MR LISINGE v ATTLAW SECURITY LTD & OTHERS [2002] UKEAT 0633_01_1904

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0633_01_1904Case No Appeal No. EAT/0633/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR LISINGEAPPELLANTATTLAW SECURITY LTD & OTHERSRESPONDENT
Before
His Honour Judge Peter Clark Mr W Morris Mrs D M PalmerDate 19 April 2002
[1]APPEARANCES For the Appellant MR S LEVINSON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE PETER CLARK: On 27 July 1999 the Appellant, Mr Lisinge, presented an Originating Application to the London (South) Employment Tribunal. He named as his employer Attlaw Security Ltd (ASL), by whom he had been employed as a security officer from February 1997 until 4 May 1999. He there raised the following complaints; unfair dismissal, health and safety activities, outstanding wages, loss of earnings and racial discrimination. He is of black African racial origin.[2]On 6 March 2000 a chairman, Mr John Warren, gave certain directions including the adding of six individuals as Respondents. By then ASL was in voluntary liquidation. The claims were resisted. The matter finally came on for substantive hearing on 19 – 20 June 2000 before a Tribunal on the face of its decision chaired by Ms Christiana Hyde. There were further hearings on 14 – 15 August 2000 and on 16 August the three members of the Tribunal met in chambers to consider the case. Unhappily one of the members, Mr McGuiness, died in early December 2000 before the Tribunal's decision and reasons were finalised. There was then a delay until 8 March 2001 when the Regional Chairman directed that a decision be made by the two remaining members, who it appears met again on that day and a decision with very full extended reasons was promulgated on 13 March 2001.[3]Those reasons chronicle the procedural history, to which we shall return, set out the Tribunals detailed findings of fact and the law and finally expressed their conclusions which may be summarised as follows:(1) the Appellant was constructively dismissed by ASL, which the Tribunal found went into creditors voluntary resignation in mid-July 1999. The reason for dismissal was not a health and safety reason as the Appellant has alleged, but was nevertheless unfair. He had not contributed to his dismissal. The question of remedy under this head of claim was adjourned.(2) The Appellant was entitled to unpaid holiday pay amounting to £1,087 gross(3) He was entitled to damages for breach of contract totalling £245(4) His claims of both direct discrimination and victimisation contrary to the Race Relations Act 1976 were dismissed.[4]Against that decision, Mr Lisinge appealed by a Notice dated 9 April 2001. He names as Respondent's to the appeal ASL and Harrison Card Ltd and Others. Pausing there, the Appellant suggests that there was a relevant transfer of the business of ASL to Harrison Card Ltd, a company of which the second Respondent below, Mr Crump was Managing Director. However, it appears that Harrison Card was never joined as a party to the proceedings below. We can see no basis for joining that company now as a party to this appeal. His written grounds of appeal, later repeated in the form of an affidavit, sworn on 27 June 2001, raised questions of natural justice rather than points of law directed to the Tribunal's substantive findings. The Chairman, Ms Hyde has commented on those complaints by a letter dated 10 September 2001.[5]Today the Appellant is represented by Mr Stephen Levinson under the ELAAS pro bono scheme. Mr Levinson applied for an adjournment of this preliminary hearing on a ground which had not been raised in the Appellant's Notice of Appeal and first affidavit of 27 June nor indeed a further affidavit sworn on 20 July 2001 in these proceedings. Mr Levinson tells us, on instructions from the Appellant, that Ms Hyde did not chair the first two days of this substantive hearing on 19 and 20 June 2000. This he submits is a procedural irregularity. It would be a procedural irregularity, had it happened. However, we have looked at the Tribunal's reasons and in particular at paragraph 6, where Ms Hyde says this:
"During the hearings in June and August 2000, Mr Lisinge questioned the allocation of a different Chairman. He also wrote to the Tribunal just before the resumed hearing in August 2000 raising concerns about whether the Chairman, Ms C Hyde, was biased. These matters were discussed with the parties on each occasion that they were raised. At the outset of the hearing on 14 August 2000, the Chairman advised Mr Lisinge that he could raise bias in the course of an appeal, if he so wished, once the outcome of the hearing was known. The Chairman went through each of the points raised in his letter and further clarified Mr Lisinge's concerns and provided explanations. Mr Lisinge's further comments were obtained. The Chairman explained that when answering Mr Elliot's question at the outset of the hearing in June 2000 about the process by which the individual Respondents came to be joined, she had not given and had not intended to give an indication of her view of the strength of Mr Lisinge's case. Mr Elliot indicated that he had not understood the explanation in that way."
[6]From that paragraph of the Tribunal's reasons it is pellucidly clear to us that Ms Hyde chaired the Tribunal, both in June and August 2000, when the four days of substantive hearing took place. It is equally clear from the Tribunal's reasons that on an earlier occasion a chairman, Mr Warren had given directions in the case. In these circumstances we can see no basis for adjourning this preliminary hearing to make inquiries as to whether or not Ms Hyde was present at a hearing in June to which she specifically refers in the first person in the Tribunal's reasons. Furthermore, it is inconceivable to us that if a hearing began and was then aborted for whatever reason, that if a new chairman were to take over the case, even sitting with the same members that the case would not begin again.[7]In these circumstances we rejected that application for an adjournment. Mr Levinson makes no additional oral submissions in support of the appeal, but indicates that Mr Lisinge does not abandon any of the grounds which are set out in his Notice of Appeal and affidavit. We have considered those matters in conjunction with the comments made by the chairman, Ms Hyde. We say at once that we see absolutely nothing in them. In these circumstances we can find no arguable grounds on which this appeal should proceed to a full hearing and consequently it will be dismissed.