Appeal No. EAT/1173/02/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 April 2003
Judgment delivered on 20 May 2003

Before
HIS HONOUR JUDGE PROPHET
MS S R CORBY
MR J R CROSBY

CALDER INDUSTRIES LTD	APPELLANT

MR M J BUTLER	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

	APPEARANCES

For the Appellant	MS RACHEL CRASNOW
(of Counsel)
Instructed By:
Messrs Weightmans
Solicitors
41 Spring Gardens
Manchester M2 2BG	

HIS HONOUR JUDGE PROPHET:

1	Mr Butler’s Originating Application was presented to the Nottingham Employment Tribunal on 26 February 2002.  It included complaints against his former employer, Calder Industries Ltd of unfair dismissal, breach of contract and wages claims.  The Notice of Appearance denied that Mr Butler had been dismissed and resisted all claims.  The employer also submitted a counter-claim in respect of breach of contract.

2	An Employment Tribunal under the chairmanship of Mr Caborn convened at Nottingham on 5 and 6 September 2002 to hear the case.  Mr Butler was represented by Ms Hinson, solicitor and the employer by Ms Jones, solicitor.  The unanimous decision of the Tribunal was that Mr Butler had been unfairly dismissed, and that there had been breaches of contract by the employer in respect of notice pay and sick pay.  However, by consent it also found in favour of the employer on the counter-claim.  At a further hearing on 22 October 2002, the Tribunal was required to assess the appropriate compensation for the unfair dismissal to be paid by the employer to Mr Butler.  The Tribunal gave comprehensive reasons for its decisions both in respect of liability and compensation.

3	The Notice of Appeal from the employer covered a number of matters.  One of these involved serious allegations of bias on the part of the Chairman.  Because of those, the Appellant was required to produce an affidavit.  In fact there were two affidavits.  The first was from Mr Rosenberg, the Managing Director of the company, and the second from Ms Jones.  We have the comments on the contents of these affidavits from the Chairman, Mr Caborn, and from one of the lay members, Mr Earith.

4	At the Preliminary Hearing today, the Appellant is represented by Ms Crasnow of Counsel with a further Skeleton Argument which reached this Tribunal yesterday and came to our attention this morning.  We say a further Skeleton Argument because there was already a Skeleton Argument prepared by Ms Jones on behalf of the Appellant.  It thus came to our attention this morning that the allegations of bias were not being pursued.  We will return to that matter below.

5	In fact Ms Crasnow pursued two grounds of appeal only.  First, that the Employment Tribunal refused to admit additional witness evidence, which could have had a material bearing on the Tribunal’s conclusions.  It seems that two short witness statements were contained within the bundle of documents produced for the hearing and not exchanged in the usual way prior to the hearing.  The clerk made no note of these witnesses as having attended to give evidence at the beginning of the hearing.  The Chairman, when he was duly alerted to the statements, could see nothing in them (and we can see for ourselves that they lacked precision as to dates) which would assist in the resolution of the principal substantive issues that the Tribunal had to resolve, since neither of the two witnesses were involved in the decision-making processes which affected Mr Butler.  Although Ms Crasnow maintains that the evidence went towards establishing when the title of Team Leader was first indicated to Mr Butler, that was in any event only one part of the overall treatment of Mr Butler by the employer which caused the Tribunal to conclude that he had been unfairly dismissed.  We can see no grounds for concluding that there is an arguable case for saying that the overall interests of justice were affected by the Tribunal’s decision not to allow the additional evidence to be presented, and accordingly this ground of appeal is dismissed at this stage.

6	The second ground of appeal is that the Tribunal made an error of law in finding that the employer had committed a breach of contract by not paying sick pay to Mr Butler when he was absent sick.  Ms Crasnow prays in aid cases where there is ambiguity in the terms of a contract, but there is no ambiguity here.  It is true that the contract indicated that paying sick pay over and above statutory sick pay was discretionary, but it is well known that any such discretion has to be exercised reasonably and that custom and practice can be called into aid.  That the Tribunal did on the evidence available to them.  We can find nothing to suggest that there is an arguable case for saying that they were not entitled to adopt such an approach.  Consequently, that ground of appeal is also dismissed at this stage.

7	Returning now to the allegations of bias, withdrawn at this very late stage, we are concerned at what on the papers appear as a spurious attempt to suggest that the Chairman of the Tribunal was biased against Jews.  The directions from this Tribunal put the Appellant on notice that allegations of bias, if unsubstantiated might result in an award of costs.  To make such grave allegations and then withdraw them at the last moment must involve the other side’s representatives in preparing a defence to them, even though this is a preliminary hearing.  What has happened is not something which can be passed over lightly.  In the circumstances, such conduct deserves an award of costs in favour of Mr Butler against the Appellant.  We fix that at the modest sum of £100.