Appeal No. EAT/727/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 14 June 1994

	Before

	THE HONOURABLE MR JUSTICE MORISON

	MR K M HACK JP

	MRS P TURNER OBE

BEECH PUBLISHING HOUSE	APPELLANTS

MR R W PORTER	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	DR J BATTY
(PARTNER)

	

		MR JUSTICE MORISON:		By a decision entered in the Register on July 30 1993, an Industrial Tribunal held at Southampton unanimously decided that Mr Porter, who we shall call the employee, had been unfairly dismissed from his employment with Beech Publishing House, a partnership who we shall call the employers.  

	By a Notice of Appeal accompanied by a document headed `Supplementary Statement On Appeal' and subsequently complimented by an affidavit sworn by Joseph Batty, one of the partners, the employers seek to appeal against that decision.  This Appeal Tribunal only has jurisdiction to consider appeals which raise arguable points of law.  The purpose of this hearing has been to decide whether the points made by the employers raise arguable points of law, which are fit to go before the Employment Appeal Tribunal for a full hearing.  This Tribunal has no power to re-open the facts of a dispute, or to re-weigh those matters which Parliament has entrusted the Industrial Tribunal to balance.  Thus, this Tribunal cannot assess where the truth lies, where the facts are in dispute, that is a matter solely for the Industrial Tribunal. 

	The facts which we take from the decision and which are relevant to this appeal may be shortly stated.  The employers print and publish books.  The employee, who was not a fully trained printer, had joined them in October 1987 and was employed to operate two machines, a folding machine and a printing machine.  We can say, in parenthesis, that on an earlier occasion the Industrial Tribunal had determined, contrary to the employers assertions, that the employee had the requisite period of continuous employment with the employers, such as to give the Tribunal jurisdiction to hear his complaint of unfair dismissal.

	In 1992 the firm was apparently in financial difficulties and following the dishonouring of a number of his pay cheques, the employee was laid off in August 1992, for what was anticipated to be a period of about 8 weeks; I take that from paragraphs 4(a) to 4(f) of the Tribunal decision.  It was made clear to him that, all being well, he would be resuming within approximately 8 weeks.  He applied for benefit during the period of lay off and in response to the usual enquiry the employers informed the Benefit Agency that the lay off was due to persistent machine breakdown and unavailability of work, but not due to the fault of the employee in any way: that is paragraphs 4(h) to (i).

	The employee's Solicitors wrote on October 2 1992 asking whether the employee's employment was to be terminated and if not, for a firm date for his return to work.  By letter dated October 14 the employers said that it had been discovered that the printing machine had been damaged: that two weeks' notice of termination was being given and the letter continued:

		"This is regretted, but it has now become clear we cannot afford his services in the near future.  In fact, when the machine is repaired, we will look for a part-time jobbing printer who also works for others."

	The employee went to the Jobcentre looking for employment and discovered that the employers were advertising for a printer.  He then presented an IT1 to the Industrial Tribunal on October 30 1992 alleging unfair dismissal.  The substance of his complaint was stated to be, and I quote now from the IT1:

		"There was no complaint about the standard of my work and I consider I have been unfairly dismissed as others who joined the firm after me remain in employment."

	In the light of the letter of dismissal, it is clear that the IT1 was presented on the basis that the employers would be alleging that there was no more need for them to employ a full time printer and that the true reason for the dismissal was redundancy.  Hence the reference to others more recently employed being kept on.  

	In their IT3, which was submitted to the Industrial Tribunal on November 24 1992, the employers took the point about the lack of qualifying service and then said that the employee was unqualified and failed to achieve an acceptable level of efficiency and that he had mishandled the machine by attempting amateur mechanics on it.  By a facsimile of the same date, the grounds were amplified and it was said that the employee had been given a number of warnings about his lack of efficiency; that he had damaged the employers business by his lack of production and tampering with the machine.  

	The matter came on for hearing on July 20 when Dr Batty represented the employers and gave evidence on their behalf, and the employee who also gave evidence was represented by a Solicitor.  The first question which the Industrial Tribunal had to determine was what was the reason for the dismissal.  If the employers had been advertising for a replacement of the employee in the post that the employee had previously held, then there could be no question of redundancy.  The other two potential reasons were, capability and conduct.  Having heard the evidence, and recited it, the Industrial Tribunal concluded that on Dr Batty's own evidence it was a mixture of capability and conduct, which are both reasons falling within Section 57(2) of the Act; that is paragraphs 4(u) and 5.

	In the light of that reason, or those reasons, the Industrial Tribunal then had to consider whether the dismissal was fair in accordance with sub-Section 3 of that Section.  Sensibly in the circumstances we think, the Industrial Tribunal decided to examine the fairness of the decision on both possible bases and they first considered capability.  They considered that if there had been a capability problem, it would have surfaced long before since the employee had been employed for some 5 years in all.  They believed the employee's complaints about the inadequacies of the machine.  They said there was no evidence upon which a reasonable employer could conclude that the employee was failing in his capability.  On the evidence they concluded that they were not satisfied that the employee had been given any warnings, formal or informal; that is paragraph 6.

