Appeal No. UKEAT/0109/04/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 April 2004

Before
HIS HONOUR JUDGE PETER CLARK
MRS R CHAPMAN
DR K MOHANTY JP

MR M E CHOUDHURY	APPELLANT

INKFISH CALL CENTRES	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR M E CHOUDHURY
THE APPLICANT IN PERSON	
For the Respondent	MISS S PALMER
(Of Counsel)
Instructed by:
Messrs Roger Vincent Associates
Solicitors
19 Claremont Road
Claygate
Esher
Surrey  KT10 OPL

SUMMARY

Substantive hearing.  ET read the papers.  Chairman gave strong indication to Applicant his case was weak (see Jiminez v London Borough of Southwark).  Claim then struck out under r 15(2)(c) (misconceived).  Appeal dismissed.

HIS HONOUR JUDGE PETER CLARK

1.	This is an appeal by Mr Choudhury, the Applicant before the Reading Employment Tribunal, against the decision of that Employment Tribunal, chaired by Mrs J Hill and promulgated with Extended Reasons on 25 July 2003, striking out his claim of unfair dismissal
brought against his former employer, the Respondent Inkfish Call Centres Ltd.  His complaint was struck out under Rule 15(2)(c) of the Employment Tribunal Rules of Procedure 2001 on the ground that it was misconceived, that is to say it had no reasonable prospect of success.

2.	The circumstances leading to the Employment Tribunal’s order were these.  The Applicant was initially engaged by the Respondent through an employment agency in August 2000.  He became their employee in November 2000.  It is common ground that he was dismissed on 24 January 2003 for alleged misconduct.

3.	The misconduct found by the Respondent involved complaints from 4 fellow employees concerning his behaviour towards them.  Three of the complainants were female and a charge of insubordination was made in relation to a line manager Rachelle Wishart.

4.	An investigatory meeting, conducted by the Call Centre Manager, Miss Wishart, together with the Applicant’s team leader Paul Page, took place on 15 January 2003.  At that meeting, according to the Respondent’s note, the Applicant behaved in an abusive manner towards Miss Wishart.  He was then suspended pending a disciplinary hearing which took place before the Account Director, Ben Dale-Gough.  Following that meeting Mr Dale-Gough decided to dismiss the Applicant for “a serious breach of discipline - verbal abuse and insubordination towards your line manager, team members.”

5.	He was told of his right of appeal.  He exercised that right.  His appeal was heard by a Board Director, Ian Bateman, together with the Head of Human Resources, Ruth Robinson on 14 February 2003.  During that appeal hearing he was found by the Respondent to have acted aggressively.  The appeal was dismissed.

6.	At the start of the hearing before Mrs Hill’s Tribunal the Chairman indicated that the panel would read the parties’ witness statements and a bundle of documents which included transcripts of the investigatory and disciplinary meetings.

7.	The Employment Tribunal record, at paragraph 5 of their reasons, that after reading the papers the Employment Tribunal, with the agreement of the parties, would give a preliminary view of the merits of the case.  Pausing there, an issue has arisen in this appeal as to whether the Applicant consented to that course.  In his affidavit sworn in these appeal proceedings on 15 December 2003 he disputes that suggestion.  In response, by letter dated 22 December 2003, the Chairman indicates that whilst she has no independent recollection of what was said on the question of agreement at the hearing, held on 22 July 2003, she relies on what appears in the Employment Tribunal’s reasons, dictated by her on that day.

8.	We have also been provided with Ms Palmer’s note of what was said at the hearing on this matter, she having appeared below as Counsel for the Respondent as she does today.  That note does not specifically mention the parties agreeing to the course proposed by the Chairman.  What is recorded is that the Employment Tribunal spent just over 1 hour reading the papers and then returned at 11.30 am, whereupon the Chairman said:

“We are going to give a preliminary indication.  It is a virtually impossible task for the Applicant to succeed in this claim.”

9.	Having summarised the effect of the Respondent’s evidence the Chairman then gave the Applicant a costs warning if he continued and also raised the alternative prospect of the case being struck out as having no reasonable prospect of success.

10.	Reading on in Counsel’s note it appears that the Chairman expressed the preliminary view of the Employment Tribunal in fairly trenchant terms.  She told the Applicant that the panel felt there was no chance of his succeeding; the Applicant indicated that he felt he had no chance with this particular tribunal.  He wished to appeal.  Later this exchange took place:

“The Applicant.  I get the feeling you are saying, I should give up.

Chairman.  If I was advising you, I would say that:”
 
11.	He raised the question of procedural defects to which the Chairman responded:

“No, the process was fine.  It was a conclusion which could be reached on the evidence.”

Pressed as to whether he wished to proceed, having again been warned as to the risk of a costs award if he was unsuccessful, the Applicant asked:

“Do you feel the case has no merit?

The Chairman replied:

“None whatsoever on paper”

12.	The Applicant equivocated as to whether or not he wished to proceed, whereupon the Chairman said that the Employment Tribunal would treat the case as though he wanted to go ahead.  Miss Palmer then applied for a strike-out Order which was granted.  Following some discouragement from the Chairman Miss Palmer did not pursue an application for costs.

