Appeal No. EAT/1453/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 May 2001

Before
SIR CHRISTOPHER BELLAMY QC
MISS A MACKIE OBE
MR G H WRIGHT MBE

MR M BIBBY	APPELLANT

HUREL-DUBOIS UK LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	No appearance or 
representation by or on
behalf of the Appellant 	

SIR CHRISTOPHER BELLAMY QC

1	This is an appeal by Mr Edwin Bibby against the decision of the Chairman of an Employment Tribunal at Manchester, Mr Creed sitting alone, striking out the Appellant’s claim against Hurel-Dubois Ltd, his former employer, on the grounds that the Appellant had conducted himself vexatiously in the proceedings in breach of Rule 13, paragraph 2(e) of Schedule 1 of the Employment Tribunals Constitution and Rules of Procedure Regulations 1993, as amended.  

2	The matter was heard in the Appellant’s absence on 31 August 2000.  Summary Reasons were given on 21 September 2000.  An application for a review was rejected on 28 September 2000, and Extended Reasons were given on 31 October 2000.  

3	In this appeal the Appellant advances, in essence, two arguments: (1) that the Chairman was biased, and (2) that there has been a breach of Article 6.1 of the European Convention for the Protection of Fundamental Rights and Freedoms contrary to the Human Rights Act 1998.  

4	The matter comes before us today by way of an ex-parte preliminary hearing to determine whether the appeal discloses an arguable point of law.  It is only if there is such a point of law that this Employment Appeal Tribunal has jurisdiction to proceed to hear the appeal.  

5	By a letter of 10 May 2001, the Appellant informed the Tribunal that for financial reasons he was unable to attend the appeal.  Nevertheless, he submitted a Skeleton Argument which sets out his case.  We have read the Notice of Appeal and there is also extensive documentation before the Appeal Tribunal, including documents produced by the Appellant, and the documents attached to the Chairman’s comments dated 22 December 2000, on the Notice of Appeal and on Mr Bibby’s supporting affidavit dated 9 December 2000.  Each member of the Employment Appeal Tribunal has carefully considered all those documents.  

6	The background circumstances are that the Appellant worked for his former employers for some considerable number of years and his employment came to an end.  By his original IT1, dated 18 January 2000, he claimed unfair dismissal, and there were a number of later amendments to his case.  The Respondents contend that his employment was terminated by consent on grounds of his ill-health.  It is common ground that he has suffered a breakdown and does suffer from ill-health.  

7	According to the Extended Reasons given by the Employment Tribunal on 31 October, this case had a somewhat unfortunate history.  The Tribunal explains the history of the application in paragraph 3 of that Decision, and paragraph 4 deals with what are described as “Relevant correspondence of threats”.  It is said that the Tribunal was provided with the correspondence by Miss Howard, on behalf of the Respondent employers, and by Mr Berry on behalf of Mr Greenhalgh and Dr Durkin who were two potential Respondents to the proceedings, specifying threats which had been made against both representatives, potential witnesses and officers of the AEEU union.  

8	The Employment Tribunal finds that those threats were serious and extensive; the Tribunal has also stated that it was aware that there was an appeal hearing pending in the Crown Court concerning a finding of harassment against Mr Bibby, in respect of a local government agency.  

9	The hearing of 31 August 2000 was therefore convened in order to consider whether to strike out the Originating Application on the grounds of Mr Bibby’s vexatious conduct, as well as to consider whether to join Dr Durkin and Mr Greenhalgh as Respondents to the proceedings.  As regards Dr Durkin and Mr Greenhalgh, the Tribunal found that there was no basis in law for joining those persons as Respondents to the application. 

10	More particularly, for present purposes, the Chairman went on to consider whether there were grounds to strike out the Originating Application on the grounds that the Applicant had behaved scandalously and vexatiously in his conduct in the proceedings, and the Tribunal was apparently provided with information by Miss Howard and Mr Berry on behalf of the Respondents and the AEEU union in the matter, although the Appellant himself was not present at this hearing.  