	The Industrial Tribunal then turned to the question of conduct.  They indicated that they found the whole of Dr Batty's evidence and the documents he produced totally unacceptable, unsatisfactory and contradictory on the subject of damage to the machine and they concluded:

		"We are still not clear from Dr Batty's confusing evidence, and the engineer's report, whether the machine was, in fact, repaired or whether it was not.  It matters not.  All we need say is that the conduct alleged was never put to the applicant, there was no proper investigation and we have no clear evidence of what was wrong."

	They expressed their conclusion that no reasonable employer would have dismissed by reason of conduct or capability, taking into account the fact that they were dealing with a small business.  They then assessed quantum and there is no appeal on that issue.  It is apparent from the papers which we have read, and from hearing Dr Batty's oral submissions that he has been labouring under a number of misapprehensions.  First, he says, that he went to the Industrial Tribunal prepared only to deal with the complaint as put forward in the IT1 and the Industrial Tribunal failed to deal with it.  In truth, the position is that the burden of proving what was the reason for the dismissal, rested on the employer.  It was not a question of looking to see what the employee had said in his IT1 and then rebutting it.  Second, he says that there was significance to be attached to the fact that a trade union official was allowed in the hearing, and I quote:

		"... yet we were not informed and only discovered his identity afterwards."

	Dr Batty appears to be ignorant of the fact that Industrial Tribunal proceedings are held in public.  Thirdly, Dr Batty seems to complain of evidence being given which was not mentioned in the list of documents.  It seems to us he simply fails to understand how the judicial process works.  

	We turn, therefore, to the points which Dr Batty would wish to argue at a full appeal.  First, he says that the Rules of Discovery were not correctly applied in that the employee was allowed to produce coloured sheets to demonstrate his capability, whereas he was not allowed to produce a specimen statement of terms and conditions of employment.  It is not, as we understand it, his evidence that the employee had been given a statement of terms and conditions of employment and the Industrial Tribunal so found at paragraph 4(n), and we fail to see how the existence of such terms bear on the findings which are crucial to the decision.  The Industrial Tribunal did not rely on the absence of such document as making the decision to dismiss unfair; there is nothing in that point.

	Secondly, it is said that the Chairman was biased.  We have to say that there appears to be an increasing tendency for unsuccessful litigants, when they have no better points, to allege bias.  It is, in our view, an extremely serious allegation to make, and should never be made unless there are some substantial grounds for it.  We can see no grounds in this case whatsoever.  The purported grounds are set out in what purports to be an affidavit sworn by Dr Batty.  His grounds for bias are simply his complaints allegedly giving rise to this appeal.  He complains that the Industrial Tribunal was not even handed in the way it admitted documentary material, that the Industrial Tribunal disregarded what he chooses to call the previous character and behaviour of the complainant who is a habitual complainer and then makes a number of assertions which he made in the Industrial Tribunal and which were rejected.  

	This morning he added a matter which had not been alleged before, namely that this particular Chairman had been the Chairman of a Tribunal in which Dr Batty and his wife had been complainants against a former Company of theirs, called Fanciers Suppliers Ltd, some six to seven years ago.  I understand from what Dr Batty told us that there was no appeal against that decision, although he says that he wrote a letter of complaint about the way in which the Chairman allegedly behaved on that occasion.  

	He initially told us that the complaint had been sent to the Employment Appeal Tribunal but subsequently told us that he thought that it probably had been sent to the President of the Industrial Tribunals, but he seemed unclear as to when it was sent, or to whom it was sent.  It seems to us that if Dr Batty had believed that the Chairman of this Tribunal was discriminating against him and acting unfairly towards because he had had previous experience of him, then surely he would have raised it on an earlier occasion, if not with the Chairman himself before the hearing took place. 

	We reject Dr Batty's contention that he did not know that he was able to raise this matter.  This seems to us to be manifest nonsense.  If Dr Batty had been taken by surprise by any evidence at the Tribunal, and was thereby prejudiced, he could have asked for an adjournment, he did not.  Nor did he make any complaint about the matter at the hearing.  The matters contained in his affidavit demonstrate that Dr Batty is prepared to make wild and unpleasant allegations, both about the Applicant and the Chairman, without justification.  The fact that the employee was a complainer, if established, may or may not have been relevant.  The Tribunal cannot now be accused of bias on a matter that was never previously raised.  If it was raised, we doubt whether it would have been of any assistance to the Industrial Tribunal whose decision was not based on personal shortcomings of the two protagonists but on the relevant matters to which we have referred.  As for the Chairman, I have to say that it is unacceptable to this Tribunal that a Chairman of an Industrial Tribunal should be abused by litigants who simply have no real point to make.  

	Dr Batty alleges that the Applicant has distorted the truth.  The Industrial Tribunal, who had the benefit of seeing and hearing the Applicant and Dr Batty give evidence, preferred to accept the Applicant's evidence and to reject as unreliable the evidence of Dr Batty.  Dr Batty may not like that conclusion but it is one which the Industrial Tribunal were entitled to reach and does not form any foundation for an allegation of bias against the Chairman of the Industrial Tribunal.  It is to be noted that it was a unanimous decision and the Chairman was merely one of a team of three who had to investigate the complaint of unfair dismissal.

	Accordingly, it seems to us that there is no arguable point of law in this appeal, that it is without merit and should be dismissed at this stage and accordingly we order it to be dismissed.