Appeal No. EAT/148/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 5 May 1992

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MR A FERRY MBE

	MR J A SCOULLER

OXFORD POLYTECHNIC	APPELLANTS

MR A HALPIN	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR PHILIP SALES
	(Of Counsel)
Messrs Norton Rose
Kempson House
PO Box 570
Camomile Street
LONDON EC3A 7AN

For the Respondent	IN PERSON

	MR JUSTICE WOOD (PRESIDENT):  This is an Appeal by the Oxford Polytechnic from a Decision of an Industrial Tribunal sitting at Reading on 4 February 1992 sent to the parties on 24 February, wherein the Respondents', the Polytechnic's, application to adjourn the Industrial Tribunal hearing until after the hearing of defamation action in the High Court was refused.  These cases are always causing problems.  They are difficult and this case is no exception.

	We are grateful to the Learned Chairman for the way he has set out the various authorities, but the approach can now be summarised from a decision in this Court in BOWATER PLC v CHARLWOOD [1991] ICA 798 where I was sitting with two very experienced Industrial Lay Members and the principle which we there set out at page 804(D), the correct basis for the question to ask ourselves is:
"In which court is this action most conveniently and appropriately to be tried bearing in mind all the surrounding circumstances including the complexity of the issue, the amount involved, the technicality of the evidence, and the appropriateness of the procedures?"  These factors and many others have already been considered in such cases as First Castle Electronics Ltd v West [1989] ICR 72 and Warnock v Scarborough Football Club [1989] ICR 489."
	We do not think it is necessary in this Judgment to review all those various factors but one must look at the detail of each individual case to decide where the case is most conveniently to be tried.

	The Applicant, Mr Halpin, was employed by the Respondent Oxford Polytechnic from about 1987 as a senior lecturer in law.  The employment ended, I use that word advisedly, on 1 September 1981.  The Polytechnic say that he resigned.  He says he left because he was constructively dismissed.  The Originating Application is quite remarkable for its lack of detail.  It simply alleges unfair dismissal and then in paragraph No 10, the sub-paragraphs read as follows:
"(1)requirements to work outside contractual terms
 (2)failure to specify duties as required by contract
		 (3) failure to treat employee with trust and respect
		 (4)threat to withhold references
		 (5)threat of unjustified disciplinary action
		 (6)refusal to lift threat of unjustified disciplinary action"
	It is not surprising that the Polytechnic found the greatest difficulty in pleading to that form. 

	There had been a Letter of Appointment of 28 May 1987 together with a number of other documents which formed the Contract of Employment.  On reading the papers the three members of this Court at once, when looking at those Particulars, asked themselves and ultimately asked the parties before them, "what were the terms of the Contract of Employment?" because it is abundantly clear from the locus classicus on constructive dismissal namely the Judgment of Lord Denning MR in WESTERN EXCAVATING (ECC) LTD v SHARP which I only have the report in the All England Reports [1978] 1 All ER 713 at page 717(D): that there must be a 
"...breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract..."
and also that the acceptance of that repudiation must be either immediate or within a reasonably short time otherwise, as the Learned Master of the Rolls indicates, the employee may have abandoned his right to treat the breach as fundamental.  Therefore all those points become relevant and one needs to make enquiry by way of Particulars and documentation as to exactly how the case is being put.

	Further and Better Particulars were in fact sought but let me say at once there has been no discovery of this case.  Mr Halpin who is acting on his own behalf and is clearly well able so to do, and I congratulate him on the way he has presented his case, in his Further and Better Particulars he simply refers under No 1 to documents of October and December 1990.  Likewise under No 2 and I will miss No 3 for the moment but then he refers to a particular sentence in a discussion in June 1991 and again in July and to a memorandum or letter dated 13 August.  He relies on all those responses and also on the pleadings in an action which he brought in the High Court of Justice.  

	It is important to look at the timetable.  The Originating Application was filed on 3 September 1991.  The original Notice of Appearance, the IT3, is dated 1 October and on 25 October 1991 Mr Halpin issued a writ in the High Court claiming damages for defamation.

