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||BAILII case number:  UKEAT 1185_00_0612
||Appeal No. EAT/1185/00
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
||At the Tribunal
||On 9 November 2001
||Judgment delivered on 6 December 2001
HIS HONOUR JUDGE PETER CLARK
MS J DRAKE
MR A E R MANNERS
|MR K M SHWKY
Transcript of Proceedings
© Copyright 2001
|For the Appellant
||The Appellant in person
|For the Respondent
||Mr S H Moon
83 High Street
JUDGE PETER CLARK
- This is an appeal by Mr Shwky, the Applicant before an Employment Tribunal sitting at Stratford comprising the Chairman, Mr S M Duncan, and lay members, Mrs McPake and Mr Ramsay, over four days between 11 - 14 July 2000, against that Tribunal's unanimous Reserved Decision, promulgated with Extended Reasons on 9 August 2000, dismissing his complaints of unfair dismissal and unlawful racial discrimination brought against his former employers, the Respondent Heritage Care. Before the Tribunal the Appellant appeared in person and the Respondent was represented by an Employment Consultant, Mr Moon.
- The Appellant, who is of Egyptian national origin, was employed by the Respondent as a support worker at various locations from 18 March 1996 until his dismissal on 17 September 1999.
- During his employment the Appellant had a high sickness record. In 1996 he was absent for sixteen days, in 1997 for over a hundred days. On 15 November 1997 he began a period of absence which, save for a period of just over one week in April 1998, lasted until he went back on the payroll on 12 April 1999. He resumed work on 4 May 1999; in June 1999 he was off sick for "about 10 days", so the Tribunal found, and on 11 July 1999 he took a week's leave because he felt unwell. Thereafter he never returned to work prior to his dismissal by letter which he received on 17 September 1999.
- That dismissal followed a disciplinary hearing held on 16 September before Mr Sherman, Care Services Manager and Mr Chopra, the Senior Personnel Officer. The reason for dismissal given by the Respondent was gross misconduct in that he had failed to maintain regular contact with his line manager when absent, failed to attend an appointment with the Occupational Health Department and failed to provide any evidence confirming that his absence was due to sickness.
- Against that decision the Appellant appealed internally to Mr Foo, Director of Care and Development, together with Mr Lenton, the Personnel Director. On 15 November 1999 an appeal hearing, in the form of a re-hearing of the disciplinary, so the Tribunal found, took place. Mr Foo decided to dismiss the appeal.
- It is further apparent from the Tribunal's findings that during the employment the Appellant raised a number of grievances, including complaints of racial discrimination and victimisation, relating to matters going back to 16 May 1997.
The Tribunal Decision
- Based on their findings of fact the Tribunal reached the following conclusions:
(1) As to unfair dismissal, they accepted the Respondent's evidence as to the reason for dismissal which related to the Appellant's conduct, a potentially fair reason for dismissal. As to fairness, they found that the Respondent was entitled to conclude that the Appellant was deliberately refusing to comply with his contractual duty to report in and keep in contact with his line manager when absent and had failed, by the time of the disciplinary hearing before Messrs Sherman and Chopra held on 16 September 1999, to provide medical evidence to explain his absence. In these circumstances, held the Tribunal, dismissal fell within the range of reasonable responses open to the Respondent.
They were, however, troubled by a procedural point going to fairness taken by the Appellant. He contended that, having previously complained about Mr Sherman, he ought not to have been the disciplining manager. Whilst seeing the force of that argument the Tribunal concluded:
(a) that since the Appellant had complained about many of his managers and indeed had advanced the case that the entire management team had conspired against him it would have been difficult to find a manager acceptable to the Appellant, and that Mr Sherman had had no recent dealings with the Appellant giving rise to any grievance, and
(b) that any defect was cured on appeal before Mr Foo, who was not regarded by the Appellant as unacceptable,
that aspect of the case did not render the dismissal unfair.
(2) As to the complaint of racial discrimination, the Tribunal held first that since the last day of work was 9 July 1999 and the Originating Application was not presented until 14 December 1999, complaints of discrimination prior to that date were out of time and it was not just and equitable to extend time; secondly, that even had they been in time, having heard the witnesses there was no evidence which they could accept supporting a finding of unlawful discrimination prior to 9 July 1999 and thirdly that his dismissal, an event within time, was not itself discriminatory. Any employee of whatever race or national origin would have been dismissed in the circumstances of Mr Shwky's misconduct.
