Appeal No. UKEATS/0052/06/MT

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 8 August 2007

Before
THE HONOURABLE LADY SMITH
MISS J GASKELL
MRS A HIBBERD

MR G DOYLE	APPELLANT

ARGYLL AND BUTE COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR G DOYLE
The Appellant in person	
For the Respondent	MR P ROBERTSON
Solicitor,
Argyll & Bute Council Corporate & Legal Services
Lochgilphead
Argyll
PA31 8RT	

SUMMARY

PRACTICE AND PROCEDURE

Striking-out/dismissal

Claim for unfair constructive dismissal by ferryman employed by a local authority. The Employment Tribunal notified him in a standard letter that a hearing had been fixed for the full disposal of his case. The letter informed him, in the usual way, that he was responsible for ensuring that all witnesses he wished to call would be available at the hearing.  The Tribunal decided, rather than proceed to an evidential hearing, to question the claimant about his case. Having considered his answers and having considered his productions, they pronounced an order refusing the claimant’s application. The respondents had made no motion. He sought a review, which was refused. He was successful on appeal. Rule 27(2) of the Employment Tribunal (Constitution and Rules of Procedure) Rules 2004 afforded the claimant the right to give evidence, to call witnesses and to question witnesses and he should have, but had not, been afforded that right. 

THE HONOURABLE LADY SMITH

Introduction 
1.	This is an appeal from a judgment of the Employment Tribunal sitting at Glasgow, Chairman Mr HJ Murphy, dated 28 March 2006 in which the claimant’s claim was refused. No reasons were given at the time. The claimant requested written reasons for the judgment and such reasons were issued and registered on 30 May 2006.  The issue raised on appeal concerns the procedure adopted by the Tribunal at the hearing which resulted in the foregoing judgment. That hearing took place on 20 March 2006. 

2.	The claimant represented himself before the Tribunal and before us. The respondents were represented by Mr Peter Robertson, solicitor, before the Tribunal and before us. 

3.	This judgment contains the unanimous views of the members of this Tribunal. 

Background 
4.	The appellant, to whom we will refer as claimant, was employed by the respondents as a ferryman working on their route between the Island of Easdale and Ellenbeich, between February 2000 and 4 November 2005, when he resigned. He resigned against a background of various complaints regarding the respondents’ conduct and what were seen by him as significant failures on their part.   Since this appeal focuses solely on matters of procedure, we do not propose to rehearse what the Tribunal appear to have understood to be the details of those complaints and failures.  It is sufficient for present purpose to note that the claimant’s position appears to be that over a period time up to and including about August 2005, the respondents failed in their obligations to him in various respects ranging from their not supporting him by taking out interdict proceedings against a threatening passenger to their seeking to insist that he operate the ferry at 11pm on a Saturday when he was not, in his view, contractually bound to do so. He resigned, he asserts, on account of those failings, on 4 November 2005.  In answer to a question put by the Tribunal as to why he did not resign sooner, he said that he had wished to give the respondents time to find a replacement for him. Some mention also appears to have been made of the need for him find alternative employment and accommodation as he lived in a tied house. 

5.	In terms of a form ET1 dated 28 November 2005, the claimant lodged an application for compensation for unfair constructive dismissal. By notice dated 6 February 2006, the Employment Tribunal at Glasgow intimated to him, in a standard letter, a notice which included the following terms:
			“	NOTICE OF HEARING 
			Employment Tribunals Rules of Procedure
The claim will be heard by an Employment Tribunal at COET(Scotland) , 3rd Floor, The Eagle Building , Bothwell St., Glasgow , G2 7TS on Monday 20th & Tuesday 21st March 2006 at 10.00am  or as soon thereafter on that day as the Tribunal can hear it.

1.	It has been given 2 days for its full disposal, including remedy of appropriate. If you consider that the hearing is likely to last more than 2 days you must inform the Tribunal office within 14 days after the date of this notice.
2.	You are responsible for ensuring that all the witnesses you may wish to call can attend on the hearing date and know the place and time of the hearing.
3.	The case will be heard by a full tribunal and therefore 5 copies of the agreed bundle of documents ( of if the tribunal did not Order that single bundle be agree, 5 copies of the documents on which you intend to rely) will be required for the hearing………….”

