Appeal No. EAT/0105/03 ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 March 2003

Before
HIS HONOUR JUDGE ANSELL
(SITTING ALONE)

MR S EMMS	APPELLANT

UCATT	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A SCARGILL
National Union of Mine Workers
Miners Office
Huddersfield Road
Barnsley S70 2LS	
For the Respondent	MR HOGARTH
(of Counsel)
Instructed by:
O H Parsons & Partners Solicitors
3rd Floor
Sovereign House
212-224 Shaftesbury Avenue
London WC2H 8PR	

HIS HONOUR JUDGE ANSELL

1	This is an appeal from a refusal of a Chairman sitting alone to grant either a pre-hearing review and/or to strike out a Notice of Appearance on the grounds that as far as the pre-hearing review is concerned it was submitted that the Notice of Appearance had no reasonable prospect of success and in terms of the strike out that the Notice of Appearance was scandalous, misconceived or vexatious.  The Chairman refused to either strike out or grant a pre-hearing review and took the view that these were matters that required to be determined by oral evidence.

2	The background to the case is that in March 2001 Mr Emms was then an employee of the Respondent Union and there was a strike by the workforce at the Willerby Caravans site.  The strike took place following a ballot of the membership of the Union.  The company contended that the strike was unlawful for a number of technical reasons relating to the giving of the required notices and indeed I understand there is still continuing litigation in relation to the legality of that strike between the employers and the Union.

3	After taking advice the Union was concerned about the possibility that some of the issues raised by the employers as to the lawfulness of the strike out could be correct with the result that they could be sued by the employer.  As a result the Union decided that they would have no option but to call off the strike.  The General Secretary Mr Brumwell who was away at the time instructed the Regional Secretary Mr Johnson to ensure that that was done.  These instructions were oral.

4	The allegation against Mr Emms was that he was spoken to on 27 March and informed of the Union’s decision.  It was agreed that both Johnson and Emms would attend a mass meeting of the members the following day and that they would tell the members that they should return to work.  Mr Johnson’s case was that he emphasised to Mr Emms that it was essential the two of them, the only full time officials present at the meeting, should both instruct the unions in the same vein.  Before the meeting had taken place Willerby had in fact dismissed six persons including shop stewards who they believed were the ringleaders of the strike.

5	Contrary to what were said to be his instructions, Mr Emms did not instruct the striking members to return to work and indeed apparently attempted to persuade them to continue with their strike.  Mr Emms denied that he was ever given this instruction and alternatively contends that in any event such an instruction was unlawful according to the rules of the Union.

6	The six strikers eventually took Tribunal proceedings and they were concluded in April 2002.  In around September 2002 the Union decided, in accordance with their disciplinary policy, to commence proceedings against Mr Emms alleging that he had broken his contract, broken the trust and confidence between him and his superiors by refusing the instruction that he had been given by Mr Johnson.  The instigation of those proceedings followed a meeting of the Executive Council of the Union and indeed that Executive Council acted as the initial disciplinary forum when it was decided that he would be dismissed.  That was by a vote of 6 to 3 on the Executive Council.

7	There then followed an appeals hearing that was chaired by an independent person and that appeals hearing upheld the decision to dismiss and as a result subsequently Mr Emms has commenced unfair dismissal proceedings against the Union and those proceedings were due to be heard next week, although I have been told now that that may not be the situation and there may be a delay in hearing until the month of May.

8	Mr Scargill, who has acted for Mr Emms recently, wrote to the Employment Tribunal seeking either a pre-hearing review or a striking out of the Notice of Appearance.  The Notice of Appearance itself seeks to justify the dismissal, very much on the grounds that I have already indicated, and in dealing as an alternative in paragraph 17 suggests that even if the Tribunal were to find the dismissal to be unfair they contend that either result would have been the same if the allegation had been dealt with earlier and/or that Mr Emms contributed to his own dismissal.  They also seek credit for a sum of £5,000 that he was paid on dismissal and also the salary paid to him from March 2001 until dismissal should also be taken into account when assessing any compensation.

9	Under Rule 7 of the current Rules of Procedure:

7	(1)	“A tribunal may at any time before the hearing of an originating application, on the application of a party made by notice to the Secretary or of its own motion, conduct a pre-hearing review, consisting of a consideration of:
		(a)	the contents of the originating application and notice of appearance;
		(b)	any representations in writing; and
		(c)	any oral argument advanced by or on behalf of a party.
(2)	If a party applies for a pre-hearing review and the tribunal determines that there shall be no review, the Secretary shall send notice of the determination to that party.
…
(4)	If upon a pre-hearing review the tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have no reasonable prospect of success, the tribunal may make an order against that party requiring the party to pay a deposit of an amount not exceeding £500 as a condition of being permitted to continue to take part in the proceedings relating to that matter.”

10	Clearly this was a rule that was brought in to act as a disincentive for parties bringing claims which had little or no merit and as a disincentive to pursuing those there was a requirement to pay a deposit of £500.  It does not seem to me that that in any sense can be regarded as an appropriate action to try and persuade a well-established Union from pursuing a defence to a claim for unfair dismissal.

11	The striking out provisions are stricter and they provide that a Tribunal can strike out an Originating Application or Notice of Appearance on the grounds that it is scandalous, misconceived or vexatious.  Mr Hogarth for the Respondents submits very forcibly that the Notice of Appearance in this case has substantial merit and therefore satisfies neither the pre-hearing review test nor the stricter test under the striking out provisions.