Consequently the complaint was dismissed.
- Finally, at paragraphs 31-33 of their Reasons, the Tribunal said something about the conduct of the four day hearing. They described the Appellant as speaking in a loud voice and exhibiting a somewhat aggressive manner to the Tribunal and occasionally to witnesses, such that on two occasions the Chairman had to raise his voice to keep control of the proceedings. Particular instances were highlighted. During the hearing the Appellant complained that he was not getting a fair trial and eventually the Chairman offered him the option of either applying for the case to be stopped and remitted to a different Tribunal or awaiting the result and exercising his right of appeal if necessary. The Tribunal's reasons also set out the timetabling of the hearing, it having been listed at an earlier directions hearing, held before a different Chairman on 4 April 2000, for four days.
- By his Notice of Appeal dated 19 September 2000 the Appellant complained that the Chairman, Mr Duncan, had subjected him to an unfair hearing. He developed that theme in a number of respects under his grounds of appeal. We shall refer to that complaint, compendiously, as the unfair hearing point.
- In accordance with paragraph 9 of the EAT Practice Direction 1996 the Appellant lodged an affidavit sworn on 23 October 2000 in support of the unfair hearing point, to which the Chairman responded by letter dated 14 November 2000. Mr Moon also provided his comments by a letter dated 19 December 2000. It was on this basis that the matter was listed for ex parte preliminary hearing before a differently constituted division on which I sat on 19 March 2001. We continue to use the expression ex parte rather than the modern term, hearing without notice because in fact the Respondent is given notice of the hearing, but is not permitted to make representations on the principal question at such preliminary hearing, namely whether the appeal raises any arguable point of law to go to a full hearing with both parties present, merely as to directions if the case is allowed to proceed.
- At the preliminary hearing the Respondent did not attend and the Appellant was represented by Mr Fodder of Counsel, appearing under the ELAAS pro bono scheme. It was clear to the members of the Appeal Tribunal, on pre-reading the papers, that there were sharp conflicts of fact in the accounts of the hearing below given by the Appellant on the one hand and the Chairman and Mr Moon on the other.
- As to the resolution of those factual issues we raised with Counsel the guidance given by Lindsay P in Facey -v- Midas Retail Security  IRLR 812, para 39. Having done so Counsel applied for and was granted an adjournment of the appeal hearing on the basis of directions given for further affidavit evidence from the Appellant, if necessary; an affidavit from a representative of the Respondent, and for written comments or witness statements from the members of the Tribunal panel which heard the case.
- In the event the Appellant lodged a further affidavit sworn on 9 April 2001; Mr Moon responded by an affidavit dated 16 May and each member of the Tribunal provided his or her written comments on those affidavits in early June.
- The matter was then put before me and I gave a direction on 29 June that the appeal be relisted for a restored ex parte hearing at which both the Appellant and Mr Moon were required to attend for cross-examination if necessary. I should give my reasons for that direction, which may have had the appearance of unfairness to the Respondent, which is on the face of it put to the expense of providing its representative as a witness, without that representative having the right to cross-examine the Appellant or make submissions under the ordinary ex parte procedure. The reason relates to a matter that I raised in the directions judgment which I gave on the last occasion. As I understand the position the invaluable ELAAS scheme ends after an ex parte preliminary hearing because professional indemnity cover does not extend to representation at a full hearing with both parties present. In these circumstances the Appellant would be prevented from taking advantage of free representation by Counsel at such a hearing.
- In the event the Appellant decided not to use the services of Counsel, available to him under the ELAAS scheme at this hearing, and in these circumstances, without objection, we treated this hearing as an inter partes preliminary hearing, permitting Mr Moon to cross-examine the Appellant and make submissions, thus redressing any perceived imbalance between the rights of the parties flowing from my earlier directions.
- Meanwhile, at the earlier preliminary hearing Counsel raised an additional ground of appeal which the Appellant wished to argue, directed to the Tribunal's finding that no procedural irregularity occurred at the internal dismissal stage, or if it did it was cured on appeal before Mr Foo. That further ground, which we shall call the internal appeal point, was then formulated in amended grounds of appeal, in respect of which I gave permission to amend. It is to the unfair hearing point and the internal appeal point to which we now turn. We shall deal with them separately.
