Appeal No.	 EAT/0470/02/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 June 2003

Before
HIS HONOUR JUDGE D M LEVY QC
MS S R CORBY
MRS J M MATTHIAS

MR J KEAR	APPELLANT

NEURAL TECHNOLOGIES 	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised 8/9/03

	APPEARANCES

For the Appellant	The Appellant in person	
For the Respondents	Mr P Broom
(Solicitor)
Messrs Blake Lapthorn Linnell Solicitors
New Court
1 Barnes Wallis Road
Segensworth
Fareham
Hants	

HIS HONOUR JUDGE D M LEVY QC

1	The case arises in the following circumstances.  As long ago as October 1999 Mr Kear (“the Appellant”) made a complaint to an Employment Tribunal in respect of his employment with Neural Technologies (“the Respondents”); he alleged breach of contract.  The matter came before an Employment Tribunal and then on to this Tribunal which ordered a further hearing before an Employment Tribunal.  There was a further Originating Application in November 2001, which added to the first claim, one of wrongful unfair dismissal.  

2	The second Employment Tribunal gave a Decision on 7 March 2002, with Extended Reasons.  A claim by the Respondent was dismissed on withdrawal; the Appellant’s dismissal by the Respondents was held to be wrongful, being in breach of contract and the Respondents were ordered to pay the Appellant the sum of £8000 in damages.  An application by the Applicant to amend the Originating Application was refused; a claim by the Respondents for costs was refused.

3	From that, the Appellant lodged a Notice of Appeal dated 17 April in which he raised a number of points.  The Preliminary Hearing of that appeal came before a panel headed by Ms Recorder Slade on 27 September 2002.  Some grounds of appeal were abandoned by the Appellant.  Three were permitted to proceed to a full hearing, the panel suggesting an amended Notice of Appeal could usefully identify them, and directed that the Chairman’s comments should be sought on each of them.

The First Permitted Ground of Appeal
4	The first of these grounds was that the Employment Tribunal failed to deal with the Appellant’s application for costs.  The Tribunal’s Decision deals with an application made by the Respondents for their costs, but contains no passage of consideration of any application from the Appellant for costs.  Comments from the Chairman were sought.  In those comments he said that there was such an application and the Tribunal had considered it but not allowed it.

5	In our judgment, it was impermissible for the Tribunal (a) not to rule on an application which it heard or (b) to deal with it in the way that this Tribunal said it did.  On this issue, in our judgment, the matter has to go back to the Employment Tribunal for further consideration of the matters on which the Appellant relied in his application for costs.  He is, of course, not entitled to bring in new matters, but his earlier submissions must be considered and answered.

The Second Permitted Ground of Appeal
6	The second ground which Ms Recorder Slade said could come to a fair hearing was that the Appellant contended that the Employment Appeal Tribunal erred in that it failed to deal with his contractual claims for three matters which he advanced before it.  

7	First the employer’s pension contributions during the three month notice period; second, for the loss of reimbursement of relocation expenses, which he says he suffered by reason of the summary termination of his employment, and third, by the loss of the employer’s National Insurance contributions.  He points to the document at page 53 in the bundle which was then before the Tribunal, headed “Part 5 My Claim” to indicate that he had made submissions relating to those three matters which he advanced before it.  He tells us he made his submissions orally before the Tribunal.  

8	The Tribunal dealt with the quantum of the damages in paragraph 6 of the Extended Reasons, stated that by consent it was agreed that a payment of £8000 was made.  The Appellant tells us that he did not agree to that sum; £8000 was a figure for his gross wages or his gross wages net of tax in the three months period, making no allowance for the other matters claimed.  

9	We have not heard mention of the National Insurance contributions payment, but it is likely that he should have been given some payment in respect of pension contributions, a percentage of the sum in respect of relocations, which was part of his contract, as appeared from a document which he showed us, from which Mr Broom could not help us further.  

10	In respect of this claim, it seems to us that the appeal must be successful to the extent that we should allow for the matters on which the Appellant has satisfied us he should have been compensated under a straight breach of contract claim.  We understand from him that the figures claimed are £900 in total for the two matters.  Therefore, in respect of the breach of contract claim, we will make a further award of £900.  We understand that the £8000 which the Tribunal awarded has already been paid.

The Third Permitted Ground of Appeal
11	The third ground on which Ms Recorder Slade said should come forward to a full hearing was the claim by the Appellant that the Tribunal erred in that it failed to deal with his claim for stigma damages.  He, in submissions to us, has said that, by reason of his dismissal for gross misconduct, that labelling of his dismissal caused him disadvantage in the labour market, for which he claimed damages.  

12	The learned Recorder rightly noted that there was no reference whatsoever to that matter in the Decision of the Employment Tribunal, but again, so far as damages for compensation to his reputation is concerned, he says that claim was advanced before the Employment Tribunal.  Again, whatever its merits ultimately, if this was a claim which was made before the Employment Tribunal, it is arguable that the Tribunal erred in failing to deal with that claim; lest there be any doubts as to the nature of the claim being made, Mr Kear complains that he should have stigma damages in accordance with the principles outlined in Malik -v- BCCI.

