Appeal No. EAT/1126/02 SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 May 2003

Before
HIS HONOUR JUDGE PETER CLARK
LORD DAVIES OF COITY CBE
MR R N STRAKER

MR STEVEN WAYNE PESTICCIO	APPELLANT

MITSUI BABCOCK ENERGY LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR S W PESTICCIO
(the Appellant in Person)	
For the Respondent	MR JAMES LADDIE
(of Counsel)
Instructed by:
EEF Legal Services
Broadway House
Tothill Street
London SW1H 9NQ	

HIS HONOUR JUDGE PETER CLARK

1	This is an appeal by Steven Pesticcio, the Applicant before the Cardiff Employment Tribunal, against that Tribunal’s decision, promulgated with Extended Reasons on 29 September 2002, dismissing his various complaints brought against the Respondent Mitsui Babcock Energy Ltd, by whom he was employed as a welder from 20 April 2001 until his resignation effective on 25 May 2001.

2	He commenced these proceedings by an Originating Application presented to the Tribunal on 11 June 2001.  There, he described his claim as constructive dismissal on the grounds of (1) sexual discrimination and (2) religious discrimination.  To those claims he added further claims.  First, by a letter to the Tribunal dated 16 August 2001 he added (1) breach of contract, (2) constructively dismissing a ‘whistleblower or potential whistleblower’, (3) indirect racial discrimination.  Secondly, by a letter dated 21 August he added a complaint that the Respondent had violated his rights under the “time off for dependents” law, that is, the right contained in section 57A of the Employment Rights Act 1996.

3	The Tribunal heard the substantive case over four days followed by a day’s deliberations in private.  In a well-organised decision the Tribunal identified eight separate complaints; made their findings of fact, having expressed their view on witness credibility; reviewed the parties’ submissions, directed themselves as to the law in relation to each complaint and stated their conclusions, applying that law to the facts as found.

4	The Appellant appeared in person below and then settled a Notice of Appeal containing three grounds:

(1)	that the Tribunal was wrong to find that his section 57A complaint was out of time;
(2)	that various ECHR rights had been breached, particularly Articles 6, 8, 9 and 14;
(3)	that the Tribunal wrongly placed the burden of proof on him.

5	The appeal came on for Preliminary Hearing before a division presided over by Burton P on 20 January 2003.  On that occasion the Appellant was represented by Counsel, Mr Peters, under the ELAAS pro bono scheme.  It seems that Counsel sought permission to amend the grounds of appeal to add a number of further arguments in substitution for the original grounds of appeal.  Permission was granted to amend in those terms, subject to the Respondent’s opportunity to apply for a discharge of that permission.  The appeal was then adjourned for this bilateral Preliminary Hearing.

6	The Respondent has made that application.  In a detailed Skeleton Argument lodged in advance of this hearing by Mr Laddie, objection is taken in principle to the amendments sought and granted on the last occasion and, substantively, it is submitted that in any event these new grounds have no reasonable prospect of success and that the appeal should be dismissed at this hearing without going forward to a full appeal hearing.  We indicated that we wished to hear the substantive arguments before ruling on the procedural objection, without dissent from either party.

7	Mr Pesticcio, who today represents himself, albeit with some assistance from Ms Sally Robertson, effectively acting as a pro bono Mackenzie friend, has taken us through the amended grounds of appeal.  They are as follows:

(1)	As to his breach of contract claim, he was hampered at the substantive Tribunal hearing, which began on 22 April 2002, by an earlier order made by a Chairman in November 2001, refusing his application for disclosure of documents, which he contends were relevant to that claim.  Consequently, he submits, he did not receive a fair hearing of that part of his complaint, contrary to Article 6 ECHR.

We think the short answer is that if he was dissatisfied with the earlier interlocutory order, he could and should have appealed it timeously to the EAT.  He did not do so.  Nor did he renew his application for disclosure, although he complained about the earlier order, at the substantive hearing.

Secondly, he complains that the Tribunal made a perverse finding at paragraph 39 of their reasons.  The factual issue for the Tribunal there dealt with involved the question as to whether, in relation to particular work, the Appellant was to receive the whole of the bonus applicable to the work done, or whether he was to share it with others.  He said that he was to receive the whole of the bonus.  Mr Jenkins, the Welding Supervisor, disputed that claim.