6.	No evidence was led at the hearing on 20 March 2006.  The only explanation given by the Tribunal as to how that came about is given at paragraph 3 of the written “Reasons”:
“At the commencement of proceedings on 20 March 2006 the Tribunal, bearing in mind the overriding objective set out in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, and in exercise of the powers contained in Rules 4(2) and (3) of the Employment Tribunal Rules of Procedure , attempted to clarify the basis of the claimant’s case. In the course of the discussion, it became clear that certain facts (hereinafter noted) were not in dispute. In addition, the Tribunal assumed certain statements made by the claimant to be true, though disputed. The Tribunal also noted that both sides lodged productions to which reference will be made.” 

7.	No evidence was heard. The Tribunal’s judgment was:
“It was the unanimous judgment of the Tribunal that the application be refused.” 

8. 	It is not clear what aspect of the overriding objective the Tribunal had in mind. In providing that the overriding objective is to deal with cases justly, paragraph 3(2) of the regulations provides that dealing with a case justly includes certain distinct concepts:
“(a) ensuring that parties are on an equal footing;
 (b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;
 (c ) ensuring that it is dealt with expeditiously and fairly ; and 
 (d) saving expense.”

9.	It would have been helpful if the Tribunal had indicated which, if any, of these concepts it had in mind when referring to the overriding objective. It is unfortunate that it does not. 
 
10.	Further, the reference to rules 4(2) and (3) does not make sense, those being rules which set out requirements with which a respondent must comply when responding to a claim. We wonder if the Tribunal meant to refer to rules 14(2) and (3)? Those rules, which need to be read together with rule 14(1) and rules 26 and 27 provide:
“14 (1) A chairman or a tribunal (depending on the relevant rule) may hold the following types of hearing –
(a)	a case management discussion under rule 17 ;
(b)	a pre- hearing review under rule 18 ;
(c)	a Hearing under rule 26; or
(d)	a review hearing under rule 33 or 36. 
(2) So far as it appears appropriate to do so, the chairman or tribunal shall seek to avoid formality in his or its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts.
(3) the chairman or tribunal (as the case may be) shall make such enquiries of persons appearing before him or it and of witnesses as he or it considers appropriate and shall otherwise conduct the hearing in such manner as he or it considers most appropriate for the clarification of the issues and generally for the just handling of the proceedings.
………………..
26(1) A Hearing is held for the purpose of determining outstanding procedural or substantive issues or disposing of the proceedings. In any proceedings there may be more than one Hearing and there may difference categories of Hearing, such as a Hearing on liability, remedies, costs (in Scotland expenses) or preparation time.
……………..
27………………..
(2) Subject to rule 14(3), at the Hearing a party shall be entitled to give evidence, to call witnesses, to question witnesses and to address the tribunal .” 

11.	The hearing on 20 March 2006 was, manifestly, not a pre hearing review under rule 18, in terms of which a chairman or tribunal has the power to pronounce an order striking out a claim on the basis that it has no reasonable prospect of success (rule 18(7)(b)). If a hearing which had clearly been fixed as a full hearing on the merits of the case , and on remedy in the event of success on the merits, had somehow become a pre–hearing review, we would have expected the tribunal to state that and explain how that had happened. The fact that they have not done so reinforces our view that the hearing on 20 March was a rule 26 “Hearing”.  

12.	The tribunal do not, in their written reasons make any findings of fact. They could not, of course, properly do so in the absence of evidence.  They refer to the “background” but we do not read what follows as containing any findings of fact save perhaps for some of what is stated in paragraph 69 where they determine the clearly disputed issue as to whether or not the claimant was contractually bound to operate the 11pm ferry by expressing themselves “satisfied” that :
“it was the intention of the parties that the claimant would work on Saturday evenings , if rostered to do so, and if the ferry was booked in accordance with the published conditions …” .

