MR S CLAPSON v BRITISH AIRWAYS PLC [2001] UKEAT 1266_00_1201

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1266_00_1201Case No Appeal No. EAT/1266/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S CLAPSONAPPELLANTBRITISH AIRWAYS PLCRESPONDENT
Before
His Honour Judge CollinsDate 12 January 2001
[1]APPEARANCES For the Appellant MS SUZANNE McKIE (of Counsel) A J Hows & Associates 81 New Road Harlington Hayes Middlesex UB3 5BG For the Respondents MR MARK SUTTON (of Counsel) Messrs Osbourne Clark Solicitors 26 Old Bailey London EC4M 7HW JUDGE COLLINS CBE : This interlocutory appeal raises a question of construction of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 which does not appear to be the subject of any reported authority. It concerns, firstly, the question of whether or not an Employment Tribunal has power to call a witness of its own motion; and, secondly, whether, in this particular case, assuming there was such a power, the tribunal was correct to exercise it. The circumstances in which the question arises are that the appellant, Mr Clapson, was a senior captain with British Airways. He was dismissed after a complicated three-stage disciplinary procedure on the ground of impropriety in his behaviour in relation to a passenger and applied to the Employment Tribunal on the ground that he was unfairly dismissed.[2]The case began in the tribunal, siting at London (South), on 19th September 2000 and continued until the following day. At the outset the fact of dismissal had been conceded and in accordance with the normal practice, the respondents had presented their evidence. Apparently it had been announced by counsel who conducted the case for the appellant, who is not counsel who has appeared before us today, that she intended to call the appellant. Cross-examination of the respondent's witnesses was conducted, apparently, by her on the basis that Mr Clapson would be called and gave rise to an expectation in the minds of Mr Sutton, who appeared before the tribunal then, as he does before us today, and in the mind of the tribunal that the appellant would be called to give evidence.[3]On the second day of the hearing, counsel announced that in fact it was not her intention to call Mr Clapson and it is apparent from the reasons of the tribunal that that caused a certain amount of surprise both to Mr Sutton and to the tribunal.[4]There were a number of areas of fact on which it was plain that Mr Clapson had something relevant to say and those areas are listed in the tribunal's reasons. The tribunal heard an application by Mr Sutton that they should call Mr Clapson to give evidence themselves. The reasons why Mr Sutton urged that course are obvious. While it was open to Mr Sutton and will still be open to him if we allow this appeal, to call Mr Clapson himself, he will not under the ordinary rules of procedure be permitted to cross-examine. Whether the tribunals have power under Regulation 9 of Schedule 1 to adapt the procedure so as to permit Mr Sutton to cross-examine a witness called by him, in these circumstances, is not something on which we have heard any argument. It might or might not be that the tribunal has adequate power to allow a person to cross-examine his own witness under that Regulation, whether or not that witness proves hostile under the ordinary rules or whatever.[5]The tribunal, having heard that application, granted it. They issued a witness summons directed at Mr Clapson, who, it must be said, was physically present at the hearing on 20th September, and ordered him to attend to give evidence on 22nd January 2001 and adjourned the hearing for that purpose.[6]Paragraph 4 of Schedule 1 of the 1993 Regulations reads as follows, so far as is material:
"4 Power to require further particulars and attendance of witnesses and to grant discovery … (2) A tribunal may, on the application of a party made either by notice to the Secretary or at the hearing of the originating application, or of its own motion- (a) require the attendance of any person, including a party, as a witness, wherever such person may be within Great Britain, and (b) if it does so require the attendance of a person require him to produce any document relating to the matter to be determined, and may appoint the time and place at which the person is to attend …"
For the sake of completeness I ought to read paragraph 9 of the Schedule, because I have referred to it. It reads as follows, so far as is material:
"(1) The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it consider appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings."
I ought to say that it does not seem to us to be particularly helpful to attempt to analyse proceedings before an Employment Tribunal in broad terms as to whether they are inquisitorial or adversarial in nature. We have been invited to look at some observations by Morison J in Goodwin v Patent Office [1999] IRLR 4 and Buxton v Equinox [1999] IRLR 158 , where an inquisitorial element in the procedure is referred to.[7]It seems to us that the helpful approach is simply to look at the particular power which is in issue and to see in the context of the law and practice relating to the procedure before Employment Tribunals what the extent of that power is and how it should be exercised. Some powers will partake more of an inquisitorial nature, some more of an adversarial nature. But that general proposition does not help when one is considering the power which is in issue in the instant case.[8]We have been invited to consider the parallel provisions relating to the power of a court of law to call a witness of its own motion. The position at common law is plain enough. In ordinary circumstances, a judge in a civil case has no power to call a witness of his own motion. In criminal proceedings of course the judge does have such a power, but the existence of that power has not led to its being widely used. Experience suggests that only on extremely rare occasions does the judge in a criminal case exercise the power to call a witness of his own motion. There is no reason to suppose that if that power existed in civil cases or in Employment Tribunal cases the power would be exercised other than sparingly.[9]A question arises as to whether the basic common law position has been varied by the combined effect of Schedule 1, paragraph 4 of the Civil Procedure Act 1997 and Part 32 of the Civil Procedure Rules . On one view it is arguable that the judge has power to order of his own motion in civil proceedings that a witness be called. We do not find it necessary for the purposes of this case to decide what the position is under the Civil Procedure Rules. There is a specific statutory provision in the 1993 Regulations, which is not mirrored in the Civil Procedure Rules.[10]In our judgment, the words of paragraph 4(2) of the 1993 Regulations are plain and unequivocal. The power of tribunal to require the attendance of any person, including a party, as a witness of its motion is not expressed to be subject to any limitation or restriction. Ms McKie has urged upon us that there ought to be some restriction imposed, inferentially, of the kind that might be found in the case of Enoch v Zfretski (1910) 1 KB 327 , where the Court of Appeal took the view, in very unusual circumstances, that it might be possible for a court to call a witness itself with the agreement of both sides so that both parties would have the opportunity to cross-examine. That case cannot sensibly be held in our judgment to have created any kind of general rule which assists in the construction of the 1993 Regulations. They are on their face, quite unequivocal and quite unrestricted. In our judgment the Employment Tribunal does have power, of its own motion, to call a witness and require that witness to give evidence to the tribunal, with the ordinary consequence subject to the provisions of paragraph 9 the Schedule 1, that each party would have the right to cross examine that witness.[11]Now the question arises in the light of that decision whether the tribunal was right to exercise the power in this particular case. The existence of this power, as I have indicated, does not mean that it should be widely used. Tribunal should, in our judgment, be very cautious indeed before deciding to call a witness whom neither of the parties wishes to call. That word of caution should be applied even more carefully in a case where the witness is one of the parties to the case. The circumstances when it would be right to compel a party to give evidence against that party's volition must be very rare indeed. In ordinary circumstances, one would have thought that where there was a disputed area of fact or where allegations had been made to witnesses for one party which had not been supported by evidence from the other party, that the tribunal would deal with the situation by simply drawing the inevitable adverse inference against the party who had not given evidence.[12]But the question for us to decide is not whether we would have exercised the discretion in the same way as the tribunal, but whether the tribunal's exercise of the discretion was one which no reasonable tribunal could have exercised. This tribunal had heard the case for a day and a half before making its decision and it had a feeling or sense of the case, which we cannot possibly have. Although we have certain reservations about the tribunal's decision to exercise the power, we cannot say on this material that the tribunal was so obviously wrong to exercise it in the way that it did that we ought to overturn its decision.[13]Therefore, for those reasons, we shall dismiss this appeal.