MR D SEECKUN v MRS L S WICKS [2001] UKEAT 1193_99_0202

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1193_99_0202Case No Appeal No. EAT/1193/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D SEECKUNAPPELLANTMRS L S WICKSRESPONDENT
Before
Mr Justice LindsayDate 2 February 2001
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON MR JUSTICE LINDSAY (PRESIDENT) : We have before us as a preliminary hearing the appeal of Mr D Seeckun in the matter of Seeckun v Mrs L S Wicks . Mr Seeckun has appeared in person before us today. The chronology of the matter is that on 19th April 1999 Mrs Wicks presented IT1 for unfair dismissal and breach of contract. She had been employed, she said, from 1995 to the 18th February 1999.[2]On 7th May 1999 Mr Seeckun and his wife put in an IT3 which was really a simple denial of the claim.[3]On 21st May 1999 Mrs Wicks provided further details of her claim.[4]On 9th July 1999 there was a hearing at the Employment Tribunal. On 29th July 1999 the decision was sent to the parties. It was a decision of the Employment Tribunal at Plymouth under the chairmanship of Mr A D Puttick sitting with Mr Foster and Mr Crowley. It was unanimous and it said:
"(1) the applicant was unfairly dismissed. It is ordered that the respondent pay to the applicant the sum of £2,970.98 therefor. (2) The respondent is in breach of contract and is ordered to pay the applicant the sum of £103.50 damages."
[5]On 31st August 1999 a Notice of Appeal was received by the Employment Appeal Tribunal which included several passages critical of the Chairman's conduct of the hearing - it will be convenient simply to use the word "bias" to include allegations of such a kind.[6]The Employment Appeal Tribunal's Practice Direction requires that allegations of bias need to be supported by an affidavit, not only so that the complainant can swear to whatever his or her complaint is, but so that the complaint can then be passed on to the Chairman or to members of the tribunal below for their detailed comments. Here, there was correspondence on that subject inviting or requiring Mr Seeckun to supply an affidavit, but that was not done. On 2nd August 2000 the Registrar made an order consequent upon Mr Seeckun's failure to supply an affidavit as to the allegations of bias. The order said:
"UPON the failure of the Appellant to provide a sworn affidavit in accordance with paragraph 9 of the Practice Directions 1996 AND UPON the failure to respond to Employment Appeal Tribunal letters dated the 4th day November 1999 and the 27th day of June 2000 and the Employment Appeal Tribunal Order [ I apprehend that would have been an unless order ] dated 14th day of July IT IS ORDERED that all allegations of bias or improper conduct contained in the Notice of Appeal dated the 26th of August 1999 be struck out"
[7]That order was appealed by Mr Seeckun and I heard the appeal in chambers on 3rd October 2000 and my decision was:
"IT IS ORDERED that the Appeal be dismissed in accordance with the Judgment of the Employment Appeal Tribunal IT IS DIRECTED that any application for leave to appeal should be made direct to the Court of Appeal within 14 days of the date the Judgment is sent to the parties."
So far as I know that decision has not been appealed. We have the transcript of the decision of that day and at the end of it I say:
"13 … I simply uphold the Registrar's striking out order of 2 August, and order that all allegations of bias or improper conduct contained in the Notice of Appeal be struck out and order that the appeal against that order is dismissed."