13.	The Tribunal do not, however, explain how they felt able to make that finding without having heard evidence or parties having agreed the relevant facts. 

14.	Ultimately, the tribunal plainly did not confine itself to seeking to clarify issues. What they appear to have done is to approach the claimant’s case as though they were responding to an argument that it was irrelevant and could not, on any view, succeed, not that that was an argument that was in fact advanced before them. 
The Review Application 
15.	The claimant applied for a review. His application for review included the following paragraphs:
“ ..I could only prove a course of conduct against me if I had been allowed my witnesses.”
“..I am requesting a review of this case. As I was told to expect a full hearing and I was not informed timeously that it would not be so. I can accept that my case may be refused but I did have the right to put my case properly with witnesses”.

16.	It was rejected by the Chairman, sitting alone, on the basis that it had no reasonable prospect of success, in an order dated 19 July 2006.  At paragraphs 5 and 6, he states:
“5.  I do not accept that the claimant was in any way denied an opportunity of presenting his case. Indeed, he was repeatedly asked if he had anything to add in the course of the hearing, and the Tribunal reached its decision by assuming his assertions to be true (an assumption highly favourable to the claimant).

6. In any event, the claimant’s application for review does not address the fundamental issue in this case namely whether the respondent were in fundamental breach of contract with him and, in my opinion, he has not outlined any set of facts capable of amounting to such a fundamental breach that has not been accepted by him” 

17.	We would observe that in making those comments the Chairman appears to have overlooked the fact that the Tribunal, far from assuming the claimant’s assertions in respect of the question of whether or not he was contractually bound to operate the 11pm ferry on a Saturday were correct, found against him on that issue. 

The Appeal 
18.	The claimant appealed to this Tribunal. His notice of appeal is in short compass. It is in the form of a letter in the following terms:
“Case No. S108055/05 Notice of Appeal 

Dear Sir,

Further to the above case.
I have enclosed the Notice of Hearing to expand on point 6 on the Notice of Appeal FORM 1.  I was called to a Full Hearing and instructed to have all productions and witnesses in readiness. I was not informed of any preliminary hearing or indeed an informal discussion which was what apparently it was. I was informed of this after two hours just before we stopped for lunch.
I came prepared to state my case before a Tribunal. I did not get a hearing which is wrong in law and in contravention of Clause 6 of European Convention on Human Rights.

Yours sincerely 
‘George Doyle’” 

19	Mr Doyle appeared before us and made submissions in support of his appeal.  He did so clearly and respectfully, in a well organised fashion. He referred to the Notice of Hearing which we have set out above. He thought he was going to get a Full Hearing. The Chairman did not mention that he was going to hold a preliminary hearing. The claimant had with him the witnesses in respect of whom he had been granted witness orders. He had, in February 2006, been refused witness orders for two witnesses on the grounds that they were not relevant to his case. He took from that that the Tribunal accepted that the witnesses for whom he had been able to obtain orders were relevant.  The Chairman had, however, said that they were going to have an informal discussion. That discussion proceeded at some length. At one point the claimant said that he could call a witness to support him on a point but he was not allowed to do so. It got to the point that he did not know what was happening and felt that he should just give up as he was not going to get a hearing. He would just go home and appeal.

20.	The claimant was aware that the respondents also had witnesses with them that day. 

21.	Overall, the claimant felt thrown by the procedure adopted by the Tribunal. He explained that it was as though they were saying to him “by the way, the race hasn’t actually started yet” when he had thought that it had.  He fully accepted that his claim might not be successful but he felt that he at least had the right to put his case before the Tribunal and that had not happened.  A colleague who would have given evidence would, for instance, have explained how the respondents had been marginalising him prior to his resignation. 

22.	The claimant outlined some of the factual issues that are referred to by the Tribunal and appear in his application for review.  

23.	He also referred to the right to a fair hearing contained in Article 6 of ECHR.

24.	Mr Robertson stated that he did not dispute the claimant’s account of what had happened at the hearing. He was himself surprised at what happened. He had made no submissions. He had made no motion. He had not sought any order. He had brought three witnesses and he would almost certainly have led them if the claimant and his witnesses had given evidence. 

