Appeal No.	EAT/1255/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 September 2002

Before
HIS HONOUR JUDGE J BURKE QC
MR B R GIBBS
MR J C SHRIGLEY

MR J M STANSBURY	APPELLANT

(1) DATAPULSE PLC	RESPONDENTS
(2) TROY HOLDINGS INTERNATIONAL PLC

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS A REINDORF
(of Counsel)
APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME

MR STANSBURY
(the Appellant in Person)	

JUDGE J BURKE QC

1	Mr Stansbury was employed by the first Respondents as a Project Manager from October 1995 until 20 September 2000.  His claim that he had been unfairly dismissed was rejected by the Employment Tribunal sitting at Reading, chaired by Mr Ross, in a decision sent to the parties with Extended Reasons on 15 August 2001.

2	Mr Stansbury seeks to appeal against that decision and other interlocutory decisions of the Employment Tribunal which were made in response to various applications he made in the course of the proceedings.  This is the Preliminary Hearing of his appeal.

3	He has been represented today, in part, by Ms Reindorf, under the ELAAS Scheme, and we are extremely grateful to her for the succinct and helpful way in which she has put forward arguments in support of one of Mr Stansbury’s grounds of appeal, in a case which must have been difficult for anyone to get to the bottom of at relatively short notice.

4	In his Notice of Appeal, which is dated 21 September 2001, Mr Stansbury includes 18 separate grounds of appeal relating to differing aspects of the various decisions of the Tribunal.  They vary from, for instance, the first in which Mr Stansbury asserts that the Tribunal erred in refusing to order further and better particulars in February 2001 to the 16th, which is an assertion that one of the lay members, in the course of the midday adjournment on the second day of the substantive hearing, expressed his disproval of the Chairman and was apparently in a drunken state; an allegation which Mr Stansbury said could be substantiated by his counsel, Mrs Kavanagh.

5	On 17 April 2002 the Preliminary Hearing of Mr Stansbury’s appeal was first listed.  Mr Stansbury was represented by different counsel under the ELAAS Scheme, who plainly focused, as Ms Reindorf has today, on Ground 16 in the Notice of Appeal, that is to say the allegation of misconduct on the part of one of the lay members and his misconduct or inability, properly and justly, to take a proper part as one of the members of the adjudicating Tribunal.

6	It was not clear, it seems, on that day, whether Mr Stansbury was or was not continuing to rely on other grounds and the other 17 matters set out in the Notice of Appeal, and the Employment Appeal Tribunal ordered that Mr Stansbury should, within 14 days, give notice of what other grounds of appeal, in addition to Ground 16, he proposed to persist in.

7	Mr Stansbury gave Notice within that time, saying that he was continuing to rely on all of the grounds in his Notice of Appeal.  However, in his Skeleton Argument for today’s hearing, he put forward arguments only in respect of 6 grounds or areas which he asks us to consider; one of those is Ground 16 which has been addressed by Ms Reindorf.  In respect of the others we have heard submissions from Mr Stansbury himself.

8	There have been various further applications made by Mr Stansbury to the Employment Appeal Tribunal during the course of the months leading up to today but nothing turns on those for today’s purposes.  We turn first to the specific grounds on which Mr Stansbury now relies and in particular to Ground 16

9	When an allegation of misconduct on the part of the Tribunal is made or when an allegation that something has gone wrong in the course of the Tribunal’s handling of the case in front of them is made, as is the case here in relation to Ground 16 and others, the Appellant is asked by the Tribunal to swear an affidavit, verifying his complaints; and that was done by Mr Stansbury in this case.

10	In paragraph 17 of that affidavit he said that the Tribunal erred as one of the members not only fell asleep during the hearings but during a short break at midday on the second day of the hearing, whilst returning from the toilet, he expressed his disapproval of the Chairman and “it was apparent that he was in a drunken state with an extremely strong aura of alcohol on his breath.  This”, said Mr Stansbury, “can be further substantiated by my counsel to whom the Member expressed his opinion and was also witnessed by the Respondents counsel.”

11	The result of that was that, on 17 April, the Employment Appeal Tribunal further directed that the comments of the Chairman and lay members be sought as to the matter raised in paragraph 16 of the Notice of Appeal and paragraph 17 of the affidavit, and that such comments should be sought as well from the Appellant’s counsel and also from the Respondent’s solicitors.

