MR H PATEL v SYD BROWN & SONS LTD [2001] UKEAT 584_01_2711

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 584_01_2711Case No Appeal No. EAT/584/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR H PATELAPPELLANTSYD BROWN & SONS LTDRESPONDENT
Before
His Honour Judge D Pugsley Mr D J JenkinsDate 27 November 2001
[1]APPEARANCES For the Appellant MR SHEIKH (of Counsel) Instructed by Messrs Mohammed & Co Solicitors St John's House Stoneygate Preston Lancashire PR1 2XX JUDGE D PUGSLEY We have been helped by a Skeleton Argument which concisely and succinctly sets out the issues in this case. The Appellant appeals against a decision of the Manchester Employment Tribunal:
" to strike out the appellant's complaint of unfair dismissal under Rule 13(2)Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 on the ground that the appellant has conducted himself scandalously during the course of the proceedings."
[2]The factual background is that the Appellant commenced his employment in the business in the sales and after servicing of new and new used motor vehicles on 25 January 1988. After a previous change in ownership, the business was transferred to the Respondent in or around July 1998, the Appellant being employed by the Respondent as a Senior Administrator. Initially the workload of that department was shared between the Appellant and the Respondent's employee, Katharine Gill. She left on 24 December 1998.[3]The Appellant was given a verbal warning in August 1999. The Appellant disputed the justification and wrote to the Respondents' General Manager about that matter. Following the departure of Katherine Gill the workload in Administration, according to the Appellant, increased and the question of the increased responsibility was not properly considered by his employer. The Appellant was unfit for work from 8 September and in following correspondence he tendered his resignation and made an application to an industrial tribunal that he was constructively and unfairly dismissed.[4]Following the issue of proceedings, the Appellant's solicitors wrote to Katherine Gill hoping, no doubt, that she would be prepared to give evidence and sent her a questionnaire, and on 21 September they sent her a letter stating the firm had requested a witness order, and setting out the consequence of failing to comply. On 21 September, according to the attendance record, Ms Gill telephoned and said that she did not want to get involved. Subsequently a witness statement was received from the Respondent's representative with the name of Katherine Gill, undated and unsigned.[5]There were then phone calls made to Ms Gill's home telephone and the Tribunal concluded in its Extended Reasons that four calls had been made by the Appellant and on only one occasion did the Appellant speak directly to Ms Gill.[6]There were not any further communications between the Appellant and Ms Gill, but on 30 October solicitors wrote to Katharine Gill who did not respond and there was no further communication. The Tribunal came to the view that the Appellant's solicitors' letter dated 21 September 2001 was extremely aggressive and the letter dated 30 October was intended to seek to persuade Ms Gill to either withdraw or change her evidence.[7]The nub of this appeal is that the Tribunal was wrong to conclude that the Appellant had so conducted himself in the manner that was scandalous and they erred in failing to consider whether a fair trial of the issues was still possible.[8]Mr Sheikh has directed our attention to the case of De Keyser Ltd -v- Wilson [2000] IRLR 324 a decision of the President of this Tribunal, in which extensive guidance is given dealing with the matters and pointing out that in cases not involving deliberate disobedience of an Order the possibility of a fair trial is a crucial factor in relation to the discretion to strike out the case and one has to consider whether or not striking out is disproportionate.[9]In the light of that case, we are of the view that there is in this case an arguable matter in the grounds of appeal which have now been amended and are appended to this Decision, this matter should proceed on those matters as there is an arguable case, Category C and half a day time estimate.