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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Lilburne-Byford v Essex County Council [1999] UKEAT 264_98_2107 (21 July 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/264_98_2107.html Cite as: [1999] UKEAT 264_98_2107

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APPEARANCES

 

For the Appellant	MRS GILMORE (of Counsel) Instructed By: Messrs Banks Kelly Solicitors 60 Cheapside London EC2V 6JS


 


JUDGE CLARK: The Appellant, Mr Lilburne-Byford, was employed by Essex County Council (the Council), from 2 December 1981. On 12 April 1991 he took up the post of Resident Caretaker at Perryfields County Junior School, Chelmsford. His duties included work at the Infants School nearby. On 5 May 1995 he was summarily dismissed. His appeal against that decision was dismissed on 1 June 1995.

1. By an Originating Application dated 31 July 1995, he complained of failure to provide written particulars of his terms and conditions of employment; automatically unfair dismissal for an inadmissible reason, namely health and safety activities contrary to section 100 Employment Rights Act 1996, and breach of contract. He named as Respondent to his application "Peter Ayre – Personnel Services Manager – Essex CC". On 7 November 1995, a Chairman sitting at Stratford directed that the only proper Respondent was Essex County Council.
2. A directions hearing was held before a Chairman at Stratford on 8 January 1997. By a letter dated 13 January, that Chairman identified the issues in the case. The substantive hearing of the application took place on 1 - 3 October 1997 before a full Tribunal sitting at Stratford under the Chairmanship of Mr I F Pritchard-Watts. The Appellant was represented by a friend, Mr Ablett; the Council by Mr Lane, a barrister.
3. By a decision with Extended Reasons promulgated on 3 December 1997 (the substantive decision), the Employment Tribunal made minor alterations to the Appellant's contract of employment and dismissed the remainder of the complaint. In essence, they found that the Appellant was required to carry out health and safety activities, but such activities were not the reason, or principle reason, for his dismissal. What caused his dismissal was his persistent refusal to obey the reasonable instructions of his employers; a reason relating to his conduct; that the Council carried out a fair disciplinary procedure; they had a genuine belief based on reasonable grounds following a reasonable investigation in the misconduct alleged; the misconduct was such that summary dismissal fell within the band of reasonable responses open to his employer. The dismissal was fair.
4. As to the claim of breach of contract, the Tribunal rejected the Appellant's case, first that he had been required to work in excess of his contract of employment; secondly that his contract was varied after April 1991. Finally the Tribunal ordered the Appellant to pay the Council's taxed costs of the full merits hearing and preparation therefore on the basis that the proceedings had been conducted unreasonably by Mr Ablett on his behalf. Mr Ablett had generated unreasonable correspondence prior to the hearing and had persisted in conducting his case at the hearing unreasonably despite some ten warnings as to his conduct delivered by the Chairman during the course of the three-day hearing.
5. Following promulgation of the substantive decision, Mr Ablett applied on the Appellant's behalf for a review. A review hearing before the same Tribunal took place on 14 September 1998. For the reasons given with a decision promulgated on 25 September 1998 (the review decision), the Tribunal dismissed the review application and ordered the Applicant to pay costs of £500 to the Council.
6. Meanwhile, by a Notice dated 9 January 1998, settled by Mr Ablett, the Appellant appealed against the substantive decision to this Appeal Tribunal. This is a preliminary hearing held to determine whether the appeal raises any arguable point or points of law to go forward to a full inter-partes hearing. Today, Ms Gilmore of Counsel appears on behalf of the Appellant. She and her solicitors have been brought into the picture late in the day, emergency legal aid having only having been granted yesterday. Nevertheless, Ms Gilmore was able to prepare a clear and helpful Skeleton Argument over night, which we considered.
7. Today, when the case was called on, she applied for an adjournment of this preliminary hearing, in order that she might have an opportunity to read the papers in the case. We therefore adjourned for some two hours for that purpose. When the Court was reconvened, Ms Gilmore renewed her application for an adjournment on the basis that she now had instructions from the Appellant that at the substantive hearing the Respondent had withheld evidence, which related to the contractual disciplinary procedure. He wanted an opportunity to properly instruct Counsel to argue that point in this appeal at a further preliminary hearing.
8. We refuse the application because we were told that the point about the alleged withheld evidence was not taken in the course of the review application. The Court of Appeal has made it abundantly clear in Jones v Burdett Coutts School [1998] IRLR 521, that on appeal, new points will not be allowed save in exceptional circumstances. We can see no exceptional circumstances in this case.
9. The Skeleton Argument takes only one point arising out of the original grounds of appeal, that is ground 10, an appeal against the costs order made by the Tribunal following the substantive hearing. Ms Gilmore submits that on the face of the Tribunal's reasons, no enquiry was made into the Appellant's means before the costs order was made. Those costs have now been taxed and we are told that they come to £13,966.05. In support of her submission, she has referred us to a decision of this Tribunal, Judge Colin Smith QC presiding in Omar v Worldwide News Inc [1998] IRLR 291. Having considered that case, and the submissions made by Ms Gilmore, we are satisfied that the costs appeal arising out of the substantive decision is a point which ought to proceed to a full inter-partes hearing. That does not quite end the matter.
10. Ms Gilmore also accepting that there is no Notice of Appeal against the review decision of 25 September 1998 seeks leave to appeal out of time against that decision, insofar as the Tribunal again made a costs order, this time in the sum of £500. The only reason advanced for the Appellant's failure to enter a Notice of Appeal against the review decision is that he has been let down by Mr Ablett. That is not a good reason for granting an extension of time - see United Arab Emirates v Abdul Gafar [1995] ICR 65.
11. Further, although not strictly required to do so, we have considered the merits of the proposed appeal against the review decision on costs. Whereas in the substantive decision the Tribunal appear to have made no enquiry as to the Appellant's means, we see from paragraphs 14 and 15 of the review decision reasons that enquiries were made; that the Tribunal learnt that the Appellant was in receipt of just £69 per week Disability Benefit, but nevertheless, they considered that the Appellant's conduct of the case had been so unreasonable that an order for the maximum assess sum of £500 should be made.
12. Although a Tribunal is bound to take into account the means of a party against whom a costs order is sought, it is not the law that the mere fact of impecuniosity will of itself be a ground in every case for refusing an order for costs – see Wiggins Alloys v Jenkins [1981] IRLR 275. It seems to us that the Tribunal properly directed itself at the review hearing stage and reached a conclusion which was open to it. Thus, even had the appeal against the review decision been in time, we think it has no real prospect of success.
13. In these circumstances, we shall refuse the application for leave to appeal against the review decision out of time. So far as directions are concerned, we shall list the single costs point in relation to the original appeal for two hours, Category C. There will be exchange of Skeleton Arguments not less than 14 days before the date fixed for the full appeal hearing. Copies of those Skeleton Arguments to be lodged with the Appeal Tribunal at the same time.