12	The effect of that Direction has been the production of a substantial amount of evidence in the form of affidavits or statements.  We do not propose for present purposes to go through them all.  There is an affidavit from counsel for the Respondents, who says that she did not observe anything untoward at any stage.  There are similar affidavits from three members of the Respondents themselves who were present at the Tribunal.

13	The Chairman said that at no time was he aware that either of his lay members had fallen asleep, nor did anybody bring such a thing to his attention, nor was he aware that anybody had expressed disapproval of him.  He says that one of the lay members, Mr Eynon, during the course of the hearings, on occasion, had had the smell of alcohol on his breath but that he, the Chairman, had no reason to think this in any way impaired his ability to participate properly in the proceedings.  That of course is an indication from at least that recollection that Mr Eynon had had a drink; but there is nothing of itself wrong in that and if that stood alone it would not substantiate or even tend to substantiate with any real strength what Mr Stansbury says.

14	The first lay member, from whom we have comments, Mr Carruthers, says that he did not observe his fellow lay member falling asleep or making an alleged comment of the Chairman.  He says that he was conscious that his fellow lay member was outspoken on a number of matters to do with the case but these were always resolved by the Chairman in a fair and equitable way.  He does not know whether his fellow lay member took alcohol at any time during the hearing; he did not and he says the words “in a drunken state” are not substantiated.

15	Mr Eynon says that he has never fallen asleep during a hearing although he may close his eyes to concentrate; and the allegations of smelling of alcohol he disputes.

16	So far one might be forgiven for saying that perhaps while one might think it were preferable for eyes not to be shut, although very few judges or members of judicial bodies manage in a long hearing to avoid that at some stage, without of course ever falling asleep, and while perhaps it might or might not be better if the members of a Tribunal did not have a drink in the course of the hearing, there is not much there to substantiate what Mr Stansbury alleges.

17	We turn then to what Mrs Kavanagh said.  In her comments to the Tribunal dated 29 April 2002, she said that she never witnessed any falling asleep nor did Mr Stansbury or anybody else bring that to her attention.  She says that Mr Stansbury never raised the fact that a lay member was plainly drunk with her or her instructing solicitor.

18	As to whether a lay member was drunk, she says this:

5	“On reflection I cannot say whether this member was simply a more animated member than usual, whether he is an eccentric character or whether he was suffering from some medical ailment or whether he was indeed drunk.  However I cannot recall him smelling strongly of alcohol, slurring his words or falling about in a drunken stupor.”

She goes on to say she does recall a slight smell of alcohol on this gentleman’s breath when he was returning from lunch but she says his conduct did not interfere with the hearing.  That plainly does not substantiate what Mr Stansbury alleges.

19	If what we have summarised so far stood alone, we would have thought that it was so unlikely that Mr Stansbury’s allegation was ever going to get home that there was not an arguable case in support of it.  However, Ms Reindorf has shown us what appears to be an unsigned Opinion in Mrs Kavanagh’s name.  It is unsigned we are told because it was sent by email, by Mrs Kavanagh to Mr Stansbury’s solicitors and then sent on to Mr Stansbury by then.  We have seen an email from the solicitors to Mr Stansbury in which they send the Opinion on to him.  On the face of it, it appears therefore that what we have got, albeit unsigned, is genuinely Mrs Kavanagh’s Opinion.

20	In that Opinion she says this:

Another ground for appeal could be that the Tribunal misconducted itself.  In the present case that ground does have some merit because of the actions of one of the Tribunal members who was plainly drunk and not following the proceedings.  In order to do so he is going to have to establish” [the ‘he’ there is obviously Mr Stansbury, we interpolate] “with the Reading Industrial Tribunal the name of that drunken panel member.  My suggestion is that he enquires as to the name of the bald member, thus the drunken member with the other name.”

In that Opinion Mrs Kavanagh is plainly expressing the view and the recollection that one of the members was “plainly drunk”.

21	How it comes about that that appears in Mrs Kavanagh’s Opinion but something rather different appears in her comments of 29 April 2002 is not for us to begin to explore; but we have to say, having considered it at some length and with great care, that the result of those two documents taken together, and looking at all of the documents on this issue, is that we think that here there is an arguable ground and that Mr Stansbury should not be shut out at this stage.  

