Bryn Howel Hotel Ltd v. Masin [2005] UKEAT 0831_04_0802

EAT
Bryn Howel Hotel Ltd v. Masin
[2005] UKEAT 0831_04_0802 · 2005-02-08
[1]This is an appeal by Bryn Howel Ltd, Mr Cohen not needing to be a part to the appeal as in fact all claims were dismissed against him at the Employment Tribunal, against the Order of the Registrar, dated 22 December 2004, that his appeal be struck out upon his failure to provide a sworn affidavit, in accordance with paragraph 5 of Judge Prophet's Order, sealed on 9 November 2004.[2]The Appellant's appeal, thus on the face of it struck out by the Registrar's Order, is against the Decision of the Employment Tribunal at Abergele, after a hearing on 18 and 19 August 2004, in Reasons sent to the parties on 7 September 2004. The conclusion of the Tribunal was that the Applicant's claim on the basis of sex discrimination was dismissed. However, her claim that the Respondent had constructively unfairly dismissed her was well founded, as was her case that the Respondent had breached the contract of employment by failing to pay contractual sick-pay in a small sum, and the Respondent was ordered to pay compensation and damages in the sum of £18,436.60.[3]There were, it is clear, six issues to be resolved by the Employment Tribunal, five of which are more or less set out in paragraph 2 of the Tribunal's Decision, and the sixth of which is addressed in paragraph 15. I shall seek to summarise those six issues in the following way, so far as I can by reference to the Employment Tribunal's Decision.[4]The first Issue (paragraph 2), was whether the Applicant's pay-rise in August 2003 was agreed between her and the Respondent, or whether she unilaterally gave herself a pay rise in a way which could only be fraudulent if it were so. The second Issue (paragraph 2), was whether a letter of resignation that she wrote ("the first letter of resignation") of 26 July 2003 was withdrawn, or whether it remained effective. The third Issue (also in paragraph 2), was whether, when the Applicant left her work for the last time on 12 September, her office was cleared and stripped of her belongings, her documents were shredded and her computer wiped, so as to indicate that in fact she was intending to leave for good. The fourth Issue (which, of course, was the subject-matter of the separate claim in respect of sex discrimination, also in paragraph 2 of the Tribunal Decision), was whether there were "harassing and derogatory comments made about and to the applicant by Mr Cohen". The fifth Issue (briefly referred to in paragraph 2, but seemingly central to the question as to whether there was a breach of contract and constructive dismissal by the Respondent, given the fact that the issue over the eventual termination of the contract related to whether the Applicant was or was not ill), was "whether there was a request by the respondent for the applicant to medically examined or whether there was not, and whether a letter to that effect on page 78 in our bundle was sent at the hands of Mr Maslin or whether it was not"; this letter is not before me. The sixth Issue is not set out in paragraph 2, but is plainly that which had to be addressed by the Tribunal (and is referred to in its conclusory paragraph 15): namely whether there was a breach by the Respondent of the implied term as to trust and confidence.[5]It is apparent that in relation to Issue four, the Tribunal resolved that issue in favour of the Respondent. It is equally apparent that the Tribunal resolved Issue six against the Respondent. Issues one, two and three are all, in varying degrees of detail, addressed by the Tribunal. Significantly, there is no resolution of Issue five, which the Tribunal specifically indicated was one of the important disputes to be resolved. Although mentioning the dispute in paragraph 2, it does not surface again throughout the rest of the Decision of the Tribunal. I shall return to that matter later.[6]A Notice of Appeal has been put in by the Respondent, which was in time. The Respondent, both at the Tribunal hearing and for the purposes of this appeal, has been unrepresented. The Applicant was represented by a solicitor at the Employment Tribunal, and, it seems, continues to be so represented. The Respondent has not been so represented, and at the Tribunal, and in subsequent correspondence, has been represented by Mr Cohen, its Director.[7]Mr Cohen's Notice of Appeal is lengthy, prolix, and unfocussed. In the introduction to the Notice of Appeal, he describes that Notice of Appeal as follows:
"1. Bias from the panel which continued from the start of this hearing and before. 2. Manipulation of evidence by the panel to achieve an award."
