Appeal No.	 EAT/636/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 September 1997

Before
HIS HONOUR JUDGE J HICKS QC
MR R H PHIPPS
MS B SWITZER

MRS B BACHE	APPELLANT

ESSEX COUNTY COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR JOHN LEGGETT
Flat 3
62-64 High Street
Great Wakeing
Essex
SS3 OEQ	

	JUDGE J HICKS QC:    The Appellant, Mrs Bache, was employed by the Respondent employers, Essex County Council, as a care assistant from August 1989 until 15 November 1995, when she was dismissed, and she applied to the Industrial Tribunal complaining of that as an unfair dismissal.  That application was dismissed and she now appeals.

	Mr Leggett, who appears for Mrs Bache here, did not argue and, as far as we can see there is not, in the Notice of Appeal, any ground of error of law appearing on the face of the Reasons of the Industrial Tribunal.  Dismissal followed lengthy and repeated disciplinary and internal appeal hearings on the part of the employers, during which Mrs Bache was suspended on pay and the dismissal occurred because, after the latest of those hearings but pending a possible appeal against the result, which had involved the lengthening of a period of final warning, Mrs Bache was asked to return to work and refused to do so unless the employers withdrew all allegations against her, withdrew all warnings and informed the persons with whom she would come into contact that there was no outstanding allegation against her.

	The Industrial Tribunal held that in those circumstances the employers were justified in refusing to accept those conditions and, since Mrs Bache refused to return to work on any others, in dismissing her and, as I have said, there is as we understand it no appeal against that as showing any error of law in the Reasons given by the Industrial Tribunal.

	What is alleged in the appeal is that the Industrial Tribunal and, in particular the Chairman, misconducted itself in the hearing of the application and a number of such allegations are made, the first of which is that Mrs Bache’s representative, Mr Leggett, was prevented from acting as such and it is quite clear and not in dispute, as appears from the Chairman’s comments and indeed, the Chairman’s notes of evidence, that at a certain stage in the proceedings Mr Leggett, having represented Mrs Bache up to that point, the Tribunal retired, discussed the question, returned, excluded everyone except the parties and their representatives and effectively had a discussion as to whether Mr Leggett should be permitted to continue as representative and decided that he should not.  He was permitted to remain and to assist Mrs Bache and, so far as the Chairman’s notes and comments go, it would appear that on at least one later occasion he was permitted to ask questions, namely questions which amounted to re-examination of Mrs Bache herself after she had given evidence and been cross-examined.  But apart from that and possibly any other exceptions, Mr Leggett was confined to giving advice and assistance to Mrs Bache, but was not permitted to represent her in the sense of addressing the Tribunal or questioning witnesses.  We say no more about whether that ground is a sufficient ground upon which to allow an appeal or not, because we do consider that it is arguable and therefore it will proceed to a full hearing and it is not for us therefore to make any comment about its weight or what the likely result of the appeal on that point should be.

	However, there were a number of other allegations of misconduct, and since we consider that none of those is arguable and that the appeal should therefore be heard on that one point only we shall briefly give our reasons for dismissing the appeal on those other grounds.

	The first of those other grounds is that it is alleged that the Chairman at one point, as it is put, shouted at Mr Leggett for using Latin, the Latin in question being the phrase “per se”.  We consider that that is really a trivial matter and would not of itself amount to an arguable ground for appeal, although since it is so closely bound up with the allegation that Mr Leggett was prevented from acting we propose to treat that as being a single ground of appeal including both of those points.

	The next allegation is that at one stage the Chairman used the expression “who will rid me of this woman?”, but as Mr Leggett very fairly and properly agreed that was known by everybody not to be an expression of his view about Mrs Bache; it was in the context of canvassing what the employer’s reasons were for dismissing her and what Mrs Bache’s case was as to those reasons and the Chairman was effectively saying to Mrs Bache and/or her representative Mr Leggett, “are you saying that the employer’s attitude was, who will rid me of this woman?” - so there is nothing in that point.

	The next allegation is that the Chairman disallowed questions to a witness about the minutes of certain internal disciplinary or appeal proceedings.  The witness in question was one called by Mrs Bache, although an employee of the employers.  The witness had taken the minutes at one of these hearings and this incident occurred during what lawyers call “re-examination”.  In other words, this witness had given evidence on behalf of Mrs Bache or at Mrs Bache’s behest and then been cross-examined by the Counsel for the employers.

	Mr Leggett tells us that he was then allowed to ask further questions at the stage of re-examination and was stopped only, he says, when he attempted to demonstrate that the employers had destroyed the handwritten minutes and substituted false ones.  He says that he also wanted to establish that he had not asked certain questions shown in those minutes as having been asked.  He accepts that neither of those points had been dealt with during the evidence of the relevant witness before the cross-examination by the employers and it seems to us that the Chairman was acting entirely within his proper discretion in deciding that those matters and those allegations, which must moreover have involved leading questions, should not be raised with this witness for the first time in re-examination after the earlier stages of evidence had been completed.

	The next allegation is, as it is put in Mrs Bache’s Notice of Appeal, that the Chairman declined to accept statements by her line manager, Mrs Hudson.  The situation was that Mrs Hudson, who had been Mrs Bache’s line manager, had made a written statement and had been available to give evidence at an earlier appointment for the hearing, but that that appointment had been adjourned at the request, Mr Leggett tells us, of the employers, although Mrs Bache had agreed to it, and at the date when the hearing came on Mrs Hudson was in South Africa, being out of this country for some three months.  However, her written statement was in the bundle which Mrs Bache submitted to the court and to the Respondent employers and the employers also had a tape recording of it.

