MR J V C BUTCHER v THE SALVAGE ASSOCIATION [2002] UKEAT 988_01_2101

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 988_01_2101Case No Appeal No. EAT/988/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J V C BUTCHERAPPELLANTTHE SALVAGE ASSOCIATIONRESPONDENT
Before
Mr Recorder LangstaffDate 21 January 2002
[1]APPEARANCES For the Appellant The Appellant in person MR RECORDER LANGSTAFF QC This is an appeal from a Decision of the Employment Tribunal sitting at London (Central). It gave its Extended Reasons on 4 July 2001. What is perhaps, at first sight surprising about the appeal is that the Appellant won - yet he seeks to appeal! The Employment Tribunal found that his complaint of unfair dismissal, which is how they characterised his complaint, should succeed.[2]They dismissed a complaint under sections 92 and 93 of the Employment Relations Act in respect of which there is no appeal. We propose to give permission for matters which arise to be argued fully before an Employment Appeal Tribunal at which the Respondent will be represented, but because we do not accept the wide bases upon which the Appellant seeks to argue that appeal, we shall give brief reasons for rejecting some of the bases on which he would seek to proceed.[3]The essential facts, and I shall put these very much in summary form, were that Mr Butcher was the Chief Accountant and Financial Director of the Respondent. He felt professionally compromised by the way in which a new Chief Executive of the Respondent wished the accounts to be completed. He maintained that the way in which monthly accounts, for the perusal of the Board, were to be completed, was misleading to them.[4]The Applicant fell sick in May 2001. On 19 May he was called into the Chief Executive's office and handed a letter which indicated that he was being dismissed with immediate effect by reason of his said continued under performance and inability to fulfil the requirements of his position. He subsequently requested an appeal hearing. That was denied. He then sought particulars of reasons for his dismissal.[5]The Employment Tribunal found that there was no force in the capability reason which was the purported reason for dismissal. They concluded that the reason for dismissal was, and we put this in our own words, a clash of personality and approach. They described the dismissal which occurred in these terms at the foot of paragraph 18:
"On 19 May 2000 Mr Padgett called the Applicant to a meeting and dismissed him. Although the Respondent had a disciplinary procedure, it made no pretence of following it. He was given no prior warning of the nature of the meeting nor of the charge there was to be made. The dismissal letter was already prepared and ready to be handed over. He was not given the opportunity to be accompanied nor the opportunity to offer an explanation let alone prepare one. We consider that the dismissal was both substantively and procedurally unfair."
[6]The one respect in which the Decision of the Employment Tribunal was not in favour of the Applicant in the result, as opposed to the reasoning, was in the finding by the Employment Tribunal that compensation should be reduced by fifty per cent, pursuant to sections 122(2) and 123(6) of the Employment Rights Act 1996 by reason of his conduct. The findings are set out at paragraph 21. They find that the dismissal, which they have described at the foot of paragraph 18, was contributed to:
"by his general demeanour and approach, which was interpreted by the Respondent in terms that he was not making an effort to make things work. We assess the contribution in percentage terms as 50 per cent."
We consider that this gives rise to the following arguable points: first whether or not the Employment Tribunal has indicated sufficiently fully what factors it took into account and which it did not, as amounting to contributory conduct.[7]Secondly, whether "demeanour and approach", of itself, is capable in the context of this case of amounting to "conduct" within the meaning of sections 122 and 123 of the Employment Rights Act 1996. In particular, given that that was linked by the Tribunal to an interpretation by the Respondent, with the possible implication that there was no proper basis in fact for that interpretation, it gives rise to the question whether a Tribunal may properly reduce compensation by reason of a mistaken view of the conduct or approach, or personality, of an employee.[8]Thirdly, the Decision is, it may be said, insufficient to show what factors were taken into account in assessing the contribution as fifty per cent. One of the submissions Mr Butcher makes to us is that he sought to persuade the Chairman of the Tribunal that it should be no more than ten to fifteen per cent, if one focused upon events prior to the decision made to dismiss him. He maintains that, on the findings of the Employment Tribunal, the decision to dismiss him was reached at a stage well prior to the actual date of termination of his employment. He maintains, and we think it is arguable, that there could be no focus, properly, by the Tribunal upon conduct after the date of the decision to dismiss, if the decision once reached was truly irrevocable.[9]Fourthly, it appears to be common ground from the contents of the affidavit of the Appellant and the answer in writing by the Chairman, that the Tribunal expressed a view as to the likely percentage of contributory fault before inviting submissions thereon. We think it is arguable in the context of this case, that that may have been too strong an indication of the Tribunal's thinking. Since that is raised by Mr Butcher, we think that should be canvassed as part and parcel of the arguments in respect of contributory fault.[10]However, we do not think there is any arguable ground of appeal in respect of two matters. The first is that Mr Butcher complains that the Tribunal should have reached a Decision favourable to him in respect of his complaint that he had been dismissed for whistle-blowing. His dismissal would then be, as he sees it, contrary to those provisions of the Public Interest Disclosure Act now reflected at sections 43A to 43L of the Employment Rights Act 1996 . He submits that it was incumbent upon the Tribunal to reach a separate conclusion in respect of this, which gives him a separate and distinct right of appeal. We do not accept that submission.[11]There is no separate right, as we see it, given by Sections 43A, 43L to complain of a dismissal for that reason. The right to complain of unfair dismissal is given by section 94(1). It simply says:
"(1) An employee has the right not to be unfairly dismissed by his employer."
