an alternative that giving him this information amounted to a breach of trust and confidence. The Respondent submitted that the Applicant had to point to a repudiatory breach and show that he resigned as a result of that breach. The Applicant had not particularised a breach of contract in the originating application. It was clear from his letter of resignation that the Applicant's resignation had not been in response to any breach. 3. The Applicant, through his representative, was informed, 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. Thereafter the Applicant withdrew his complaint and the originating application was dismissed on withdrawal by the Applicant."
[10]It was also asserted in a letter before us today from the Citizens Advice Bureau, that the Chairman warned Mr Sadler that he could personally be liable in costs if the matter went ahead and the Appellant lost. On the basis of this warning Mr Sadler is said to have advised the Appellant that he could no longer continue to act for him. These assertions are, however, not accepted by the Respondent today and the Appellant places no reliance upon them. We therefore leave that aspect out of the account in our decision.[11]What is certain is that following the exchanges set out in paragraphs 2 and 3 of the subsequent Decision, Mr Sadler and the Appellant had a discussion which resulted in the Appellant deciding to withdraw the Originating Application.[12]In our view, the way in which the Employment Tribunal conducted itself on this occasion resulted in a denial of a fair hearing of this Originating Application. While we accept that a Tribunal may, and often should, explore with the parties any perceived weaknesses of the case, either at the outset or during the hearing, and may properly alert a party who might otherwise not know as to its powers regarding costs, what occurred in this case went far beyond the sort of useful impartial dialogue which can frequently assist in resolving or limiting the matters in dispute.[13]The Tribunal in the language which it used, even if it was not in fact the case, demonstrated a concluded view hostile to the Appellant. This caused the Appellant to abandon his claim. We are satisfied that he did that by reason of the pressures he felt to have been exerted by the Tribunal through their expressed view as to the merits of his case and the possible consequences to him in costs. He has been denied a fair hearing. This appeal therefore succeeds and the case must be reheard before a fresh Tribunal.