13	In that connection, Mr Broom for the Respondent has referred us to a judgment given by Judge Clark in this Tribunal in Nicholson -v- Budget Insurance Ltd in which he suggested that in the normal case the principles of the Malik case would not extend beyond those of that individual case, to that of an employment situation.  He recognised that it might be possible for a claimant to show that his future prospects were undermined by the facts of corruption associated with the employer, but submitted that does not appear to be the case here.  It may well be that if this matter goes back to the Employment Tribunal the Appellant will fail completely if the Tribunal does consider the decision of Judge Clark in the context of that case, but it is not something that we can deal with without findings of fact on the issue which it is for the Tribunal to make.

14	The Chairman’s comment was to the effect that it had been dealt with by the members in consultation, but it is not good enough for that simply to be stated in the Chairman’s comments.  The reasons why the claim failed should be in the Extended Reasons of the Tribunal.  This point, therefore, we also think should go back to the Tribunal for, if necessary, further argument so that it can deal with this aspect in a reasoned decision of the Appellant’s claim.  

15	The appeal, therefore succeeds to this extent: on the second of the three grounds of appeal which we have considered we will substitute for the award of the Tribunal an additional sum of £900 and we will order that the other two grounds are returned to the Tribunal for further consideration.  

Respondent’s Application for Costs
16	The Respondent has made an application for costs on these grounds.  First, in the preparation of this appeal, the Appellant had sent to him and others scurrilous and unpleasant  e-mails which have caused him difficulty within his firm in dealing with them, and added to costs for the preparation of this trial.  We were shown four illustrations:

(a)	an email dated 3 March from the Appellant to Mr Broom and another, stated:
“I am calling for a full public enquiry into the outrageous corruption that you preside over”
(b)	a passage in an e-mail 7 February 2003 to Mr Broom reads:
“How on earth do you claim that an unreported case sets a legal precedent over and above Malik?  There are more recent cases that are reported via the EAT which blows your charade out of the water.  You are not fit to practise in law.”
We have to say that no case was cited by the Appellant to blow Mr Broom’s case out of the water and “You are not fit to practise in law” is not a remark which should be made by a litigant in person to a solicitor.

(c)	a comment which the Appellant made in an e-mail sent only the other day to many people was:
“You will of course agree that his actions are scandalous and bring shame and disrepute not only on [his firm] but on the legal profession.”

(d)	a passage in a fourth email referred to the work done by the Respondent solicitors in this as:

“these acts of colossal incompetence and corruption are generally paid for by decent, honest and hard working people”

17	We were referred to the Employment Appeal Tribunal Rules 1993, Rule 34, which reads:
“(1)	“Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings.”

Those e-mails certainly seem to have been sent in the course of conducting the proceedings.  

18	The Appellant made a complaint that he was not afforded the assistance he should have been by Mr Broom in being provided with an authority which Mr Broom wished to rely.  That was a judgment given by Judge Clark at this Tribunal on 8 July 1998 and entered on 23 July 1998 in the proceedings Nicholson -v- Budget Insurance Ltd.  The position appears to be that he obtained via a search from Lawtel of that judgment, sent a copy of it to Mr Broom, and told him that he could apply for a copy of it from this Tribunal.  Mr Broom did in fact apply for a copy of it from this Tribunal, and it was sent to him a couple of days later.  A couple of days after that he sent a copy of it to the Appellant.  It seems to us that Mr Broom’s conduct in dealing with this request was absolutely correct.  

19	The Appellant went on to complain to us that he had made a search of the Respondents in Judge Clark’s case, Budget Insurance Ltd, and found it was not on the Companies Register and suggested that Mr Broom had fabricated the judgment.  That was a scandalous suggestion to make, the more particularly as the copy of the judgment with which we have been provided is from the same source that was provided on request by the Tribunal; it is quite clear beyond peradventure that it is not only a judgment of this Tribunal, but also one which may absolutely be determinative of this appeal in due course.  However that may be, if Mr Kear is conducting his litigation against the Respondents in the manner in which these two episodes show, then it seems to us from what we have heard that the Respondents may well have grounds for complaint about him.  

20	Another matter about which justifiable complaint can be made is that the Appellant, notwithstanding the clear directions of the Court, produced a bundle for this hearing which was handed to us soon after the appeal was called on.  Because the Appellant had not produced a bundle, Mr Broom had helpfully prepared for this hearing a bundle which we read.  All these matters seem to us to justify an award of something to the Respondents to this appeal, in respect of their costs because of the way it has been conducted by the Appellant.  We will hear from Mr Broom the costs which he now seeks to recover.  

21	There has been behaviour which we think should be marked.  The Appellant has clearly had added costs because of this and added costs because of non-preparation of the bundle.  Rather than sending it for a fixed assessment, it seems to us that we should deal summarily and award to the Respondents the sum of £300 in respect of the conduct which we have mentioned in this section of the judgment.  Such sum, it seems to us, can properly be deducted from the sum which has to be paid to the Appellant under the earlier part of our Order.