COLOUR HOUSE LABORATORIES v MR D J KING [2002] UKEAT 1391_01_1907

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1391_01_1907Case No Appeal No. EAT/1391/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
COLOUR HOUSE LABORATORIESAPPELLANTMR D J KINGRESPONDENT
Before
Mr Recorder LangstaffDate 19 July 2002
[1]APPEARANCES For the Appellant MR FODDER Appearing under the Employment Law Appeal Advice Scheme MR RECORDER LANGSTAFF QC We propose to adjourn the Preliminary Hearing of this appeal from an Employment Tribunal at London South. We shall explain, briefly, the reasons for doing so and the basis upon which we adjourn it for the benefit of the Tribunal before whom it may ultimately be restored.[2]The Employment Tribunal held that Mr King was entitled to a redundancy payment and had been wrongfully dismissed. In paragraph ii on the first page of the Tribunal's decision the redundancy payment is calculated as £4,800. On page 2 at paragraph 4 it is recited as being £480. That is plainly an error of calculation on which nothing turns. It should be £4,800.[3]There was no appearance by the Respondent in each of two senses. First, the Respondent never submitted a Notice of Appearance. Secondly, no one on behalf of the Respondent appeared in person at the hearing on 29 August 2001. The claim was one for redundancy payment and for pay in lieu of notice, or alternatively, for a breach of contract in dismissing the employee without proper notice. The decision records that evidence was heard. It does not record whether the Chairman asked (and if he did, what answer he received) whether the employee had received any sums towards his redundancy payment.[4]Following an earlier appearance before this Tribunal on 25 January 2002 affidavits were sworn by Mr Harries on behalf of the Appellant to explain why no Notice of Appearance was entered and why no application for an extension of time was received. Those inspired a response from Mr King in which he deposed to the fact that he actually received £500 towards his redundancy payment.[5]The attack before us is an attack upon the reasoning in the Employment Tribunal decision itself. Because it has been presented before us by Mr Fodder, on behalf of the ELAAS Scheme for the Appellant, it has perhaps focused on matters other than those which entertained before this Tribunal in January. He says, in essence, that the Tribunal Chairman was obliged as a matter of law to ask the Respondent what, if any, sums he actually received by way of redundancy.[6]Although there is copious law to the effect that a Tribunal may, and it is often desirable that it should, ask questions of, and explore issues with, the witnesses appearing before it, or raise matters with representatives of its own motion, there is almost unanimous acceptance that a Tribunal is not bound to do so – see, for instance, the decision of Lindsay J (otherwise unreported) Humphreys v The Environment Agency 19 November 1999 at paragraph 28, cited to the same effect in the judgment of this Tribunal in the case of EKPE v The Commissioner of Police of the Metropolis [2001] IRLR 605, and indeed, the case of Goodwin v The Patent Office [1999] ICR 302 in which the then President, Morison J, expressed the same sentiment. However, in one of the recitations of principle Commissioner Howell QC expressed the principle in these terms:
"… that a Tribunal is obliged, as indeed is expressly recorded in rule 9 of the tribunal Procedure Rules, to conduct the hearing in a fair and balanced manner, intervening and making its own enquires in the course of the hearing of such persons appearing before it and such witnesses as are called before it as it considers appropriate, so as to ensure [and we emphasise these next few words] due consideration of the issues raised by, or necessarily implicit in, the complaint being made."
Mr Fodder's point is, quite simply, that it is implicit in the calculation of what is due by way of redundancy payment that one should ask whether anything has been received.[7]We think it difficult to express such a principle in such terms but we do see it as arguable that where a litigant in person appears before a Chairman on his own and gives evidence, as this litigant did, the Chairman will, almost inevitably, be in the position of taking him through his evidence. It may be that in the course of that, having established employment, age and the weekly wage, the question is - 'Did you receive any redundancy payment?' It is difficult, perhaps, to see easily what might otherwise have resulted in a conclusion that none was received, which was an essential plank of the evidence before the Tribunal. It may be that that question was asked. We simply cannot tell.[8]For that purpose, we wish the Chairman to provide his notes of the evidence before him of Mr King. It will then be for a further Tribunal here to review the submissions, focussing upon the point we have identified in the light of anything revealed by that evidence. However, we should say this, the real issue which inspires the appeal is, it may be, whether the Respondent is prepared to credit, as against the sums due to him, the sum which he at least admits having received in the affidavit of 18 February 2002. We would ask the liquidator to invite the Respondent to identify whether he has any, and if so, what, proposal for crediting against the sum ordered to be paid by the Employment Tribunal, that sum which he admits having received by way of redundancy. We direct that if there is such correspondence (we have no right to direct the correspondence itself) that it is placed before this Tribunal so that if the matter should proceed to a final hearing it may be taken into account in determining whether or not there should be an order in respect of costs. The liquidator of the Appellant should know that the fact that this Tribunal might, on this narrow, and we think possibly thin ground, grant permission to proceed to a final appeal, will not insulate the liquidator from an order for costs if this Tribunal should be of the view that the costs incurred by the Respondent were unnecessarily incurred.[9]That brings us to the next matter which requires to be dealt with before this case is ever restored as a Preliminary Hearing. The Appellant is in liquidation. We are told that though there is nothing formal to record it, that the liquidator has given approval to Mr Harries, who is here in person today, to present this stage of the appeal. We are surprised by this since we are told it is a creditor's liquidation. We have been prepared to hear the appeal thus far, the parties being present and Mr Fodder being here to assist, but future hearings will be declined unless the Appellant demonstrates that it is properly in a position to pursue this litigation. We have in mind that the liquidator will wish to consider, mindful of his duty to the creditors, the costs of pursuing it.[10]On that basis we therefore adjourn this Preliminary Hearing yet again.