	The Respondent in front of the Industrial Tribunal is the Polytechnic and the Defendants in the High Court proceedings are the Polytechnic and a Mr Trevor Watkins.  It is said that it is Mr Trevor Watkins who was responsible for publishing memoranda of May and June 1991 and it is perhaps important to note that there is a claim for aggravated damages in which a number of allegations are made against Mr Watkins including that what he was saying, or publishing, was untrue with a deliberate intention of causing injury, that he had a grudge against the Plaintiff and that his actions were in fragrant breach of the Contract of Employment.

	The Industrial Tribunal had before it those pleadings and it heard submissions from both sides, from Mr Sales for the Polytechnic and from Mr Halpin on his own behalf.  They heard that, as we have already said, on 4 February 1992.	 Having set out the broad history of the pleadings and referring to the fact that the High Court hearing was before a jury, the Tribunal set out the principles to be applied in paragraph 8; it set out the submissions of the various parties and the reasoning for its decision is really contained in paragraphs 17, 18 and 19 of the Decision.

	In paragraph 21 the Tribunal refers to the documentation; they felt that the matter was adequately pleaded upon the documents before them in order to be able to reach a conclusion on the discretion which they had to exercise and in exercising that discretion they refer in paragraph 17 on the one side to the principle that the Industrial Tribunals are for speedy and expeditious justice, that the proceedings were originated on 3 September 1991, that it was a constructive dismissal case and that was the sort of issue that a Tribunal was well able to deal with.  As against that on the other side they mention that if there is a difficult and contentious case underway in the High Court they mention that Mr Watkins, although a party to those proceedings, was not named in the Industrial Tribunal proceedings and they refer to the question of whether or not there has been "gagging".  There is no question here of a "gagging" whatsoever.

	On approaching this documentation a number of matters seem to us to arise.  First of all it was necessary we thought to understand what was the nature of the Contract of Employment because the first point made by Mr Halpin in his Originating Application was that he was being required to work outside contractual terms.  In other words  there were matters which were introduced into his Contract of Employment by the Polytechnic which they had no right to introduce, and also that there was a failure to specify duties as required by contract.  It was therefore in our view essential that we should try to understand rather more about this matter and at our instigation a further bundle of documents, which is far from complete, has been prepared for us over the short adjournment today.

	What is happening, we have understood it as best we may, is that under the terms of the Contract of Employment there were certain collective agreements and arrangements made between what might be called the Trade Union staff side and the management side, and those incorporated certain provisions and changes in terms of contracts agreed at national level.  Without going into the complications of that situation a letter was written on 25 February 1991 to all the teaching staff indicating that an increase in salary of 9.6% had been agreed, conditional upon acceptance of certain additional contractual requirements.  They were there set out and dealt with.  The vast majority of the teaching staff accepted the increase and accepted the change in the contractual terms.  Mr Halpin accepted the increase but was not prepared to accept the change in the contractual terms.  Now that is one aspect of the matter which will have to be investigated in due course.

	The other aspect of the matter concerns the breach of the implied term of trust and confidence but before turning to that second element it is right, although we do not yet have the documentation and although Mr Halpin felt unable to help us in detail (I  don't say that critically, he could not remember), it is apparent from the documentation that on 14 May 1991 Mr Halpin replied to an advertisement from Southampton University and he has been good enough to inform us that his salary there is greater than it was at Oxford.  In June 1991 we believe that there is a fresh contract with Southampton University which was to start on 1 September 1991 and it was on that 1 September 1991 that his employment with Oxford ended.  

	Thus there are many aspects of that which will need the most careful investigation but it is important as Mr Halpin was frank enough to tell us, that if the Industrial Tribunal hearing does not continue, he will lose two benefits which he explained to us.  The first that there might be a weakening of recollection of some of the most recent events, and secondly that although in some cases High Court action would decide the issue before the Industrial Tribunal, that was not so in this case.  I think we might add thirdly, that although it seems to us remote that he would have any compensatory award, he is not seeking reinstatement or re-engagement and I suppose there is the basic award to which he might be entitled but interest now runs on that so those are the benefits or detriments which he might suffer in those circumstances.