25.	Mr Robertson submitted that it was, however, difficult to see how any witnesses would have added to the claimant’s case. The Tribunal had carried out a lengthy discourse with the claimant and decided that even if everything that he said was accepted, there was no ground in law for accepting that he had been unfairly constructively dismissed.  They had reached a decision that was open to them on the facts as found by them.

Discussion 
26.	On 20 March 2006, what came before the Tribunal was a Hearing under Rule 26 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. That being so, the Tribunal required to be mindful of the rights conferred on the claimant under and in terms of rule 27. Those include the right to give evidence, call witnesses, question witnesses and address the Tribunal.  We do not read the words:  “Subject to rule 14(3)” that appear in rule 27(2) as entitling the Tribunal to prevent a claimant from giving any evidence at a Rule 26 Hearing or from calling any witnesses.  Nor do they enable a Tribunal to convert a Rule 26 Hearing fixed for hearing evidence and disposing of the case, as the hearing on 20 March 2006 clearly had been, into a pre–hearing review. Rule 14(3) confirms the Tribunal’s right to ask questions of parties, to ask questions of witnesses and generally to control and manage the hearing appropriately, in the light of the issues in the case.  It must, however, do so bearing in mind the parties’ right to a fair hearing under and in terms of Article 6 of the European Convention on Human Rights. That right normally involves giving each party the right to present its case through evidence and to cross examine the other side’s witnesses.

27.	Looking at matters from the perspective of the claimant, he had been granted witness orders for some witnesses, refused such orders for two witnesses on the basis that they would not be relevant to his case and had been sent a notice making it clear to him that a hearing had been fixed for evidence to be heard and the case finally determined. He was entitled, in our view, to approach the hearing with the expectation that he would be entitled to give evidence on oath, lead evidence from his witnesses, cross examine any witnesses led by the respondents (and it is highly likely, given what Mr Robertson said, that witnesses would have been led for the respondents) and thereafter address the Tribunal in the light of the evidence.  We are also satisfied that he was entitled to approach the hearing on the basis that the Tribunal had accepted that his witnesses had, prima facie, relevant evidence to give; otherwise he could have expected to have had his application for witness orders for them to have been refused in the same way that the Tribunal had refused his other applications. 

28.	In the event the claimant was, as we have explained, sorely disappointed. Far from matters living up to his expectations they took a quite different turn. Were the Tribunal entitled to proceed as it did? We think not. 

29.	Not only did the Tribunal, by the procedure that it adopted, deprive the claimant of the rights to which we have referred, it went further.  It purported to determine a significant disputed issue, namely, whether the claimant was contractually bound to operate the 11pm ferry on a Saturday, by reaching a conclusion as to the respondents’ purpose when they employed the claimant and as to parties’ intentions regarding the matter without any evidence; no witnesses were led nor, it would seem, was there any agreement as to which documents, if any, could be relied on as evidence without having to be spoken to by witnesses. 

30.	We do not accept Mr Robertson’s argument that it was difficult to see what witnesses could have added and that the Tribunal had reached a decision that was open to them on the facts found. Firstly, we do not see that it could be said, in advance, that nothing that the claimant would have said on oath or that would have been said by witnesses could have assisted his case. Secondly, the Tribunal did not, apart from in respect of the contractual issue to which we have referred, make any findings in fact. It cannot, accordingly, be said that they were entitled to decide as they did on the facts found by them. 

31.	Fundamentally though, it is clear to us that the claimant was deprived of a hearing of the sort that he justifiably thought that he was going to be afforded. That is the thrust of his sole ground of appeal and we consider that it is well founded. The Tribunal’s disposal of the case cannot stand and we will pronounce an order upholding the appeal. We will also remit the case for a rehearing. It seems to us to be appropriate, applying the principles in Sinclair Roche & Temperley v Heard [2004] IRLR 763 that, given the wholly flawed approach of the Tribunal and the extent to which it has formed a view without having heard evidence, that it is not appropriate to send it back to the same Tribunal. A fresh Tribunal will require to be constituted.