Appeal No. UKEATPA/1712/09/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 May 2010

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MISS E SCOTT	APPELLANT

MATTHEW ARNOLD & BALDWIN SOLICITORS	RESPONDENT

Transcript of Proceedings

JUDGMENT

RULE 3(10) APPLICATION - APPELLANT ONLY

	APPEARANCES

For the Appellant	MISS EUPHEMIA SCOTT
(The Appellant in Person)	

SUMMARY
UNFAIR DISMISSAL – Reasonableness of dismissal
PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity

In this unfair dismissal claim, the Employment Tribunal did not err in its approach to the Claimant’s claim that the Respondent failed to deal with her grievance and so broke the implied term. 

As a matter of fact the Employment Judge did not announce a finding in favour of the Claimant at the end of the hearing and published reserved reasons dismissing her claim. The Judgment and reasons were both reserved and were consistent with dismissal. The retention of a (listed) date for a remedy hearing was misunderstood by the Claimant to mean she had won. 
HIS HONOUR JUDGE McMULLEN QC

1.	This appeal is about a criticism of a failure by an employer to deal with a grievance, and one aspect of Employment Tribunal procedure.  I will refer to the parties as the Claimant and the Respondent.

Introduction
2.	It is an appeal by the Claimant against the reserved Judgment of an Employment Tribunal under the chairmanship of Employment Judge Hyams sitting at Watford over five days, registered with Reasons on 14 December 2009. 

3.	The Claimant represented herself; the Respondent was represented by counsel.  Today she has had the services of counsel under the ELAA Scheme and wishes to represent herself.  She raised a number of complaints relating to unfair dismissal and there is a complicated factual background, but the outcome was that the Claimant was dismissed fairly. Essentially, the relationship between this firm of solicitors and the Claimant, one of its secretaries, broke down and the Respondent dismissed her.

4.	The issues on appeal are considerably simplified because they are within the narrow remit of the two points I have mentioned above.  The second is a new point raised today.  The Claimant wishes to amend her Notice of Appeal to complain about the failure of the Respondent to deal within a reasonable time with the second grievance dated 21 December 2007 which is itself a breach of the implied term of trust and confidence.  I accepted the application, subject to any objection to be made by the Respondent, and will deal with both that and the one original ground of appeal.

5.	In Haritaki v South East England Development Agency UKEATPA/0006/08 at paragraphs 1 to 13 I set out my approach to applications under rule 3(10).  On the sift of this Notice of Appeal the appeal was stayed by HHJ Reid QC pending the outcome of a review.  The review was conducted pursuant to the Claimant’s application dated 17 December 2009.  The decision of the Judge made under rule 35(3) was that the review should be refused pursuant to Reasons which he gave on 26 January 2010.  The Judge accepted two criticisms made by the Claimant of the typing, but apart from that the Judgment stood.

6.	 The Judgment was followed by applications for costs; first by the Respondent and then by the Claimant for preparation time.  The three‑person Tribunal met on 4 March 2010 and dismissed the Respondent’s application. The preparation time application by the Claimant was withdrawn (in the circumstances, subject to this appeal). Generally that would not be relevant to this appeal except that it contains some reflections which bear upon the substance of the appeal.

7.	The Review Judgment, but not the costs Judgment was before HHJ Peter Clark when the matter returned to lift the stay. Judge Clark’s opinion was as follows:

“By its judgment with detailed reasons dated 14 December 2009 the Watford Employment Tribunal comprehensively rejected the Claimant’s complaint of unfair dismissal.
The sole ground of appeal is that at the conclusion of the oral hearing the Employment Judge announced that the Employment Tribunal found in the Claimant’s favour, that reasons for that conclusion were reserved and a date for a remedy hearing was fixed.
As the Judge’s review decision dated 26 January 2010 makes clear, no decision was reached at the close for the hearing.  The decision was reserved.  The remedy hearing date was fixed in case the Claimant won.  She did not.  In any event, the written Judgment is determinative.”

The Claimant was given the opportunity to put in a fresh Notice of Appeal or to have a hearing and she has done the latter.  The matter for me, therefore, is whether there is a reasonable prospect of success.  