13.	Against that background we now turn to the Applicant’s grounds of appeal.  He raises 2 points:

(1)	Procedural irregularity

We return to the issue as to whether the Chairman obtained the consent of the parties to the tribunal giving their preliminary view of the case after reading the papers.  In our judgment the question of consent is immaterial.  It is always open to the Employment Tribunal to express a preliminary view provided it is just that, a view which may change as the case unfolds, not a premature concluded view (cf Peter Simper & Co Ltd v Cooke [1986] IRLR 19).

14.	In argument before us Mr Choudhury further disputed that the Chairman mentioned the word ‘preliminary’ before expressing the Employment Tribunal’s view.  We are satisfied on balance on the material before us that that qualification was used, as appears from the Employment Tribunal’s reasons; the Chairman’s letter of 22 December 2003 and the note produced by Miss Palmer.

15.	However, the real question, we think, is one articulated by Mr Choudhury in argument, having been referred by the bench to the recent Court of Appeal guidance in Jiminez v London Borough of Southwark [2003] IRLR 477, namely that even if the expression a preliminary view was used, in fact the Employment Tribunal had so clearly made up their collective minds before hearing any evidence that they gave the appearance of bias.

16.	We have considered this submission in this case with some anxiety, given the trenchant way in which the Chairman expressed herself, a flavour of which we have earlier set out based on Miss Palmer’s Note.  We bear in mind particularly Peter Gibson LJ’s remarks at paragraph 40 of the judgment (he having also presided in the EAT case of Peter Simper).  He said this:

“40	In conclusion, I would have a word of caution for tribunals who choose to indicate their thinking before the hearing is concluded.  As can be seen from this case, it is easy for this to be misunderstood, particularly if the views are expressed trenchantly.  It is always good practice to leave the parties in no doubt that such expressions of view are only provisional and that the tribunal remain open to persuasion.”

He then allowed the appeal against the order of the EAT setting aside the original Employment Tribunal order.  With that judgment of Clarke LJ and Richards J agreed.  

17.	On the particular facts of the present case it is a value judgment for us to make as to whether the Chairman’s approach crossed the line so as to give the appearance of bias in the sense of the premature expression of a concluded view or the manifestation of a closed mind.  The view was expressed to be a preliminary one formed on the papers and no more.  In these circumstances we are not satisfied that this is a case in which an appearance of bias as explained in the cases referred to in Peter Gibson LJ’s judgment in Jiminez has been crossed and accordingly we reject the first ground of appeal.  
 
(2)	Representation
18.	As to the actual decision to strike out under Rule 15(2)(c), the sole point taken by Mr Choudhury in relation to that focuses on the Employment Tribunal’s finding at paragraph 10 of their Extended Reasons, relating to his complaint of procedural unfairness in the dismissal, where they say this:

“The only matter which the applicant could argue was the failure of the respondent to ensure he had a representative at the disciplinary hearing.  The Tribunal noted that he was advised in writing in advance of the hearing of his right to have a representative, that he made arrangements for a representative and that the representative pulled out on the basis that he was one of the key witnesses to the alleged misconduct.  The applicant did not ask for either an alternative representative or an adjournment of the hearing to obtain an alternative for the disciplinary hearing.  At the appeal stage the applicant was again told in writing that he could have a representative but did not take one with him.  It is the responsibility of the employee to provide their own representative not that of the employer.  Furthermore, if there was any defect in the process at the disciplinary stage, that was corrected by offering the opportunity again at the appeal stage.”
 
19.	Mr Choudhury has taken us to the detail of how his representative came to pull out of attending the disciplinary hearing held on 24 January.  His chosen representative was Paul Page, his team leader and he believed a friend, who had attended the investigatory meeting with Ms Wishart on 15 January.  One of the allegations against the Applicant was, we are satisfied, insubordination towards Ms Wishart at that meeting in the form of his behaviour towards her.  Mr Page had provided a statement, in the form of an e-mail to Ms Wishart dated 20 January 2003, in which he expressed the view that throughout the 15 January meeting the Applicant was acting in a very threatening manner towards her.  In these circumstances he was not thought to be an appropriate representative for the Applicant and withdrew informing the Applicant of his intention on the evening before the disciplinary hearing held at 2.45 pm on 24 January.  As the Employment Tribunal observe, the Applicant did not seek an alternative representative that morning nor an adjournment of the hearing before Mr Dale-Gough.  Subsequently, he was advised of his right to have a representative at the appeal hearing, held on 14 February, but did not arrange for one.  We do not accept Mr Choudhury’s submission that in these circumstances it was for the employer to arrange for a person to represent him on either occasion.  It seems to us that this point is not sufficient, of itself, to undermine the Employment Tribunal’s conclusion, having considered the correct approach to misconduct dismissals in law (see for example Foley v The Post Office [2000] ICR 1283) and considered the detailed paper evidence, that this claim did not enjoy a reasonable prospect of success, a view which they were entitled to reach at any stage of the proceedings under Rule 15(2)(c), including the stage reached in the present case.

20.	In these circumstances and for these reasons we shall dismiss this appeal.