Appeal No. PA/1285/02 & PA/1363/02 DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 March 2003

Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)

MR R P LODWICK	APPELLANT

LONDON BOROUGH OF SOUTHWARK	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEAL UNDER RULE 3 (10)

Revised

	APPEARANCES

For the Appellant	MR R P LODWICK
(the Appellant in Person)	

HIS HONOUR JUDGE PETER CLARK

1	The Appellant, Mr Lodwick, was employed by the Respondent, the London Borough of Southwark, as a residential care officer.  His contract of employment initially provided that he work a 37-hour week.  By agreement, that working week was reduced to 32 hours, but from 1 February 2000, at the Appellant’s request, he reverted to a 37-hour week.

2	In October 2000 he successfully applied for a full-time post as an advice worker with the Lambeth Citizen’s Advice Bureau.  The post was initially for a limited period of 12 to 18 months.  He then approached the Respondent asking for leave under what he described as their sabbatical leave scheme.  Mr Bucknill, then Disability Service Manager, said he had never heard of such a scheme but even if it existed cover would have to be arranged for the Appellant’s job.  On Mr Bucknill’s advice the Appellant made an application in writing to Mr Bull, the Director of Social Services.

3	In short, the Respondent declined to permit him leave of absence, nor were they prepared to reduce his hours significantly so that he could work as required by the CAB.  He, nevertheless, went to work for the CAB and in due course, following disciplinary proceedings, he was dismissed on 25 April 2001 for non-attendance at work with Southwark.  An internal appeal against that decision was unsuccessful.

4	He presented an Originating Application to the London (South) Employment on 23 July 2001, which came on for hearing before a Tribunal chaired by Mr R Peters over five days in July 2002.

5	At the outset, the Appellant objected to Mr Peters sitting on his case.  His objection was that he could not have a fair hearing before a Tribunal on which Mr Peters sat because some four years earlier Mr Peters had been a party to a decision in a Tribunal case where the Appellant had acted as representative for one of the parties.  The Appellant said that, in that case, Mr Peters made comments in the written decision about Mr Lodwick’s conduct of the hearing and costs were awarded against the party whom he represented.  The Tribunal considered that application, it being opposed by the Respondent, and decided that the Chairman would not stand down on the basis that he was one of a panel of three and, although he had recognised Mr Lodwick, he had no recollection of his conduct of the case four years earlier.

6	The Tribunal identified four grounds of complaint by the Appellant; unfair dismissal, breach of contract, right to work part-time and right to unpaid parental leave.  Having set out their findings of fact in a decision with Extended Reasons promulgated on 16 August 2002 (the Substantive Decision), the Tribunal dismissed all four complaints; that of parental leave was dismissed on withdrawal by the Appellant; that alleging a right to work part-time was struck out as being misconceived; those of unfair dismissal and wrongful dismissal were dismissed on their merits.

7	The Appellant then applied for a review of the substantive decision.  That application was considered by the Regional Chairman and was summarily dismissed for the reasons given in a review decision, with Extended Reasons, on 19 September 2002.  

8	Against both the substantive and review decisions the Appellant appealed by a notice dated 20 September 2002.  By a letter dated 29 November the Registrar, having considered the Notice of Appeal, concluded that no point of law was there identified and directed that no further action be taken on the appeal: see Employment Appeal Tribunal Rules of Procedure, Rule 3 (7)

9	Consequently, the Appellant submitted fresh grounds of appeal dated 24 December 2002.  The matter was then referred to me under Rule 3 (10).

10	Today Mr Lodwick has appeared before me and it is apparent that he is not without skill as a lay advocate.  He has also prepared what is described as a Skeleton Argument, but is in fact a very full and detailed written submission running to some 16 pages, liberally sprinkled with references to decided cases and to European law.

11	The question for me is whether the EAT has jurisdiction to entertain this appeal.  Jurisdiction is limited by section 21 (1) of the Employment Tribunals Act 1996 to considering questions of law.  It is therefore necessary for Mr Lodwick to satisfy me that this case does raise errors of law on its own facts; academic treaties as to the law is not the same thing.

12	I begin with his complaint of bias against the Tribunal and in particular, first, Mr Peters sitting on the substantive hearing.  As I understand the Court of Appeal’s decision in Locabail, the fact that a Court or Tribunal has earlier sat on a case involving the same parties does not, of itself, give rise to an appearance of bias.  Here what is said is that Mr Peters took against the Appellant when he appeared as an advocate on an occasion four years earlier.  The Chairman appears to have had little recollection of that incident.  It does not seem to me that this case has the beginnings of a bias appeal.
13	Other less significant complaints are made about the conduct of the hearing, which I have considered, but which again in my view raise no real argument that the Tribunal, the Chairman in particular, was biased.  In particular, the fact that the Tribunal ordered costs at the end of the day seems to me to reflect a judgment after hearing the whole of the case, not a pre-judgment, which is what bias means.

14	Insofar as the general merits of the case are concerned, Mr Lodwick has addressed me on the question as to whether or not he was in breach of contract in declining to work his full contractual hours with the Respondent, having taken up and begun employment with the local Citizen’s Advice Bureau.  I have read the way in which that argument is put.  Again, it seems to me there is absolutely nothing in it.  If there is no agreement, then either you work your contractual hours for employer A or you leave that employment and go to work for employer B; what you cannot do is work for employer B and insist that employer A keeps you on, on such terms as are convenient to you.

15	The claim based on the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and the Directive 97/81 EC seems to me to have been entirely misconceived.  Those provisions were designed to protect part-time workers from being discriminated against when compared with full-time workers.  They do not give a right to an employee who wants to go and work for somebody else to insist that his original employer continues to employ him part-time.

16	In these circumstances, I have concluded that the Registrar was correct in this case.  There is no error of law raised in the Notice of Appeal, nor in the subsequent argument.  Accordingly I shall direct that no further action be taken on this appeal.