The unfair hearing point
- It is well established on high authority that every litigant before the Courts, including the Employment Tribunal, is entitled to a fair hearing by an independent and impartial Tribunal. In particular, he will not have received a fair hearing if there is a real danger of the possibility or appearance of bias on the part of the Tribunal. R -v- Gough  AC 646, 670, per Lord Goff of Chieveley. As to the circumstances in which an appearance of bias may or may not arise see the guidance in the Locabail group of cases  IRLR 96.
- The principle has been formally incorporated into domestic law by the Human Rights Act 1998, itself incorporating the European Convention on Human Rights and in particular Article 6. No point arises in the present case as to the application of the Act to proceedings before the Tribunal, concluded before the coming into force of the Act in October 2000. See R -v- Lambert  3 WLR 206.
Did the Appellant have a fair hearing?
- We begin with the factual dispute as to precisely what happened during the hearing below. We have seen and heard both Mr Shwky and Mr Moon giving evidence before us, each cross-examining the other.
- The sharp conflict of evidence as to what happened before the Employment Tribunal remains and it is our task to determine where the truth lies. We say at once that Mr Shwky conducted himself during the hearing before us with commendable courtesy and proper restraint. We did not recognise the sort of misconduct described by the Tribunal Chairman and members, confirmed for the most part by Mr Moon, in Mr Shwky's behaviour before us. There are two possible explanations for that state of affairs. Either the Tribunal account is wrong or Mr Shwky was, on this occasion, on his best behaviour, aware that any repeat performance would undermine his attempts to succeed in this appeal.
- We have concluded that the second of these possibilities is the more probable for the following reasons. Parts of his evidence we found incredible, for example;
(a) the suggestion that the Chairman told the Appellant that he could not object to the production of a document by the Respondent because he was unrepresented;
(b) that the Chairman told him to sit up properly;
(c) that when Mr Moon returned to the Tribunal on the afternoon of the last day of hearing, having taken a short break for medication, he answered the Chairman's enquiry about his health with the words "I will feel better when he [the Appellant]'s knee capped."
- It is quite correct, as the Appellant points out, that in some respects Mr Moon's evidence differed from the account given by the Chairman. For example, whether at one point the Chairman gave the Appellant a costs warning concerning his conduct. Rather than undermining the evidence of Mr Moon as a whole, it tended to show that he has done his best to provide us with his independent recollection of events, rather than simply to agree with everything the Chairman has said.
- Indeed that incident, common ground between the Chairman and the Appellant, leads us to conclude that the Appellant did behave badly during the hearing below; he was loud and aggressive; if the Chairman raised his voice it was to assert his authority; we find it improbable that the Chairman would have issued a costs warning to an Appellant behaving as the Appellant claims he behaved.
- In short, we are not persuaded that the Appellant did not receive a fair hearing. On the contrary, the picture we have formed is that of a difficult hearing to conduct, attributable to the Appellant's behaviour and his frequent interjections. Accordingly we reject the first ground of appeal.
The internal Appeal point
- The Tribunal had in mind the Appellant's complaints about members of management during his employment which rendered it difficult for the Respondent to conduct disciplinary proceedings through staff who were wholly untainted by such allegations. Any parallel with the judicial process is inapplicable; it not being truly analogous. Rowe -v- Radio Rentals Ltd  IRLR 177.
- The Tribunal were satisfied that it was not inappropriate for Mr Sherman, on the particular facts of the case, to conduct the disciplinary hearing; if it was, then the full rehearing leading to the decision by Mr Foo to dismiss the appeal was a permissible option open to the Respondent to cure any earlier defect. We are unable to find any error of law in either of those findings.
- It follows that we shall dismiss this appeal. We would add this. The passing of the Human Rights Act should not be seen as a licence for unruly litigants to misbehave before Employment Tribunals and to then use the appeal process in order to obtain a second bite of the cherry. Speaking for ourselves we shall scrutinise closely any attempt to do so. It is our experience generally that Tribunals sometimes face a difficult task in controlling proceedings in a way which is fair to both parties. Where there are exceptions we shall not hesitate to say so; otherwise, we do not regard it as being part of our function to undermine the need for Tribunals, on occasions, to robustly maintain their judicial authority.
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