12	Mr Scargill contends that he has three or four substantial arguments in this case which would entitle a Tribunal Chairman at a preliminary stage to say that they are so strong and of such merit that they are effectively indefensible by the Respondents to this case.

13	He says, first of all, that the point on delay is a very strong point and I have referred already to the history of the case.  He does not put the case quite in this way but quite clearly a Tribunal would have to consider issues such as affirmation, a waiver of any breach in relation to an allegation of gross misconduct where there has been continuing employment for well over a year thereafter, including, I have been told, two new contracts of employment.  He points specifically to the case of RSPCA v Cruden [1986] IRLR 83, which clearly established that delay is certainly an important factor when a Tribunal considers whether a dismissal was fair or unfair.

14	But as with the other points in this case, it seems to me that these are no more than issues which will have to be determined by a Tribunal.  The Respondents are entitled to place before a Tribunal, as indeed they must have done within the Cruden case, reasons for the delay and the impact of that delay on the fairness or otherwise of the proceedings.  In their Notice of Appearance in this case they seek, certainly in part, to rely on the fact that there were continuing Tribunal proceedings in relation to the six strikers, which had to be determined before matters could be considered; but quite clearly in my view there are issues of fact to be decided here as to the reasons for and impact of the delay.  To shut out Respondents at this stage on this particular issue seems to me to be totally unfair and indeed Mr Scargill, who has as his final submission reminded me of the fairness provisions within the Human Rights Convention, seems on the one hand to demand fairness for his own client and at the same time seems to be denying that fairness to the Respondents in terms of a balanced and fair hearing.  In my view that cannot be correct.

15	The second complaint relates to the instruction that Mr Emms is said to have disobeyed.  His case on the facts is that in fact he did not disobey instruction at all and that obviously again will be an issue of fact for the Tribunal to consider, or rather they will have to consider whether the disciplinary panel and the appeals hearing got that aspect incorrect.  But again these are issues of fact to be determined.  He points to the Union Rule Book which suggests that it is the Executive Council that has power in these matters.  The case against Mr Emms, of course, is that he was actually simply disobeying an order from his superior.  It is a matter to be argued as to whether he was refusing to obey a lawful instruction from his immediate superior.  The issue of whether the decision to call off the strike or recommend the strike being called off emanated properly from the Executive Council or not may be a matter for that further investigation for a Tribunal hearing; but again that is an issue of fact which a Tribunal will have to decide.

16	Thirdly, it is said that there was an unfairness in the conduct of the first hearing, because the Executive Committee who had recommended the disciplinary proceedings then sat, as it were, as the judges at that hearing.  Mr Scargill points to a case in which he was involved personally, Roebuck v National Union of Mineworkers (Yorkshire Area) [1977] ICR 573.  That was a Chancery Division decision rather than an Employment Tribunal decision, although there are references within that decision from Judge Rubin to the undesirability of a person acting as it were as the prosecutor and the judge in the same proceedings.  Mr Hogarth says that is not the same as this case.  Mr Scargill in that case was intimately involved in it.  He was effectively the main complainant as to the events against and complaints against Mr Roebuck whereas in this case it was the Executive Committee who simply formally instigated the proceedings; that certainly when doing so had not come to any firm view as to the guilt or otherwise of Mr Emms.  Again it seems to me those are issues of fact to be determined by an Employment Tribunal as normal in all these cases.

17	Finally he suggests that there cannot be a fair trial.  For my part I do not quite understand the point that he is making and agree with the submissions of Mr Hogarth that what he is demanding is a fair trial without defence.  To me fairness means a fair and balanced trial when a judge or Tribunal hears the arguments for both sides and comes to a decision.  I see no grounds for denying the Respondents that opportunity.

18	For my part I agree with the Chairman’s decision.  I cannot see that the Notice of Appearance in this case fits either the test of unreasonableness, in terms of the pre-hearing review provisions, or the stricter test in the striking out provisions and I would accordingly dismiss this appeal.

19	Having dismissed this appeal I am asked to consider making an award of costs against the Appellant on the grounds that the proceedings fall within the category of unnecessary, improper or vexatious.  In particular, Mr Hogarth highlights the word unnecessary, pointing to the fact that when the decision was taken to commence these appeal proceedings there was already a final hearing date fixed which was originally fixed for next week.  Indeed, as the appeal has proceeded today, Mr Scargill has particularly laid emphasis on the refusal to hold a pre-hearing review rather than the strike out provisions.  That of course is against a background where the only effect of such a review would be to require a Union to pay £500 as a deposit of carrying on with proceedings; to my mind, a fairly pointless exercise in any event.

20	Whilst I appreciate that leave was given for this hearing by Judge Clark it seems to me that I have to look at the matter on the basis of the case that was presented to me today.  With the greatest respect to the arguments presented by Mr Scargill I am certainly of the view that these proceedings today were unnecessary, putting it at its lowest.  What I propose to do is to mark that by ordering that Mr Emms should pay £1,000 costs.  That is not as much as the Schedule of Costs which indicates a total sum in excess of £2,000.  I will order, however, that that sum should not be enforced until the conclusion of any Employment Tribunal proceedings and thus, at the end of the day, if he is successful then there can no doubt be as it were a counting exercise one way or the other in relation to either an award of compensation or costs.  So that that will be the order that I make, not to be enforced until a conclusion of the Tribunal hearing.  I express that as a contribution of £1,000 (including VAT).