[8]So the Notice of Appeal that is now in front of us has to be considered in its form after the allegations of bias and improper conduct have been struck out. In that reduced form the Notice of Appeal raises, even so, a number of complaints. I apprehend that they can be divided into eight.[9]The first is that the applicant Mrs Wicks failed to turn up for duty and refused to telephone to say why she was not on duty, but that the Chairman of the Employment Tribunal did not ask her why that was so. But, in answer to that, the appellant before us was represented by Counsel below, who was free to raise such relevant enquiries as he chose. The Employment Tribunal examined the evidence given by the witnesses and gave reasons for preferring the evidence of Mrs Wicks.[10]The second ground is that the applicant Mrs Wicks put in a ten page witness statement which was seen by Mr Seeckun's counsel only at the last minute and which contained exaggerated evidence. But, in answer to that, if there was not time for a proper consideration of that witness statement it was for Mr Seeckun's counsel to apply either that it be not received at all or that the hearing should be briefly adjourned in order that it could be considered. There is no hint of either course having been adopted and the likelihood therefore is that, although it was a ten page statement, it was felt that it could be digested sufficiently without an adjournment. That was a tactical decision at the time and the consequences of it cannot now be complained about.[11]A third point is that the Chairman failed to press Mrs Wicks on mitigation of loss. If Mr Seeckun below had wished to say that Mrs Wicks had not duly sought employment elsewhere, well then, he had been free to do so as, of course, had been his counsel. But there is no hint that he was denied an opportunity of that character. He was free to question Mrs Wicks on the lines that she had not adequately sought to mitigate her loss. The Chairman was not obliged to intervene in that questioning or to add to it. It was entirely a matter for Mr Seeckun and his Counsel as to whether he felt he needed to or not. It is not an issue that generates a question of law.[12]Fourthly, it is said that Mrs Wicks had in fact been claiming unemployment benefit throughout the 14 weeks for which the Employment Tribunal compensated her for loss, that 14 weeks being, in effect, at Mr Seeckun's expense. But this, so far as one can tell, (if it is true at all, and we have no reason to suppose that Mr Seeckun is not telling the truth) is not a point that was put to the Employment Tribunal at the time. It was something which the appellant before us, Mr Seeckun, has learned since, and the tribunal cannot be criticised for failing to take account of a matter that was not put before them.[13]Fifthly, Mr Seeckun says that the Chairman should have spotted that Mrs Wicks was lying. But it is entirely a matter for the tribunal to decide who to believe and on two separate issues the tribunal expressly preferred the evidence of Mrs Wicks. That is a matter for them.[14]Sixthly, Mr Seeckun says that Mrs Wicks had been stealing stamps. Well, that is an issue that the tribunal does deal with. The evidence of Mrs Wicks was preferred and the tribunal, of course, was entitled to choose whose evidence to prefer.[15]Seventhly, the complaint is that Mrs Wicks had not been doing her job properly and was therefore capable of being dismissed and that the Chairman should have recognised that. But the Employment Tribunal held that Mr Seeckun had sought to impose unilaterally a change in her contract. It was the employer who was failing to perform his contract and not Mrs Wicks and, of course, there was an award under the contract in Mrs Wicks' favour.[16]Eighthly and last, Mr Seeckun says that the Chairman found every feature in Mrs Wicks' favour and did not question her. But Mr Seeckun was represented counsel. It was for that counsel to cross-examine Mrs Wicks. We have no reason to think that he did not do so and no reason to think that he did not do so adequately. It was for the tribunal in the circumstances to consider how, if at all, to question her further. A decision not to question her further was entirely a matter for the tribunal as a matter of fact and is not a point that generates any possible error of law.[17]We cannot leave the case without reminding the appellant of the very limited role of the EAT. Parliament has entrusted the finding of fact to the Employment Tribunal. We can only deal, and Mr Seeckun recognises that, with errors of law. Mr Seeckun feels strongly that he did not have a fair hearing on the day. He comes to close to trying to revive the issues of bias which were struck out of his Notice of appeal. If he had wanted to pursue such an argument he really should have lodged the affidavit that was required of him in a timely way and if he had some good case for not having done that he should have appealed the Registrar's order not only to me but beyond me to the Court of Appeal. We cannot entertain in the circumstances an argument that is based upon bias, be it of the Chairman or the tribunal as a whole. Leaving that aside, although we recognise that Mr Seeckun feels strongly, he should have raised his complaints as to bias in good time by supporting them with an affidavit. He not having done so, we can only deal with the allegations are not struck out of his Notice of Appeal. We have now done that. We have not been able to detect an error of law and, accordingly, we must dismiss the appeal even at this preliminary stage.