Notwithstanding that that is the way in which he headlines the Notice of Appeal, Mr Cohen continues, "Full details to follow…", and the document is accompanied by some six pages, to which I have referred in relation to its prolixity. In those pages, Mr Cohen, on behalf of the Respondent, refers to a number of apparently relevant matters.[8]First , the Tribunal did not, on his case, in its Decision, deal with allegations that were made by the Respondent against the Applicant of alleged misconduct by the Applicant, which were raised by him in the course of the hearing, and which were, on the face of it, of considerable significance:(a) an allegation that the Applicant was responsible for having unlawfully copied confidential documents;(b) that she was responsible for allegedly misappropriating property, including sums of money, which were said to be tips;(c) that she was, on his case, secretly setting up in a competitive, or at any rate unauthorised, business with a Mrs Chambers (it is unclear to me whether that Mrs Chambers is or is not a relation to Mr Chambers, who is the solicitor appearing for the Applicant) who was, or had been, a fellow employee of the Applicant, and who, it seems, again on the Respondent's case, left the employ of, or at any rate last worked for, the Respondent on 12 September, the same day when it is said that the Applicant last worked for the Respondent. This would have relevance, not only to the issue of whether there was misconduct by the Applicant, but would also have impact on the allegation of constructive dismissal; it would go to the issue (Issue three) as to the proper characterisation of what occurred on 12 September, and thus as to the effective date of termination of the contract; and further it may go to the issue of quantum of loss and remedy.(d) It is suggested, but not, so far as I can see, in any way clarified, that there may be some allegation against the Applicant in relation to what are loosely described as VAT mistakes. It is wholly unclear to me whether that aspect of this case was or was not brought forward at the Tribunal; and of course if it was not then it could only be relied upon by way of fresh evidence, which is a difficult matter to introduce.[9]The other matter that is addressed in detail, but wholly unclearly, in the Notice of Appeal, relates to what I referred to earlier, namely the failure by the Tribunal to deal with and resolve Issue five – the question of the alleged request by the employer to the Applicant to have a medical examination. It appears that there is, in the contract of employment, an entitlement for the Respondent - although I have not seen it - to require the Applicant to have a medical examination in the event of a dispute about the Applicant's health; and it is clear from the brief reference which there is in paragraph 2 of the Employment Tribunal's Decision that there was, allegedly, a letter sent in that regard. The apparent omission by the Tribunal to resolve Issue five must have, on any basis it would seem, at any rate an arguable impact on Issue six. Was the Applicant ill? Was she required to have an examination? Did she refuse to have an examination? Was she in breach of contract as a result of such refusal? Was the insistence on such examination, or the insistent position by the Respondent, in the absence of such medical examination, that the Respondent was not prepared to accept that the Applicant was in fact ill, a matter to be taken into account, possibly to be determinative, on the issue as to whether the Respondent was in breach of the implied term of trust and confidence?[10]The third matter which is touched upon in the Notice of Appeal relates to the fact that, as the Respondent points out, the Applicant was unsuccessful in her claim for sex discrimination, on the basis that the Tribunal did not accept that the Respondent, in particular Mr Cohen, had been guilty of any sexual harassment. In those circumstances, it would appear at least arguable that the making of unsubstantiated allegations of sexual harassment by the Applicant would have, or should have, had some impact on the issues that the Tribunal was deciding, so far as unfair dismissal was concerned; at least in relation to questions of the impact, if any, of Polkey . If indeed it was an unfair dismissal for the Respondent to have not accepted that there was ill health, if in fact the other matters, to which I have referred, were not relevant for consideration in relation to a finding of unfair constructive dismissal, would there have been a right for the Respondent, in any event, if not an inevitability, at least to consider what course to take in relation to the Applicant, who had made false statements, if she did, of sexual harassment? Would/could the Applicant have been fairly dismissed for that reason? Would that have an impact on the quantum of any compensation?[11]All those matters appear to me to be adumbrated in the Notice of Appeal. but Mr Cohen, on behalf of the Respondent, has unwisely, as yet, not sought legal advice so that those matters could be properly formulated. What he chose rather to do was to seek to rely, primarily, on his allegations of bias, which appear to me, on any reading, to be no more and no less than the embittered attitude of a litigant who believes that he should have won, for any number of reasons (some of them as articulated by me in the course of this judgment) when in fact he lost. It is in just this kind of situation that this Appeal Tribunal expects, insists upon, clear particularisation, on oath, of allegations of bias made against employment tribunals, who are so often the butt of such allegations; when the reality is either that they decided the case properly, but in such a way as to irritate one side or the other, or that they positively failed to decide it properly, because they erred in law in some respect, and so can be criticised on that basis, but the person who feels he or she should have won comes to feel that the Tribunal, which in their view ought to have found in their favour, was biased. But this of itself is not evidence of bias.[12]An Order was made by HH Judge Prophet, to which I have referred, dated 8 November 2004, which, in paragraph 5, reads as follows:
"Under paragraph 11 of the Employment Appeal Tribunal Practice Direction the Appellant must lodge with the Employment Appeal Tribunal and serve on the Respondent and affidavit giving details of the alleged bias or improper conduct within 14 days of the seal date of this Order and in default this appeal be dismissed."