11	The information in the Tribunal’s possession is set out in paragraph 8 of its Decision, which states:
“The Tribunal was informed about a variety of matters in the course of the hearing:-
(i) The applicant had behaved in an insulting, defamatory and distressing manner, both in correspondence and with his dealings with a number of officers of AEEU union.  The applicant had behaved in such a manner towards:-
(a) Mr Greenhalgh who was a local officer of the union,
(b) Mr Northey and Mr Cooney and Mr Pagan who were all regional officers of the union,
(c) Mrs Sybil Supulveda, a national officer, and
(d) Mr Gomez, the Chief Executive of the union.  
      The applicant had also acted in a similar fashion in his dealings with employees of Messrs Thompsons, solicitors, who acted for the AEEU union.  This conduct was shown towards Mr Berry who acted in the litigation of the union.  
(ii)  The applicant had threatened officers and employees of the respondents during the course of the litigation.
(iii)  The applicant had behaved in a threatening manner towards Miss Howard, the EEF representative who acted for the respondents during the course of his litigation.  He had been abusive to her in his letters and in his conduct and dealings with her.  The abusive letters were addressed to her personally.  He had threatened her over the telephone as a result of which she had required police assistance.  The EEF organisation had been advised by the police to increase security at their premises in the light of the applicant’s conduct, and had taken steps to protect their premises.  The applicant made personal threats against Miss Howard concerning her personal life.  He had made allegations about her personal life to her line manager and to other members of the EEF organisation.  The allegations were without foundation and untrue.  Miss Howard had been forced to take independent legal advice and had requested police assistance on other occasions as a result of the applicant’s conduct towards her.  She expressed genuine fear for her safety.  Her demeanour at the hearing demonstrated her anxiety.
     The Tribunal was aware that the applicant was subject to a suspended sentence arising out of a criminal conviction in respect of harassment.  This matter was the subject of a Crown Court appeal at a hearing which had not taken place by the time the Tribunal considered these applications.  Miss Howard had informed the respondents of personal difficulties that she was encountering from the applicant and had expressed her concerns in representing their interests.  
(iv) The applicant alleged bias by the Employment Tribunal in granting the adjournment in respect of the hearing on 28 July 2000 and referred to the proceedings as “a farce”

On that basis the Tribunal found at paragraph 9 of its Decision as follows:
“The Tribunal was satisfied on the balance of probabilities that the applicant had acted vexatiously in the conduct of the proceedings in the circumstances.  The Tribunal was satisfied that he had behaved abusively and unreasonably in his dealings with employees of the respondents and their officers, towards the respondent’s representative and other officers of the EEF north west organisation, towards officers of the AEEU union and towards the solicitors acting for that union.
The Chairman was satisfied on a balance of probabilities upon an interpretation of the rules that “in the conduct of the proceedings” included not only the full hearing but also the conduct of the litigant from the date of presentation of the application to the Employment Tribunal, up to, and including, the hearing itself.  
The Chairman was satisfied on a balance of probabilities that it was appropriate to strike out the Originating Application by reason of the applicant’s conduct in the circumstances.  The Chairman invoked the provisions of Rule 13(2)(e) of Schedule 1 of the Rules and struck out the applicant’s claim on the grounds that he had behaved vexatiously in his conduct with the proceedings.”

12	Taking first the Decision of the Employment Tribunal with the Extended Reasons which have just been set out, it is plain that the Tribunal had before it extensive evidence of vexatious conduct on the part of Mr Bibby.  On the basis of the facts as found by the Tribunal in that Decision, we can detect no error of law in the Tribunal’s Decision to strike out the proceedings on the basis that the Applicant had behaved vexatiously in his conduct of the proceedings.  

13	That leaves, in effect, the two arguments advanced by the Applicant, namely that the Chairman, Mr Creed, was biased against him and that there has been a breach of the Human Rights Act 1998.

14	In relation to the allegation of bias, the essence of Mr Bibby’s case is that the Chairman was biased because he had granted the Respondents an adjournment of the original date of the hearing from 28 July 2000 to 31 August 2000, although he had refused Mr Bibby’s request for an adjournment of the date of 31 August 2000, which Mr Bibby had asked for, on the grounds that he was due to attend the Crown Court on the following day, 1 September 2000. 

15	In that respect the question of the circumstances in which the matter was adjourned, and the reasons that the Chairman gave for deciding the matter as he did, are set out notably in the Chairman’s reasons for rejecting the Applicant’s request for a review of the original Decision sent to the parties on 21 September 2000.  The Chairman’s Decision on the application for a review is dated 28 September 2000 and in that Decision it is said in paragraph 5 that the hearing had originally been arranged for 28 July 2000, and the application was adjourned at the request of the Respondents who were not in a position to proceed on that date.  The parties were advised of the postponement and given the alternative date of 31 August by a letter dated 17 July 2000.  

16	Apparently the Applicant objected to the postponed hearing, putting his objections in writing by a letter dated 18 July 2000, informing the Tribunal that he had a Crown Court appearance on 1 September.  He contended that the hearing set for 31 August was:
“not acceptable, I will not attend on that date”
 and he added:
“If you find any of my requests impossible, then I suggest you cancel the whole thing, as the LIES of Sandra Howard are getting impossible to put up with any longer.”

17	The Applicant’s request for an adjournment of the hearing set for 31 August was then refused and the reasons were set out in a letter from the Tribunal dated 26 July 2000.  In that letter, the Chairman expressed the view that he could see no reason why the Applicant could not attend the hearing on 31 August notwithstanding that there was a Crown Court appeal to be heard on 1 September.  