22	How it will be resolved is something we would not even begin to and should not speculate upon; but in the light of that conflict and in the light of the fact that it appears, on the face of what we have seen, that Mr Stansbury’s counsel has at some stage said that a lay member was plainly drunk, we feel that Mr Stansbury must have the opportunity, however difficult the prospect for all concerned, to put this matter before the Employment Appeal Tribunal at a full hearing.

23	Now we turn, with perhaps greater succinctness, to the areas of appeal put forward by Mr Stansbury in his Skeleton Argument.  The first of those is the point which we have just been addressing and there is no need or reason to say any more about it.  We therefore turn to what Mr Stansbury has called his argument 2; in fact that argument 2 includes two separate criticisms of what happened in front of the Tribunal.
24	Firstly, Mr Stansbury complains that, although the Tribunal had ordered the employers to provide a single bundle of all relevant documents for use at the hearing of his complaint, that was not done.  Mr Stansbury says that he had taken his own documents to the address of the employers’ counsel so that there is no doubt that the employers had them but that those documents were not put in the bundle.  He says that he did not realise this until fairly late on in the proceedings; and indeed he said to us that the bundle was being used during the first day without his documents in it and without apparently any complaint about that by his counsel.

25	On further probing from us, having regard to what the Chairman has said about this point in a response to an application for a review which Mr Stansbury made subsequent to the substantive decision, and which application failed, a very different picture has emerged.  What actually happened was this.  It certainly seems that either all or some of Mr Stansbury’s documents were not put by the employers into the bundle.  They should have put all of those documents, at least insofar as they were relevant, into that bundle, and plainly they erred in not doing so.  But that, of course, did not mean that the case could not go ahead, as though they were in some way debarred from defending the claim.  That sort of thing often happens at a Tribunal hearing; and the Tribunal has to deal with it pragmatically and get on, unless some application for a different course is made, which it was not on this occasion.

26	What in fact happened, as Mr Stansbury has accepted in argument and in discussion with us is this.  Some of Mr Stansbury’s documents were regarded by the Tribunal as irrelevant and therefore excluded from evidence.  Others were relevant and were put before the Tribunal.  They do not seem to have been put into the bundle; but that does not matter at all, so far as the actual hearing is concerned, as long as they were before the Tribunal they were evidence for the Tribunal to consider.

27	As to those which were not put before the Tribunal, on the basis that they were irrelevant, we must remember that Mr Stansbury was represented by counsel at all times during the substantive hearing.  It was for her to complain and to obtain a ruling about those documents, if there was a real issue about them.  It does not seem that she did or that there was any issue taken about them; and Mr Stansbury today has not indicated to us, in relation to any of those documents, how, if they were not before the Tribunal, it would have been relevant that they should have been before the Tribunal.

28	For those reasons this ground of appeal, in our judgment, is not arguable and must fail.

29	We go on from there to consider the next part of argument 2, namely that the Tribunal did not proceed, in addition to the unfair dismissal claim , with Mr Stansbury’s wrongful dismissal claim and with a claim for wrongful deduction of earnings.  

30	Let us turn to the latter first.  So far as wrongful deduction is concerned, this appears to have related to one day’s deduction of holiday pay.  It is not mentioned in the Originating Application.  It emerges for the first time in Mr Stansbury’s witness statement for the substantive hearing and as Mr Stansbury agreed, that would have been raising it well after the 3-month time limit.  There is no record that an application was made to amend.  What seems to have happened is that Mrs Kavanagh, on behalf of Mr Stansbury, simply did not proceed with that part of his claim and had agreed with the Chairman that the Tribunal should proceed on the basis of the unfair dismissal claim only.  We do not see how those events can give rise to any arguable ground of appeal now.

31	We reach the same conclusion about the wrongful dismissal claim.  Mr Stansbury has very fairly accepted that there was nothing in the wrongful dismissal claim which would not have been open for full exploration during the course of the unfair dismissal claim and that there was not any remedy which he could or would not have obtained, had he been successful in respect of the wrongful dismissal claim, nor indeed was there any separate breach of contract which would not have been dealt with had he won under the unfair dismissal claim.  Here, too, it appears that the wrongful dismissal claim, no doubt for the reasons that we have just set out, was abandoned or not pursued by Mrs Kavanagh; and again in those circumstances there can be no arguable ground for appeal.