In my judgment, that was an inappropriate Order to be made where the Notice of Appeal did not consist entirely of allegations of bias or misconduct. It consisted, albeit that the matters were prolix and unclear, as I have indicated, of other allegations as well, albeit overlaid by the primary case of bias. In my judgment, the Order should have provided that, in the absence of an affidavit giving details of the alleged bias or improper conduct, the allegations of alleged bias or improper conduct should be struck-out, and not be capable of being relied upon.[13]Pursuant to paragraph 9 of the same Order – which gives, expressly, the right to the Employment Appeal Tribunal to vary or discharge the Order on prior notice to the parties – I gave prior notice to the parties on Thursday 4 February 2005 that I proposed to vary Judge Prophet's Order to that effect; because otherwise injustice would have been done. It is not intended in any way that failure to comply with the affidavit is to be punished, to lead to some consequence which does not flow from the absence of the affidavit. It is plain that the absence of the affidavit is only intended to lead to the inability of the party failing to comply with the Order to rely on the bias and misconduct which is supposed to have been particularised in the affidavit.[14]The Appellant did not serve an affidavit within the time laid down in paragraph 5 of the Order, and it is for that reason that, by Order dated 21 December 2004, the Registrar struck-out the Notice of Appeal, as I have earlier described.[15]Out of time, Mr Cohen, on behalf of the Respondent, has put in no less than three lengthy, further explanations as to why he conceives that the Tribunal was biased against him. The first such document, faxed on 29 November 2004 to the Employment Appeal Tribunal, ends with the words "the above is true and accurate", and a signature of Mr Cohen as Director. That does not make it an affidavit, which is what was required by the Order, but it certainly makes it a witness statement, affirmed as being true. But it also does not rescue the fact that it was out of time. I have looked at that document, and the subsequent documents, and I am entirely satisfied that, even if I were prepared to look at a document which is not an affidavit, and which was not served in time, to see if the default of the Respondent can be rescued, there is nothing in the three documents, including the most recent Skeleton Argument, which begins to set out anything other than a firmly believed assertion that this Tribunal made a series of alleged errors, some of which, if not all of which, I have sought to summarise in the course of this judgment. I can see nowhere, in the documents served out of time, a particularised case of bias by this Tribunal. As I indicated, if something was sworn out of time, which particularised the bias, then I would have considered it.[16]I have however, as I have stated, varied the Order of Judge Prophet, so that it is only the allegations of bias and misconduct, generalised as they were, and not made good in any affidavit, which should fall to be struck-out as a result of the non-compliance by the Respondent with this Order; and I consequently, in any event, must allow the appeal of the Respondent against the Order of the Registrar, insofar as that Order strikes out the whole of the Notice of Appeal. However, I instead substitute an Order that all those allegations in the Notice of Appeal which allege bias or misconduct should be dismissed and struck-out.[17]That still leaves a substantial number of allegations, very poorly enunciated, in the balance of the Notice of Appeal which appear to me, if properly set out, to form an arguable basis for an appeal. It is quite clear to me that the Respondent is in vital need of legal advice to enable it to reconstitute and recast this Notice of Appeal in a way which would enable it to go forward by way of a proper Notice of Appeal, shorn of the wild allegations of bias and misconduct, but taking into account the contents of this judgment. It will take a little time for this judgment to be transcribed, and it is clear that the Respondent will need to have it delivered to him, neither he nor the Applicant having attended before me today, to consider. I will give the opportunity to the Respondent to take such legal advice, and to consider the judgment. It is quite plain that the Notice of Appeal, if it is to survive shorn of the bias allegations, must be reconstituted. Such amended Notice of Appeal, served, if the Respondent has any sense, after the taking of legal advice, can then be considered further at a preliminary hearing, at which the Applicant will have the opportunity of putting in submissions in the usual way.[18]I, accordingly, give to the Respondent a period of six weeks, from the date of the sealed Order, in which to file an amended Notice of Appeal, and there will then be a preliminary hearing of that amended Notice of Appeal fixed, 14 days prior to which, the Applicant has the opportunity of filing submissions in opposition, dedicated to showing that there is no reasonable prospect of success for such appeal; and the Appellant himself will be able to put in a skeleton argument in response to those submissions, to be served not less than seven days before the hearing.[19]If no amended Notice of Appeal is served within the six-week period, this appeal will stand dismissed. As I have indicated, if it is served within the six-week period, in an amended form (there is no need for that amended form to be approved by a judge), that Notice of Appeal will fall for consideration at the preliminary hearing, which I have ordered.[20]In those circumstances, and to that limited extent, this appeal is allowed, and a transcript will be ordered.