Appeal Nos. UKEAT/0159/11/JOJ
UKEAT/0191/11/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 2 August 2011

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MR J SHEA	APPELLANT

MICROS FIDELIO	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – APPELLANT ONLY

	APPEARANCES

For the Appellant	MR JOE SYKES
(Representative)
Employment Lawyers
107 Fleet Street
London
EC4A 2AB

	
For the Respondent	Written Submissions	

SUMMARY
VICTIMISATION DISCRIMINATION – Whistleblowing
PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity

It is reasonably arguable that a litigant in person who said his claim was wrongful dismissal did not give away a claim of unfair dismissal, and as a matter of construction the claim included a PIDA claim. Submissions would be made as to whether the case had been narrowed to wrongful dismissal in two earlier CMDs, unappealed. If there were truly a claim of unfair dismissal and detriment the Judge-alone hearing would be ultra vires.

HIS HONOUR JUDGE McMULLEN QC
Introduction
1.	This is an appeal by Mr Shea, the Claimant in proceedings below, against the Judgment of Employment Judge Burgher, in which the Judge decided that the Claimant was not bringing an unfair dismissal complaint.  It is contended that, by reference to the claim form and supporting documents, what is to be reasonably discerned is a claim under the PIDA provisions of the Employment Rights Act 1996 for unfair dismissal and for detriment.  The Claimant was in person at the hearing and conducted his own correspondence, but was represented in an initial claim to the employer, and that initial representation was embodied in the claim form.  In my judgment, it is reasonably arguable that as a matter of construction the Claimant was raising a claim of unfair dismissal and unfair detriment under the PIDA provisions.  It should go to a full hearing for this matter to be determined.

2.	The problem, however, is that the Claimant gave away his case, for he insisted that this was a wrongful dismissal claim. Acting upon those words but not in respect of a broader approach taken in the documents, Employment Judge Haynes gave two directions on 10 November 2009 and 18 February 2010.  The decision was that this was a breach of contract claim and it was directed to a judge-alone hearing.  Since the Claimant had been paid his notice pay, which was the only remedy for such breach of contract, and he was asked whether he still wished to pursue the claim and he said he did, using the words, “continue my appeal of wrongful dismissal.”

3.	At the full hearing before Employment Judge Burgher sitting alone steps were taken to determine what the issue was.  Mr Sykes, who appears on behalf of the Claimant today, contends that there would be no need for Judge Burgher to do that if the decision of Judge Haynes had not required any further clarification. Judge Burgher, at the outset and then again after hearing submissions, decided that this case was indeed as defined by Judge Haynes, and so dismissed the claim and ordered costs to be paid.  

4.	He was asked to review the decision, and in a Review Judgment sent on 21 August 2010 it is said that the Claimant did not allege that his treatment was on the grounds of a protected disclosure.  In a witness statement produced before me it is said that these words were put into the mouth of the Claimant when he disavowed unfair dismissal.  The Notice of Appeal was referred by Bean J to a preliminary hearing, and so the issue before me is whether there are reasonable prospects of success.

5.	The Respondent has put in written submissions, as invited by Bean J and in relation to a second matter for which I gave directions. These go beyond a concise argument combating what was said in the Notice of Appeal.  For example, there is an allegation that the disclosure made by the Claimant is not protected because it was not made in good faith; there is of course no evidence at all about that and I disregard it.

6.	The point about the user‑friendly environment of the Employment Tribunal is that a litigant in person is entitled to generous treatment.  Nevertheless, there is a limit to what an Employment Judge should do faced with an articulate, computer‑literate professional person, albeit inexperienced in employment proceedings. Time and again both he and his one‑time representative said this was a claim of wrongful dismissal.

7.	In my judgment, it is arguably wrong to hold a Claimant to a claim so expressed.  One has only to look at the treatment of the Court of Appeal’s Judgment by the media in respect of Ms Shoesmith, which was said to be an unfair dismissal, whereas of course it was a judicial review.  It is reasonably arguable that the term “wrongful dismissal” in these proceedings may have been used interchangeably with “unfair dismissal”, and a litigant in person might be given a good deal of leeway.  The question is whether the Judge erred in law in not doing so.  

8.	Not in the Notice of Appeal, and therefore not in the submission of the Respondent, but which has arisen in argument this morning which I put to Mr Sykes, is the point that decisions were made by Judge Haynes, setting this case along the tramlines to a single‑Judge hearing for wrongful dismissal.  If it is right, then all Judge Burgher was doing was carrying out the pre‑hearing CMDs.  I bear in mind the eighth guideline of Mummery LJ in Gayle [2011] EWCA Civ 928 indicating that where legally possible case management decisions of the Employment Tribunal should not be overturned.  It seems to me that there may be an argument that the two orders by Judge Haynes, which were not the subject of appeal, controlled the outcome of the hearing before Judge Burgher.

9.	The other issue is that if this is a case of unfair dismissal or PIDA detriment, and if the orders of Judge Haynes did not dispose of it, then this could not lawfully be determined by a judge alone: Employment Tribunals Act 1996 s4.  The strengths of the case are matters for a three‑person Employment Tribunal (for example, dealing with the Respondent’s submission that the allegation made by the Claimant was not in good faith), but that would have to be dealt with on a different occasion. Both of those issues therefore will require determination, and so this will go to a three‑person EAT, category B, half a day.