Discussion
8.	The conclusion of the Employment Tribunal was that the Claimant’s claim for unfair dismissal failed.  It held that part of her case, which was based upon the Public Interest Disclosure Act 1998 insertions into the Employment Rights Act 1996, was made in bad faith and so the Claimant could not succeed.  

9.	The reasons of the Tribunal were expanded over 31 pages and the Tribunal, in addition to saying that the dismissal was fair, went on, in paragraph 77, to say that even if it were wrong about that and the dismissal were unfair the Claimant contributed 100% to the dismissal and her conduct was such that it would not be just and equitable to award anything to her.

10.	Part of the amended grounds today is a contention that the Claimant raised a grievance on 21 December 2007 and the Respondent did not deal with it and that caused the breakdown in trust.  I can decide that quite simply.  The Employment Tribunal dealt with it at paragraph 72 and said the following:

“The complaint written by the Claimant on 21 December 2007 (at pages 111-113, referred to in paragraphs 22 and 29 above) was made, the Tribunal concluded, by way of a defence to the inevitable disciplinary proceedings which were going to follow in relation to the post-it note set out in paragraph 27 above.  Ms Jones’ investigation of it in the context of the possibility of disciplinary action being taken against the Claimant was therefore in the view of the Tribunal not reasonably objectionable.”

That, in my judgment, is a complete answer to this matter.  The way in which the grievance was put in was described as above.

11.	As to the original ground of appeal there is a simple issue of fact: did the Judge announce a finding in favour of the Claimant at the end of the oral hearing?  The Claimant says he did.  Reality needs to be injected.  This is a Reserved Judgment.  Whatever is said orally before the order is made is subject to the final pronouncement in the order.  The Judgment of the Tribunal is the executive part of the proceedings.  It is signed by the Judge on 14 December 2009 and it expresses a Reserved Judgment.  That means that not only the Judgment but also the Reasons were reserved.

12.	The Judge was asked about the Claimant’s contention that he effectively had stood on his head in that he had pronounced the Claimant’s success. In his decision refusing the review, he said this:

“That which was said on 13 November 2009
I certainly did not say on 13 November 2009 to the parties that the Claimant’s claims were successful.  The Tribunal had yet to make its findings of fact let alone discuss the implications of those findings of fact.  I announced a provisional remedy hearing, which was provisional because it was dependent on a finding in favour of the Claimant.  If the provisional remedy hearing of 4 March 2010 has remained in the Tribunal’s diary as a listing, then that is mistaken, although for the reasons stated below it is helpful in the circumstances that the date remains available.”

13.	I fully understand why the Judge made a reference to a remedy hearing.  If the Claimant were to succeed, following deliberation by the three‑person Tribunal, it would providently have a date for the remedy hearing, but it could be set aside if the Claimant lost following those deliberations, as she did.  The fact that it remained in the list is neither here nor there; that is an administrative matter and I suppose it ought to have been taken out when the Judgment went against the Claimant.  As it happens the listing was used to determine the costs applications.  

14.	The Employment Tribunal itself came back to the issue in its costs Judgment in relation to what had occurred on the day.  It is clear that the lay members of the Tribunal supported the Judge’s decision on the refusal of the review and his account of what happened at the hearing, for at paragraph 7 of the costs Judgment there is this:

“She had not pressed the application in the light of her subsequent discovery that she had been mistaken in thinking that her claims had been successful.”

15.	The answer to the Claimant’s criticism is that the Judge did not, on behalf of the three‑person Tribunal, announce a result in favour of the Claimant at the end of the hearing.  This is clear to me because the Judgment would not say it was reserved, it would say the Judgment was given and Reasons were reserved.  It is most unlikely at the end of the hearing of such a long case which was due to give rise to a 31‑page Judgment that a Judgment would be enunciated without consulting the members. All three of them note the Claimant acknowledged she was mistaken. In any event, the written Judgment itself is the final and authoritative version.
  
16.	The new ground of appeal sought to be raised has no reasonable prospect of success and I will dismiss the application.  As to the original ground, I agree with Judge Clark’s succinct opinion (para. 7 above). The case will be taken no further. Permission to appeal is refused [reasons not transcribed].