Appeal No.	 EAT/357/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 May 2000

Before
THE HONOURABLE MR JUSTICE NELSON
MRS J M MATTHIAS
MR S M SPRINGER MBE

GREY COMMUNICATIONS GROUP LTD	APPELLANT

MR R WILSON	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR M E JONES
(Representative)
Instructed By:
Messrs Arnold & Porter
Solicitors
Tower 42
25 Old Broad Street
London EC2N 1HY	

	MR JUSTICE NELSON:	This is a preliminary ex-parte hearing in respect of an interlocutory matter which was finally dealt with on 7 February 2000 by an order being made as to how the proceedings should be dealt with and directions given.

1	The matter arises out of the original Applicant employee contending his unfair dismissal.  The response of the Appellants in this matter, his employers and the Respondents to the application, is that this was not an unfair dismissal situation at all, but a matter of redundancy leading to dismissal by redundancy orally given on 10 March 1999 and set out in writing on 12 March 1999.

2	The issue however, is a good deal more complicated than that initial description.  The employee contends, as part of his claim for unfair dismissal, that the real reason why he was dismissed was nothing to do with redundancy at all but to do with the fact that he had, in his view, uncovered various matters or practices carried out by his employers which led him to believe that some dishonest activities may be taking place.  He set in train, as a result of raising these matters and having them dealt with in discussion with various different officers of the company, an enquiry.  Having set that enquiry in train, he contends that the consequence was that he was dismissed under the guise of redundancy in order to get rid of him because he was, in effect, a whistle-blower.  

3	Those are the essential issues.  Plainly, by reason of this, one of the matters that will arise is consideration of the Public Interest Disclosure Act of 1998 which came into force in July 1999.  But it is not simply that, it is also what has been described in submissions to us as an old-fashioned claim for unfair dismissal as well.  This takes me to the point of this preliminary hearing.

4	The Appellant employers contended before the Chairman that the appropriate course was to have a preliminary hearing which would relate to the two matters which were properly amenable to such a preliminary hearing.  Firstly, was there a redundancy and secondly, does any point of complaint made under the Public Interest Disclosure Act 1998 fall within that Act, ie does any complaint arise when the Act was in fact in force, it being the contention of the Appellant employers that the dismissal, on any view, was in March 1999 and that the Act did not come into force until July 1999?  It would therefore be sensible, pragmatic and cost saving for those matters, together with a small additional matter on wrongful dismissal, to be dealt with by way of preliminary hearing.

5	The matter was dealt with first of all on paper and then subsequently by way of a hearing inter partes.  The decision of the Tribunal set out in the letter of 7 February 2000 gives an accurate account of what issues were agreed between the parties as being the issues which would arise and those are set out in paragraph 6 of that letter.  In determining whether or not there should be a preliminary hearing the Tribunal said this:  

“Having heard the arguments however the Chairman decided that the same witnesses and material would have to be made available to decide the points if raised at a Preliminary Hearing or at a full merits hearing and it will be important to have the same Tribunal as the facts are quite complicated.  The Chairman therefore ordered that the matter should proceed to a full merits hearing and the order on which the issues are addressed would be decided by the Chairman who is hearing the case.  Application can be made to that Tribunal if the order of taking issues are not agreed between the parties.  If the Tribunal makes preliminary findings at the commencement of the case the Respondents can submit that the Tribunal has no jurisdiction and the case can be dismissed.”

6	Although it is conceded before us that there is some (what is said to be) small overlap in terms of witnesses and evidence and although it is accepted that that is the case, nevertheless it is said that the degree to which there is that overlap of both evidence and issues is sufficiently small to make it the wrong decision for the Chairman to have made, to have rejected the application for preliminary issues to be dealt with.  It is said that the hearing was originally estimated by the Appellants to be some 10 to 15 days, but the Chairman, having heard both parties and considered the matter, set the hearing down for 8 days if there was a full merits hearing, whereas there would be a hearing of only some 3 or so days if the preliminary issues alone were dealt with by the Tribunal in the manner requested by the Appellants.  The saving of costs and the saving of time would be substantial because if the Respondents to the application, the Appellants to this appeal, succeeded there would be no need for any further hearing on the merits to go ahead.  In those circumstances, it is said that that would be substantial cost saving and advantage and the proper administration of justice.

7	Finally, it is said that proceedings should not in any event be conducted so that they might be, whatever the intention, in their result abusive or oppressive or unduly expensive on an employer.  That however is what has happened here it is submitted, in that a claim for whistle-blowing has been made which, it is said, will be unsustained on the evidence in the submission now made before us, yet the manner in which it has been approached and dealt with by issuing press releases, shows that the proceedings are not being utilised and carried out as properly as they should be.

8	We have taken into account those submissions.  We are very conscious of the need for the Court to ensure that unnecessary time is not spent and that unnecessary costs are not expended.  We are also conscious of the fact that it is often said that the best person to determine litigation of this kind is the Chairman dealing with the application before it and, indeed, the Tribunal dealing with the matter, rather than an appellate court, and it is partly for that reason, or perhaps that particularly highlights the reason, why on an interlocutory appeal such as this is, the decision (as was conceded) has to be in effect unsustainable before an appeal can succeed.

9	We for our part are satisfied that there is an overlap of evidence.  We are also satisfied that there will be witnesses who will be giving evidence, both on the preliminary issues suggested by the Appellant and indeed, on the full merits.  We also recognise that the Public Interest Disclosure Act 1998 is not the whole question because in considering redundancy the Tribunal will also have to consider whether there is not an old-fashioned unfair dismissal claim.  

10	In these circumstances the decision as to whether there should be a preliminary hearing or not is a relatively finely balanced one.  If, anxious to ensure that costs and time are not wasted, this Tribunal felt that there was an entirely clear conclusion to be drawn as to how the proceedings should be dealt with, we would not shrink from dealing with the matter by ordering a full hearing.  But having considered and weighed the matter we do not think that the decision the Chairman made, that there should be a full merits hearing, as opposed to a preliminary issues hearing, or in the sense of the directions that he ordered, can be said to be at fault or in error.

11	We certainly do not think, in view of the fact as I have indicated, that the matter is finely balanced and arguable that this is a case where it could be said that the Chairman’s decision was unsustainable.  We therefore dismiss this appeal for those reasons.