On this factual issue the Tribunal, at paragraph 40, were not satisfied that the Applicant’s version was correct.  Thus, on this factual basis, the breach of contract claim failed.

It seems to us that this was a pure question of fact for the Tribunal and one with which we cannot and should not interfere.  Accordingly, we reject the first ground of appeal.

(2)	Next, Counsel appearing on the last occasion and drafting the amended grounds of appeal contended that the Tribunal had failed to adjudicate on a material issue, namely the question as to whether the Appellant was dismissed for asserting a statutory right; that dismissal being automatically unfair under section 104 ERA.

	The difficulty with that contention is, as Mr Pesticcio accepts, the point was not raised below.  The simple reason for that was that he was unaware of such a cause of action.  Mr Laddie has reminded us of the now well-established principle in the Appeal Tribunal that a point of law not taken below cannot be taken for the first time on appeal, unless there are exceptional circumstances.  See Jones v Governing Body of Burdett Coutts School [1998] IRLR 521.

The only reason advanced for not taking the point below is that the Appellant, then being unrepresented, was not aware of it.  Ignorance of the law in practice is not a good excuse, nor an exceptional circumstance: see Kumchyk v Derby City Council [1978] ICR 1116.

Accordingly, we shall not entertain that ground of appeal.

(3)	Next, the section 57A claim.  The amended grounds of appeal raise an issue as to whether the Tribunal, having found that that claim was brought outside the primary limitation period, ought to have gone on to consider further whether or not it was reasonably practicable to bring it within time.
This morning, Mr Pesticcio advanced a different argument before us, namely that the claim was not out of time under the primary three month limitation rule.  We do not find it necessary to deal with that part of the appeal in these circumstances.

At paragraph 49 of the Tribunal’s reasons, they deal with the section 57A claim on its merits.  The basis of the claim, on the Appellant’s case, was that he received a verbal warning for absences which covered a period when shortly after the birth of his child he was necessarily at home to assist his wife.

The Tribunal found as a fact that the verbal warning for absences related only to a later period than that about which the Appellant was complaining under this part of his case.  We see no basis for interfering with that finding of fact; and the facts having been found in that way wholly undermines the section 57A claim and we would add the sex discrimination claim which was also brought by the Appellant and dismissed.

(4)	Next, the claim based on the Public Interest Disclosure Act 1998.  At paragraphs 64 and 65 of the Tribunal’s reasons they deal with the question as to whether there had been a disclosure at all and found that there had not.  They also make findings of fact at paragraph 64 which might point to a conclusion that the Appellant did not have a reasonable belief in the allegation which he was then making.

But it seems to us that those matters are immaterial in the light of the Tribunal’s subsequent finding at paragraph 72.  First, that there was no constructive dismissal and, second, that even if there had been a qualifying disclosure by the Appellant it did not lead to dismissal.  That failure to establish either a dismissal or a causative link between any putative dismissal and the alleged disclosure, wholly defeats that head of claim.

(5)	Finally, Mr Pesticcio complains that, in relation to two Sundays on which he was required to but did not work, there was no contractual obligation on him to work on those days.  It was those days in relation to which the Tribunal found the verbal warning was given.
	
	The first difficulty is that, as Mr Pesticcio frankly concedes, this factual complaint was not associated with any breach of contract complaint which he put before the Tribunal.  Rather, it went to, first, his complaint of religious discrimination, although he accepts that at this stage there is no legislation outlawing religious discrimination in this county and, further, he accepts that any abuse directed towards him and his religion (he is a Roman Catholic), did not fall within the ambit of the Race Relations Act 1976 because membership of the Roman Catholic Church does not amount to membership of a particular racial group.

8	Thus, having considered the way in which the amended grounds of appeal are framed and the way in which they are put by Mr Pesticcio today, we are not persuaded that any of them raise any arguable point of law which ought to go forward to a full hearing.

9	In these circumstances, interesting though they are, we do not find it necessary to decide the procedural points which Mr Laddie was prepared to deploy, had any of the amended grounds of appeal been thought fit to proceed to a full hearing.

10	It follows that this appeal must be dismissed.