	We understand from Mr Leggett that it was mentioned on the first day of the hearing, in what we take it amounted to Mr Leggett’s opening of the case on behalf of Mrs Bache, and that neither the Chairman nor any other member of the Tribunal refused to look at it.  It is therefore not at all clear to us in what sense Mrs Bache, in the Notice of Appeal, uses the words “decline to accept”.  She may mean simply that apparently the Tribunal did not act on the evidence of Mrs Hudson and draw the conclusions which Mrs Bache would seek.  At any event, there is no indication so far as we can see that the Tribunal did not have before them Mrs Hudson’s statement - they did - and no indication that they refused to or did not read it and take it into account.  Mr Leggett says that at some stage the Chairman said of Mrs Hudson, “she is not here to back it up”, but that seems to be a comment simply going to the weight to be attached to the statement in the circumstances and not a refusal to take the statement into account for what it was worth.  We therefore consider there is no arguable point there.

	The sixth allegation is that the Chairman said to Mrs Bache, as she alleges in a rude manner, when she complained of the excessive hours which she was working, “You volunteered for this, didn’t you”.  We regard that as being the sort of comment that is often made and really as being a trivial matter that cannot amount to an arguable ground of appeal.

	The next allegation is that the Tribunal failed to consider the closing submissions made on behalf of Mrs Bache.  The closing submissions were put in in writing and Mr Leggett’s presentation of this point really centres not so much on the closing submissions themselves, in the sense of the arguments which he put in the submissions, but the fact that he wanted to include in those submissions three statements by the hearing officers who had conducted the various disciplinary and appeal hearings within the employers which were already in the evidence bundles.  He was allowed to do that and there is really no evidence whatsoever that the Tribunal failed to consider them.  The complaint by Mr Leggett really amounted to this, that he submits that if they had been considered then the Tribunal would, as he says, have looked into the points raised in those statements further.  That is simply not an arguable ground of appeal.  There are perhaps two ways in which it might be put.  One is that the real complaint is that the Tribunal failed to give the effect to that evidence that Mrs Bache and Mr Leggett wished they had, but that is not an error of law; it is for the Tribunal to make their own decisions on such points.  The other way of putting it, perhaps, is that Mr Leggett is complaining that if they had paid attention to those statements they would have initiated some yet further enquiry, but that will not do because the hearing before the Tribunal was completed and it was the duty of the Tribunal then to reach a decision on the evidence that was before it, not to initiate yet further enquiries, so there is nothing in that point either.

	The next point is an allegation of bias.  The only ground for this, which was not put to the Chairman at the time, is that during the course of the hearing he disclosed that he had at one time been a Magistrate in the Southend area and the suggestion is that the principal complainant, whose complaint had given rise to the disciplinary hearings of the employers, was also involved in Civic and possibly Magisterial affairs and that the Chairman would therefore be biased in her favour and should have disqualified himself.  There is absolutely nothing in this point and indeed, Mr Leggett, who has presented this appeal very fairly and properly, agrees, to use his own words, that perhaps he and Mrs Bache were “a little paranoid or a bit naughty about this allegation”.  Certainly it is not one that is arguable in our view.

	The final allegation is that Mrs Bache and Mr Leggett were persuaded not to call a witness, Ms Pointer.  Ms Pointer was the daughter of the complainant whom I have just mentioned.  It is common ground that the incident or one of the incidents which precipitated the complaint was the passage of some heated words between Mrs Bache and Ms Pointer in the presence of Ms Pointer’s mother, Mrs Pointer, who was one of the persons Mrs Bache was responsible for helping.

	The situation therefore was that Mrs Bache had obtained an order for Ms Pointer to attend as a witness.  It was Mr Leggett, on her behalf, who proposed to call Ms Pointer as a witness.  It was quite apparent, and Mr Leggett agrees, that Ms Pointer had said and done nothing to suggest that her attitude to Mrs Bache was any more friendly or supportive than it had been and the Chairman, as we consider, not unnaturally and very helpfully pointed out to Mrs Bache and Mr Leggett the potential consequences of their calling this witness, who was extremely unlikely to say anything in their favour and who was their witness and therefore could not be cross-examined by them, and Mr Leggett agrees that that broadly speaking was the nature of the comments that the Chairman made to Mrs Bache and himself and which led them to decide that they would not call Ms Pointer as a witness and to release her from attendance at the hearing.

	Once we had established in the course of Mr Leggett’s presentation of this appeal that that was how it happened, he very fairly and properly agreed that on reflection that was probably not misconduct on the part of the Chairman and we are quite clear that it was not and that therefore there is nothing in that point.

	Those are our reasons for rejecting the grounds of appeal other than the one which we decide shall go forward to a hearing, and since it is now 20 past 12 we think probably the best course is to rise very briefly because it would be better, we think, to have that ground properly formulated rather than leave this Tribunal, when it comes the hearing, as it were to search for it in the middle of what is quite a considerable mass of documentation and a lengthy notice of appeal.

	So, Mr Leggett, would it help you if we rose briefly and perhaps then showed you a draft of this ground.  It is for you to decide how to reformulate your ground, but if it would help you we will try to give you a suggestion.

	What we would suggest is that the Notice of Appeal be amended so that the grounds are as follows and I have it written down in rather scrappy handwriting.  “The Industrial Tribunal misconducted the hearing in that (1) the Chairman shouted at the Appellant’s representative, Mr Leggett for using the Latin phrase “per se”; (2) the Tribunal during the afternoon of the first day of the hearing improperly ruled that Mr Leggett could no longer represent the Appellant and could not examine or cross-examine witnesses”.