	Set that picture against what has now become apparent on what I would call the second limb of his claim.  The second limb of his claim which is the one which is emphasised from both sides, is that there has been a fundamental breach of the implied term of trust and confidence.  That arises in the way that Mr Halpin says that he has been entreated, and in particular by others, by Mr Watkins.  Now Mr Watkins is the Defendant against whom those allegations are made in the libel proceedings.  He is bound to be a witness in the Industrial Tribunal and those allegations in the libel proceedings will be made against him in the Industrial Relations Tribunal.  One has this situation therefore that if and when the High Court action for libel before a jury is started, if the Industrial Tribunal proceedings have been heard there may or may not have been facts and matters which are raised with Mr Watkins who is not a party to the Industrial Tribunal proceedings, and in which he will not have the benefit of solicitor and counsel and where, as we all know and this is no criticism, the rules of evidence and the procedures are not as strict as they are in the High Court.   Mr Halpin will take advantage and make use of (he is quite frank about it) those issues and any evidence that is obtained.  How then is the Learned Judge in the High Court proceedings to direct the jury?  Is he to say that they cannot find certain facts in favour of the Defendant when the evidence in the High Court may point that way?  The experience of the Court of Appeal in O'LAOIRE is not without importance, how is he to deal with the matter?

	The memoranda relied upon in the defamation proceedings are now before us and we have also seen the memorandum, if that is the right word, sent by Mr Halpin when he resigned on 1 September 1991.  If that in fact is his case in front of the Industrial Tribunal, it cries out for the most detailed request for Further and Better Particulars so as to see exactly what the issues really are in front of the Tribunal.  Where then are we left in that broad recital of the background and the problems that face us?                        

	We have had the advantage of documentation and information indeed for which we are grateful, which were not before the Industrial Tribunal.  We do not seek to criticise them.  They felt that on the basis of the face of the pleadings they were able to be satisfied that they could reach a conclusion.  They did so in those passages to which we have already referred.  
	It seems to us, first of all, that the picture now presented is a very different one and that it might have been helpful, although one can understand how one can try to save costs, if discovery had taken place.  But in essence there is much more to this than merely a constructive dismissal case, an ordinary constructive dismissal.  The very basis of the allegation of the fundamental breach of contract is in essence the same as the issue in the libel proceedings.  It is the untrue, malicious behaviour of Mr Watkins that is relevant in both sets of proceedings.  It seems to us quite impossible to separate the one set of issues from the other.  

	There are therefore dangers.  There may be problems of estoppel; there will be problems of recollection; problems of notes taken in the Industrial Tribunal; problems may be in connection with discovery, we know not but it has not taken place yet, and a number of other matters.  So that in this case we have the balance.  First of all very little detriment to the Applicant.  He really is looking for a preliminary canter before an Industrial Tribunal of the issues in the libel proceedings.  There are other issues certainly which may not be relevant to the High Court action, but in essence Mr Watkins is going to be cross-examined where he is not a party to the proceedings and which cross-examination must affect those proceedings in which he is a party.  Balancing those matters we can see very little detriment to the Applicant if the Industrial Tribunal proceedings are adjourned until the High Court proceedings are heard.  We must emphasise that we were told that within 28 days of setting down, the jury list is such at the moment that this case would be in the Warned List and if I was sitting as a Judge in Chambers I would ask that there should be expedition.  That is not a matter for us but we will accept an assurance that the matter will be brought before the Master as soon as possible and that the matter will be pressed forward.  We would hope that there would be a hearing in the autumn if in fact his case goes into the Warned List by June or July.

	In the circumstances therefore we hope we have identified that there are factors here which we feel that the Tribunal did not take into account in their balancing the problems and they are fundamental.  Until there has been full discovery it is going to be extremely difficult to see exactly what the issues are in front of the Industrial Tribunal and as already indicated, particulars of that memorandum of 1 September will almost inevitably be central to an understanding of the case which is being brought.  

	In the circumstances therefore this Appeal is allowed and the matter will no doubt go in front of the Tribunal for its Preliminary Hearing in such directions as they may give in the circumstances, and I think in a few days time.