32	The next matter relates to three attempts by Mr Stansbury to obtain from the Tribunal witness orders.  Those three attempts were met by decisions of the Tribunal on an interlocutory basis refusing his applications for witness orders on 23 February, 19 April and 18 May.  The Notice of Appeal is 21 September.  All of the appeals against those interlocutory decisions are therefore out of time.  We have not heard any reason put before us by Mr Stansbury which would justify us in extending time.  The only reason for delay which he has put before us is that he was unrepresented; but that is not a sufficient explanation, bearing in mind the principles which this Court applies in considering whether to extend time.  Thus we do not see how these parts of the appeal can be countenanced or be regarded as arguable.  In any event the Tribunal gave reasons for its decision in each case and those reasons, on the basis of the information before the Tribunal at the time, do not seem to us to be arguably capable of being impugned on appeal.

33	We next therefore turn to Mr Stansbury’s argument 4 and this is that during the course of his evidence the Respondents’ first witness, Mr Barton, committed perjury, i.e. gave evidence which Mr Stansbury believes to have been untrue, and indeed believes he could demonstrate to be untrue.  Mr Stansbury expected, when he came to give evidence, that the untruth of those matters would be demonstrated by answers that he would give to questions which Mrs Kavanagh asked of him; but he complains that Mrs Kavanagh did not ask those questions.

34	Mrs Kavanagh was representing Mr Stansbury.  She had to decide which questions she wanted to ask or felt should be asked and which she felt should not be asked or she did not want to ask.  Her failure to ask questions, although Mr Stansbury perhaps wishes to be critical of her conduct of this part of this case and indeed for all we know others, cannot now be the subject of an appeal.  She was his Counsel, she was acting for him and she decided how to run the case.

35	In any event, so far as perjury itself is concerned, it was for the Tribunal to find facts and to decide which witnesses they wished to believe; and we see no arguable ground of appeal rising from Mr Stansbury’s argument 4.

36	His argument 5, as Mr Stansbury has accepted, is really one which does not add very much to the point about the documents and the bundle which we have already dealt with.  Mr Stansbury complains that by failing to deal, as they should have done and were directed to do, with the compilation of the bundle, the employers were in contempt of the Court’s Orders.  Whether they were or were not really does not matter now.  That would not give Mr Stansbury a ground of appeal against the decision which the Tribunal made.

37	As we have already indicated it was for Mr Stansbury’s counsel to decide whether she wanted to make some application or not in relation to those documents.  In fact what happened was that the Tribunal proceeded in a sensible and pragmatic way in the way in which it handled those documents.

38	Finally, in his argument 6, Mr Stansbury points out that in their Interlocutory Order of 19 February 2001, the Tribunal, when ordering the compilation of the single bundle, specifically noted that “without prejudice” documents should not be included in that bundle.  At least one, if not more, such documents were included within the bundle and that should not have been the case.  In that respect, again, (if this is what happened as it seems it was) the employers were at fault; but that fault of itself would not have led, necessarily, to an injustice in the course of the proceedings.

39	What then happened was that, during the course of the hearing, one of the advocates (no doubt the employer’s advocate) referred to one of these “without prejudice” documents and the Tribunal, or at least the Chairman, saw that documents.  An objection was made on the basis that it was a “without prejudice” document, the Chairman accepted that that was so and excluded it from the evidence.  It does not play any part in the Tribunal’s decision.

40	That does not either give rise to any arguable ground of appeal.  It is regrettable that, sometimes, irrelevant or “without prejudice” documents get before a Court or Tribunal; but it happens and Courts and Tribunals are experienced in looking at documents which are not relevant for them to consider or are inadmissible and, having been told and accepted that they are irrelevant or inadmissible, simply putting them out of their minds.

41	If it turns out in their decision that a document which was irrelevant or inadmissible has played some part in that decision, then of course the position is different because then the Tribunal has not succeeded in putting the document out of their mind.  But that is not the case here.  For those reasons there is no arguable ground of appeal under this head of Mr Stansbury’s complaint.

42	He does not pursue any of the others, therefore all of the grounds of appeal are dismissed save for Ground 16.  On Ground 16 we decide, for the reasons that we have set out, that this is a matter which should go forward to a full hearing.

43	It would be unwise to give any directions at this stage at all – even as to category.  What should happen is that there should be an inter partes hearing, that means a hearing with both sides present, at which how this appeal is going to be dealt with needs to be addressed.  Who is going to provide evidence?  In what form?  Is there going to be cross examination?  How is the evidence of this Tribunal to be approached?  It seems to us that that is something which ought to be dealt with as between the parties and not on a unilateral basis.