18	On 27 July the Applicant was advised in writing, about his conduct at the proceedings.  He was warned that the Tribunal had power to strike out the Originating Application for his conduct if he behaved scandalously, frivolously or vexatiously in the proceedings and he was warned about the Tribunal’s powers on costs.  

19	In reply to the Tribunal, the Applicant wrote back on 28 July 2000 and in that letter he stated:
“I knew a postponement would be refused, the obvious bias treatment has been obvious from the start.  I HAVE ALREADY INFORMED YOU THAT I WILL NOT ATTEND ON 31/8/00.”

He acknowledged the Chairman’s observations about “scandalous and vexatious conduct”, but added:
“I have no confidence in a fair hearing.  I refuse to attend on 31/8/00, for the reasons given in my last letter, dated 18/7/00.  
If I am struck out for this, then so be it.  BUT I vow to you now Sir, the evil men who mistreated me will pay some how.  Their lies will backfire on them; they will be caught out for the liars they are.  Then people will realise I spoke the truth.  
I WILL NEVER GIVE UP UNTIL I GET SOME SORT OF JUSTICE.  THEY HAVE DESTROYED MY FAMILY, AND OUR LIVES.
I will fight until the day I die, regardless of this farce of a Tribunal.”

20	On the basis of those facts, the Chairman was satisfied that the Applicant had deliberately chosen not to attend the hearing on 31 August 2000.  The sole reason he gave for not attending the hearing was that he had another Court appearance arranged for 1 September, but his request for a postponement of the Tribunal hearing on 31 August 2000 had been refused.  That decision was notified to him in writing.  

21	The Chairman also found that the Applicant at no stage before the 31 August hearing indicated that he was attending a conference on that date in connection with the Crown Court appeal.  In that respect, the Applicant had subsequently alleged that he could not attend on 31 August because he was attending a conference with Counsel on that date but there is no evidence in the file which suggests that the Applicant had given that reason to the Tribunal, before the hearing on 31 August.

22	The Chairmen then concluded that the Tribunal was satisfied that the Applicant had been advised of the date of the hearing on 31 August, but had decided not to attend.  He was aware of the nature of the application to be considered on that date, since details of those matters were contained in correspondence which had been sent to him of which he had acknowledged receipt.  

23	The Tribunal acknowledged that he was not present at the hearing, but concluded that he had taken that decision in full knowledge of what was being considered at that time.  On that basis, the Chairman refused the request for review.

24	In our judgment it is impossible to infer from the circumstances that there was any bias in the Decision of the Employment Tribunal to go ahead with the hearing on 31 August 2000.  There is no reason to suppose bias from the fact that the Respondents were granted an adjournment from the original date of 28 July, but the Tribunal considered it necessary to proceed on 31 August.  That is not evidence from which we can infer any bias whatever on the part of the Tribunal Chairman.  In respect, therefore, of that specific matter, we have to hold that the Appellant has not produced any element sufficient to raise in our minds any arguable point of law that could be based on the bias of the Tribunal Chairman in relation to the adjournment of these proceedings to 31 August.  

25	The second matter that the Appellant relies on is a letter dated 20 July 2000 which was sent to the Regional Chairman by Miss Howard who represents the Respondents in this matter.  In that letter Miss Howard complained about the Applicant’s actions in relation to her, and she alleged that she had suffered harassment from him; that allegations had been made about her professional and personal integrity, and that that matter was causing her considerable anxiety, and that she was worried for her safety.  It does appear that that letter was not supplied to the Applicant before the hearing on 31 August 2000, Miss Howard having requested that the letter not be copied to the Applicant “for obvious reasons”.  In our judgment it was an understandable decision on the part of the Regional Chairman not to copy that letter to the Applicant because of the need notably to protect Miss Howard’s safety.  

26	There is, however, no evidence that the Tribunal in the present case decided to strike out the action for any reasons other than the reasons that are very fully set out in paragraph 8 of the Tribunal’s Decision, which all relate to matters that the Tribunal was informed of in the course of the hearing.  That being the case, we cannot detect any error of law arising from the circumstances surrounding the letter of 20 July 2000.  That is an insufficient basis on which to infer that the Tribunal has fallen into error, procedurally or otherwise, in deciding to strike out this application as vexatious.  In particular we can find no evidence that that letter, or any other aspect of these proceedings, is such as to indicate bias against Mr Bibby on the part of the Tribunal, its Chairman or the Regional Chairman.  

27	We have also been unable to identify, in those circumstances, any breach of the Human Rights Act 1998, taking into account Article 6 of the Convention.  In those circumstances, our unanimous decision is that this appeal must be dismissed.