Appeal No. UKEAT/0432/05/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 August 2005

Before
HIS HONOUR JUDGE SEROTA QC
(SITTING ALONE)

MR T B NICHOLLS	APPELLANT

C L I LTD 	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR T B NICHOLLS
(The Appellant in Person)	
For the Respondent	MR S MORLEY
(Consultant)
Peninsula Business Services Ltd
Riverside
New Bailey Street
Manchester M3 5PB	

SUMMARY

Practice & Procedure: Case Management 

Case management appeal.  No basis for interfering with Chairman’s decision.

  

HIS HONOUR JUDGE SEROTA

1.	This is a preliminary hearing by the Claimant from an order of the Chairman at the Southampton Employment Tribunal, sitting alone on 8 June 2005, the Chairman being Mr M J Davy in which he made certain interlocutory orders in relation to remedies for a compensation hearing.  The matter was referred to a preliminary hearing by Bean J on 15 July 2005; there is a cross-appeal by the Respondent but it is something which I am not able to deal with; it is an application to the Employment Tribunal to strike out the case on the grounds of the Claimant’s abusive conduct.  There also appears to be an order of HHJ Ansell staying the cross-appeal of 11 August 2005.  

2.	This case has a long, tangled and unfortunate history.  The Claimant maintained that he had been unfairly dismissed by the Respondent.  His claim was dismissed by the Employment Tribunal.  The proceedings were clearly, at least from the perspective of the Claimant and the Employment Appeal Tribunal, conducted in such a way that it was necessary for the Claimant to launch no less than four appeals to the Employment Appeal Tribunal in relation to procedural matters, all of which succeeded and after his claim was dismissed by the Employment Tribunal, he successfully appealed to the Employment Tribunal and it is in consequence of an order of the Employment Appeal Tribunal that the Employment Tribunal has now before it, in early September, the compensation hearing.  

3.	I do not feel it necessary to go into any detail into the nature of the Claimant’s employment.  Suffice it to say that the Respondent appeared to be suggesting that there was a redundancy situation but it chose not to rely upon redundancy as grounds for having dismissed the Claimant, but it sought to rely on “some other substantial reason”.  In fact, the Employment Appeal Tribunal presided over by HHJ Richardson, found that there was no other substantial reason that would have justified the dismissal of the Claimant, apart possibly from redundancy, but redundancy was not relied upon and the manner of his dismissal was hopelessly defective – there had been a total lack of consultation – and a new hearing was ordered before a freshly constituted Employment Tribunal on issues as to remedy.  

4.	The Employment Appeal Tribunal also found that in addition to the errors of law in the approach of the Employment Tribunal, certain findings of fact were perverse as having been made contrary to the evidence.  Nonetheless having regard to the decision in Dunnachie v Kingston Upon Hull CC (No.3) [2004] IRLR 727, the Employment Appeal Tribunal considered that the Employment Tribunal should, of necessity, consider what were described as in that case as the “old job facts” and “new job facts” and gave directions to the parties to set out their case so that the Respondent’s argument, if it chose to make such an argument, that the Claimant’s compensation should be reduced because his job, in any event, would have been made redundant, was adequately set out.  

5.	I have before me the documents of the Employment Appeal Tribunal, although I do not believe that I have actually seen the order that was drawn up.  The Employment Tribunal had this to say at paragraph 47:
“…. when the Tribunal considered ‘old job facts’ there is an overlap with what is known as a ‘Polkey reduction’  In other words, the Tribunal will have to consider and estimate the prospect of Mr Nicholls not retaining his job with CLI.  In so doing, the Tribunal should reach its own conclusion.  It should regard itself as bound in any way by the conclusion in paragraph 25 of the Employment Tribunal decision”.
The Employment Tribunal had said in paragraph 25 that if it was wrong in its primary conclusion that the Claimant had not been unfairly dismissed by reason of procedural irregularities, and had proper procedures been adopted, that the result would have been the same and the Claimant’s employment would have terminated on either the same date or in the extended period for which the Claimant received a voluntary payment from the Respondent.  It is clear, therefore, that the Employment Tribunal hearing the matter is not bound by that finding.  HHJ Richardson continued:
“Secondly, the Tribunal would be well advised to hold a directions hearing prior to the main hearing.  We shall direct Mr Nicholls to prepare and serve, within 28 days of our order, a statement setting out ‘the new job facts’ on which he relies and appending a calculation of the loss he claims.  We further direct that during the same period CLI, if it disputes that Mr Nicholls would have retained his job, sets out any ‘old job facts’ upon which it relies.  The Tribunal should set a directions hearing timed to follow serving of any such statements.  At this hearing the Tribunal should carefully consider what further statements are appropriate, what disclosure should be made, and what time should be allowed for the hearing of the case”.
The order of the Employment Appeal Tribunal does not reflect any of the procedural orders that I have just mentioned.  It may be that the Employment Appeal Tribunal, and it is by no means clear to me one way or the other, did not intend what it said to be regarded as a formal order.  It may be, on the other hand, that it did and that it was simply omitted from the order that was drawn up in due course.  