Whereas the sections that follow deal with the way in which a Tribunal must approach the termination of the issues caused by that right, it does not give a separate and free standing right in respect of the Public Interest Disclosure Act . In other words, a finding in favour of the Appellant on a complaint of unfair dismissal, if reached on one basis, gives him no right to complain that it should have been reached on a different basis.[12]He would link this, however, in with the question of compensation for contributory conduct and points out that the assessment of the contribution might have been different had the Tribunal accepted that, indeed, the reason for his dismissal was that he had made a qualifying disclosure under the terms of section 43 A - L. We think that that is addressed in the Decision of the Tribunal at paragraph 19 under the heading "Protected Disclosure". Although Mr Butcher now seeks to argue that the Tribunal misappreciated the evidence, we do not think there is any sufficient case here to justify a further ground under this head. It is a finding by the Tribunal, which we see that the Tribunal was entitled to make, and in respect of which, subject only to the issue of bias, there could be no appeal as being a matter of fact which they were entitled to draw conclusions upon, albeit not conclusions that Mr Butcher would have wished.[13]So far as bias is concerned, there are two strands. The first is a sustained complaint by Mr Butcher that the Employment Tribunal Service miscategorised his complaint. His Originating Application describes itself, in typewritten form, in Box number 1 as being essentially one in respect of unfair dismissal, plus a complaint that he was not given the reasons for that dismissal. He maintains that the Tribunal Service should have appreciated from the grounds set out later in the application, that his claim was in respect of the Public Interest Disclosure Act, that this fact should have been recognised in the register at a stage which would permit members of the public, and others who were interested, to come to the Tribunal to listen to the matters there canvassed. He has, in effect alleged a conspiracy between the Chairman and others in the Employment Tribunal Service to disadvantage him by failing to categorise his application in those terms.[14]We think that there is no evidence, on affidavit or otherwise, which entitles us to conclude that the Tribunal which determined his claim was in any way affected by anything that might have happened beforehand, however justified or not Mr Butcher's complaints might be. If he has any remedy or complaint in respect of the matters relating to the categorisation of his complaint on the register, those are not matters which arise from the Decision of the Employment Tribunal which we are invited to consider. We have no power to deal with them, and if any complaint is to be pursued, that must be elsewhere.[15]So far as bias is concerned, I hope that we shall be forgiven for dealing with the matter shortly in these terms: that we have to remember that this was a case in which the Appellant, Mr Butcher, actually won his case. That sets the context for the allegations of bias; those, it seems to us, may reflect not so much a bias in the Tribunal, but in the feelings of insecurity and uncertainty which litigants in person must inevitably have when fighting their own case in front of well resourced opponents, in unfamiliar surroundings. We do not see that any of the matters which he has raised, given the answers by the Chairman, would be such as to make any right thinking member of the public conclude either that there had been, or that there was serious risk of, the Tribunal doing injustice to the Appellant, and we do not, therefore, think there is any force in the grounds which he seeks to advance in that respect, well supported though they are by three other affidavits which we permitted to be taken into consideration.[16]Finally, we should mention one matter. Before he began to address us, Mr Butcher asked if the proceedings today could be recorded by a stenographer. He indicated that this was because being here alone, there was no one who could make a detailed note upon which he could rely as being accurate as to the proceedings before us. We emphasised to him that if there were to be any further appeal, it would be to the Court of Appeal, who would consider not so much the correctness of the procedure and reasoning at this level, but whether or not the Employment Tribunal was in error. Accordingly, what is said in the course of argument in this Tribunal is of little relevance and almost certainly no help to the Court of Appeal.[17]The contrast is with the reasons for our decision which are, of course, recorded and sent to all litigants. However, he has arranged for the attendance of a court stenographer at his own expense. We see no distinction between her attendance and that of a friend or for that matter, a professional representative, who would take notes as the hearing progressed. We think that anyone who comes to this Tribunal is fully entitled to take notes as matters proceed, and so we were happy on that basis to give permission to Mr Butcher to have a stenographer. We hope, despite its expense, that the exercise may at least be satisfactory to him. We should emphasise, however, that that is a decision which we make in respect of this preliminary hearing and if Mr Butcher thinks it appropriate, no matter what we have said about the powers of the Court of Appeal, to renew his application before the full Employment Appeal Tribunal, he should do so and should not consider simply that they would be bound by our Decision here. That would be a matter for them to decide afresh.[18]That said, let us give directions for the hearing. We think that the hearing should, on the basis that we have outlined, take some half a day. It should be listed in Category B. Skeleton Arguments restricted, please, to the issues we have identified in this judgment, should be provided no less than seven days prior to the hearing, together with photocopies of any authorities which upon which it is proposed to rely at the hearing.