Appeal No.	 EAT/25/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 July 1999

Before
HIS HONOUR JUDGE PETER CLARK
MRS R CHAPMAN
MR P DAWSON OBE

MR J B HEALEY	APPELLANT

JOHN ADAMS & SONS LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON

	JUDGE PETER CLARK:	This is an appeal by Mr Healey, The Applicant, before an Employment Tribunal sitting at Liverpool under the Chairmanship of Mr K E Robinson on 29 July, 2 September and 7 October 1998, against that Tribunal’s reserved decision promulgated with extended reasons on 5 November 1998, dismissing his complaint of unfair dismissal for an inadmissible reason under section 100(1) of the Employment Rights Act 1996 (the Act) brought against his former employer, the Respondent John Adams and Son Ltd.

1	The Appellant was employed by the Respondent as a long distance lorry driver working nights from 21 June 1997 until his dismissal on 14 January 1998.  Not having completed two years qualifying service for the purpose of section 108(1) of the Act, his complaint of unfair dismissal could only succeed if he showed that the reason, or principle reason, was an inadmissible reason rendering his dismissal automatically unfair.  If so, no qualifying period of service was required under the Act.  

2	In short, it was his case that he was required to make journeys at excessive speeds with the speed limiter on his vehicle disengaged.  It was the Respondent’s case that he was dismissed by Mr Stobo, the Depot Manager, for refusing to obey a reasonable instruction to make three journeys to Scotland in a week, something which he had regularly done in the past.

3	The Tribunal accepted the case of the Respondent and rejected that of the Appellant.  Indeed, the Tribunal found as a fact, that the Appellant manufactured the situation with Mr Stobo so that there was confrontation between them.  

4	The circumstances leading up to the dismissal are fully set out in the Tribunal’s reasons and in particular in their findings of fact.  We need not repeat them here.  The first issue raised in this appeal is whether or not the Chairman ought to have disqualified himself from adjudicating in this case.  

5	In an affidavit sworn on 3 February 1999, the Appellant states that he had brought a similar complaint against an earlier employer, Excel Logistics, in November 1996.  In connection with that claim, he says that he took advice from a firm of solicitors, Jackson and Canter of Liverpool.  He saw a Mr Carl Saunders of that firm and then shortly afterwards his supervising partner in the firm, Mr Keith Robinson.  It is that Mr Robinson who chaired the Employment Tribunal in the present case.  The Appellant contends that he gave a bad impression of himself to Mr Robinson during a consultation at his office.  

6	Following the completion of the hearing in the present case, the Appellant, who had not recognised Mr Robinson during the hearing, nor he the Appellant, contacted Jackson and Canter on 28 October 1998 in connection with a remedies hearing in his successful claim against Excel.  During a conversation with Mr Cunliffe of that firm, the Appellant realised that the Chairman of the Adams Tribunal was the same person who had advised him in the Excel case.  He informed Mr Cunliffe of that fact.  At that stage the reserved decision in the present case had not been promulgated.  Mr Cunliffe pointed out that Mr Robinson could not advise the Appellant in the Excel case, but that would not prevent Mr Cunliffe from acting. 

7	The Appellant saw Mr Cunliffe the next day, 29 October, and they discussed the upcoming remedy hearing in the Excel case.  Then, on 2 November Mr Cunliffe telephoned the Appellant to say that he had been to Mr Robinson for assistance but had been advised that the firm should not act for the Appellant in the Excel case.  He was advised to go to other solicitors.

8	It is the Appellant’s submission that Mr Robinson must have remembered him from the Excel case and that this compromised his impartiality in dealing with the Adams case as Chairman.  This, he alleges is reflected in the Tribunal’s rejection of his case in all respects.

9	The Chairman, Mr Robinson, has responded to that affidavit by a letter dated 23 February 1999.  He accepts that the Appellant saw Mr Saunders in connection with the earlier case.  He cannot himself recall seeing the Appellant but he may have done  He did not recognise the Appellant during the Tribunal hearing and he says this:

“If I had remembered at Tribunal that I had seen him or if I had known my firm had acted for him I would not have allowed myself to be Chairman of the Tribunal.”

10	In relation to the Appellant’s contact with Mr Cunliffe between the Tribunal hearings and promulgation of the reserved decision, the Chairman agrees that he advised Mr Cunliffe that as he, Mr Robinson, had dealt with the Appellant’s Tribunal, it would be inappropriate for Jackson and Cantor to become involved.  

11	Against that background, we are concerned as to whether or not it was right for the Chairman, having been apprised of the situation, to continue to the promulgation of the decision.  Had the Appellant contacted Mr Cunliffe after the decision had been promulgated, we can see no difficulty.  However, it is that very narrow point which it seems to us, requires full argument at an inter partes appeal hearing and we shall allow the appeal to go forward on that point.  

12	In his Notice of Appeal the Appellant sets out many and various grounds for appeal.  At section A1, he submits that the Tribunal were wrong to refer only to section 110 (1)(c) of the Act and not to the alternative basis on which the Appellant put his claim in his form IT 1, that is under section 100 (1)(e).  Looking at the facts of the case, it seems to us that section 100 (1)(c) was entirely appropriate had the Appellant made out his case on the facts.  Section 100 (1)(e) adds nothing.  In these circumstances, it seems to us that there is no legitimate complaint in relation to the sub-subsection of the Act on which the Tribunal approach the claim.

13	As to the remaining matters we are quite satisfied that these are attempts to reargue the facts of the case.  The particular point which the Appellant urges on us today is that in section C of the grounds of appeal.  He has taken us to a passage in the transcript of a recording of a conversation between himself and Mr Stobo and he submits that the Tribunal reached a perverse conclusion when they found that the Respondent, through Mr Stobo, had given him a reasonable lawful instruction to drive on three journeys to Scotland in the week.  He submits that it is clear from the transcript that Mr Stobo required him to drive in excess of the maximum permitted for his vehicle (that is 90km/hr).  

14	It seems to us that the Tribunal had to weigh up the actual evidence before them of Mr Stobo on the one hand, and the Appellant on the other assisted by the transcript of the earlier conversation.  We see no reasonable prospect of an argument succeeding on the basis that this was a perverse finding.  

15	In these circumstances we shall permit the matter to proceed to a full hearing solely on the point which we have identified, that is whether the Chairman ought in the circumstances to have continued to an adjudication in this case.  For that purpose the appeal will be listed for a full hearing, two hours, Category C.  There will be exchange of Skeleton Arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. Skeleton Arguments will be lodged with this Tribunal at the same time.  There are no further directions, in particular, there is no requirement for Chairman’s Notes of Evidence.