6.	The Claimant served his statements of “new job facts” on 9 Janu ary.  The Respondent did not set out its “old job facts”, but it wrote a letter to the Tribunal and to the Claimant on 12 January, asking what additional “old jobs facts” were required in addition to those already served in the proceedings.  It did not take matters very much further.  The Employment Tribunal called a case management discussion for 3 May chaired by Mr C J Davy.  At that point in time, and contrary to what the Employment Appeal Tribunal had wanted, the Respondent had not served the “old job facts”.  Nonetheless, the case management discussion went on and Mr Davy made a number of orders.  It was noted that the Claimant had delivered his statement of loss and new job statement and that apart from loss of earnings and expenses, he sought compensation under the decision in Dunnachie v Kingston Upon Hull City Council.  For some reason, although the decision by that stage had been to the Court of Appeal, where the decision of the EAT was varied of the decision was, we believe, changed, the order refers to the decision of the Employment Appeal Tribunal rather than in the Court of Appeal.  It was noted that the Respondent disputed that the Claimant would have retained his job and the Respondent disputed quantum and put the Claimant to proof as to loss and mitigation including whether there should be a claim under the Dunnachie principle.  He directed that the Respondent serve a statement of ‘old job facts” by 10 January; by 28 January the parties were to prepare lists and, in the case of the Claimant, to include, but not exclusively, documents corroborating attempts to obtain employment, expenses incurred in seeking employment, and particulars of new employment.  There was then an order that the parties should produce documents by 12 January and that a consolidated bundle with copies for the Employment Tribunal should be prepared no later than 25 January.  There were also to be written Skeleton Arguments.  Witness statements were to be completed by 15 August and exchanged by 22 August and the case listed for two consecutive days on 5 and 6 September.

7.	Now, it is right to say that the Respondents have served witness statements, the Claimant has not.  So far as I am aware, bundles have not yet been prepared, indexes have not been agreed and lists have not been exchanged.  There has been considerable correspondence between the parties.  The Claimant believes that he has not received sufficient information from the Respondents to enable him to purposefully prepare witness statements or bundles of documents.  

8.	The grounds of the appeal are four.  The first ground of the appeal is that the Employment Tribunal was wrong in law in making an order for disclosure of “old job facts” under the Dunnachie principle, contrary to the order of the Employment Appeal Tribunal.  I have no doubt that the Employment Tribunal, even assuming that there was a formal order of the Employment Appeal Tribunal as to the date when the order should be complied with, had ample power under its case management powers to extend that time or make a fresh order, it would be absurd if application had to be made to the Employment Appeal Tribunal to vary what were clearly intended to be case management orders for the purposes of the Employment Tribunal hearing.  That, in my opinion, is sufficient to dispose of the first ground of appeal.  What, however, lies behind that is Mr Nicholls’ belief that the Respondent is going to seek to argue something it is not entitled to pursue at the hearing.  He fears that the Respondent will seek to argue that notwithstanding the Employment Appeal Tribunal has found that he was unfairly dismissed and was not dismissed by reason of redundancy, that the Respondents will seek to argue in some way that he was.  Let me say straight away, as I have already said to Mr Nicholls, the finding by the Employment Tribunal that he was unfairly dismissed cannot now be challenged.  

9.	The Respondent cannot now argue that he was dismissed by reason of redundancy.  What it is entitled to argue, however, is and this was clearly anticipated in the decision of the Employment Appeal Tribunal is that he would, in due course, have been dismissed by reason of redundancy and that accordingly, his level of compensation should be reduced.  That is the position and I have no doubt that if the Respondent seeks to put forward some other position, Mr Nicholls will be able to submit to the Employment Tribunal that the argument is ill-founded.  He says that there are authorities to support that proposition and it may well be that he is right in that regard.  I am not concerned with arguments that will be adduced before the Employment Appeal Tribunal at this stage.  I am concerned to deal with the matters raised in the Notice of Appeal and it is quite clear to me that there is nothing in the Decision of the Employment Tribunal which precludes the Respondents from arguing, should they wish to do so, that the Claimant’s compensation for unfair dismissal should be reduced by reason of the fact that he was liable to have been dismissed at some point in time in any event.  

10.	It is secondly said that the Employment Tribunal was wrong to conduct the case management discussion before the Respondent had exchanged the “old job facts”.  Again, it seems to me that the Employment Tribunal should be regarded as master of its own procedure.  It found itself having called the case management discussion and it had to give effective directions for the hearing ,I am not prepared to say that the Chairman was wrong in his decision, which was a case management decision, to go ahead with his case management discussion, notwithstanding that the Respondent had yet to exchange “old job facts”.  He took cognisance of this and ordered that they should be disclosed, as they now have been.

11.	The third ground of appeal relates to the fact that the Employment Tribunal’s order refers to the Employment Appeal Tribunal’s decision of Dunnachie and not the Court of Appeal decision.  Mr Nicholls expresses himself to be concerned that the Employment Tribunal will ignore the decision of the Court of Appeal and approach the case on the basis of the decision of the Employment Tribunal.  This is an absurd suggestion.  It is manifest that the wrong decision has been referred to.  It is something which should be corrected by the Employment Tribunal under its equivalent of the slip rule.  It is a wholly inappropriate matter to raise by way of appeal and I say nothing more about it.  I regard it as inconceivable that the Employment Tribunal will, in any way, seek to base its decision or the submissions it hears upon a decision that has been over-ruled.  

12.	Fourthly, it is said that the Employment Tribunal was wrong to order Further and Better Particulars.  Mr Nicholls complains, and I can see some merit in his complaint, that he has been attempting to get the Respondent to respond to various matters for some considerable time including a response to his Schedule of Loss.  This case, unfortunately, has not been helped by the Claimant’s conduct.  While I accept that Mr Nicholls is a litigant in person who finds difficulty always in identifying and arguing relevant points, it is unfortunate that at one time he was writing almost daily to the Employment Tribunal and making allegations that seemingly are unnecessary as to allege falsehoods on the part of the Respondent and its representative.  There are a number of letters including, in particular, a letter of 28 May in which he suggested that the Chairman of the Employment Tribunal, Mr Davy, has not been acting fairly.  As a result of these letters - and Mr Nicholls very much seems to have taken the bit between his teeth - he has made all sorts of allegations and complaints about the Respondents and also about the Chairman of the Employment Tribunal to the extent that the Chairman of the Employment Tribunal concluded that he was simply not going to respond any further to the Claimant’s letters of application and that anything that needed to be disposed of would be disposed of on the first day of the hearing.  It is unfortunate that matters came to that pass but that is the position.  

13.	Mr Nicholls’ conduct is such – and I express no views about it whatsoever – that the Respondent now maintains that he is conducting the proceedings in an abusive and vexatious manner and has sought to have his claim struck out on that basis.  That is something which was to have been heard by the Employment Tribunal.  I believe that this week or early next week the decision appears to have been adjourned.  

14.	I have to decide what to do about the Claimant’s complaint that the Employment Tribunal failed to order disclosure of Further and Better Particulars.  It is right to say that the order against which he appeals said nothing about Further and Better Particulars, although there is a letter on which he relies, of 25 May, in which he says:
“(6)		The Claimant does not know the details of the Respondent’s dispute, grounds, reasons or objections to this claim, it is not justice that he must finalise his material documents of evidence, plus materially prepare his witness statements without knowing the Respondent’s side of the case.
(7)		The Claimant requests the Chairman to Order the Respondent to give detailed particulars of this dispute with the Claimant’s Schedule of Loss (plus addition)”.  
I have raised this matter with the Respondent, who appears today not by Mr Cater, but by Mr Morley, a consultant, and Mr Morley has agreed that the Respondent will give its response to the Claimant’s Schedule of Loss by 4pm this coming Tuesday, which I believe to be 30 August.  Time is very short.  I do not consider that it would be appropriate to contemplate any order that might lead to a further adjournment of these proceedings which should have been disposed of some time ago.  That will be reflected in the order of the Employment Appeal Tribunal.  Apart from that, I do not think it appropriate to make any further orders, but I repeat and Mr Nicholls will doubtless inform the Employment Tribunal that it is clear that they must approach the case on the basis of the decision of the Court of Appeal in the Dunnachie case and no other.  

15.	If matters before the Employment Tribunal are such that any party considers it appropriate to ask for an adjournment, they can do so, but while it is not for me to advise Mr Nicholls.  I can only say that he would be well advised to do everything he can, as I have already suggested, to ensure that as far as lies within his power, witness statements are served and bundles of documents are prepared.  I know there are difficulties in communication between the Claimant and the Respondents - there appears to be no love lost between them – but Mr Morley has assured me that he will discuss with Mr Nicholls outside the Court questions relating to disclosure and which documents the Respondents would wish to see in the bundle.  It is also clear from correspondence that I have seen from Mr Nicholls, which he kindly handed to me, that there are various documents which the Respondent has sent to the Employment Tribunal or which the Employment Tribunal has received from others which have not been available to Mr Nicholls.  The position presently is that the Employment Tribunal does not appear to be responding to complaints made by Mr Nicholls.  I would expect – and again, this is something Mr Nicholls will doubtless draw to the attention of the Employment Tribunal – that if Mr Morley is not prepared or in a position to ensure that those documents are made available to Mr Nicholls as soon as possible, that those documents will be made available to him by the Employment Tribunal.  

16.	There is a further matter and that is that Mr Nicholls has mentioned that he wishes to call at least one witness who is an employee of the Respondents and Mr Beaumont and wishes a witness summons to be issued.  He has written to the Employment Tribunal which has not responded.  I have advised Mr Nicholls that he should attend the Employment Tribunal tomorrow with a list of the names and addresses of the persons he wishes to have summoned to explain to them the oncoming hearing and he should perhaps leave a covering letter pointing out that at this appeal today before the Employment Appeal Tribunal, that was a course I suggested that he adopt and I have no reason to doubt that if he does that, his application will be considered by the Chairman and, if thought appropriate, witness summonses will be issued.  I also record that Mr Morley told me that he will communicate with Mr Beaumont and ask Mr Beaumont whether he is prepared voluntarily to attend without the need for a witness summons.