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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Butcher v Salvage Association [2002] EWCA Civ 867 (31 May 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/867.html Cite as: [2002] EWCA Civ 867

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(Mr Recorder Langstaff QC)

		Royal Courts of Justice Strand London WC2A 2LL Friday, 31st May 2002

Friday, 31st May 2002

1. LORD JUSTICE PETER GIBSON: Mr Butcher applies for permission to appeal from part of the order of the EAT on 21st January of this year when Mr Recorder Langstaff QC presided in the EAT. That was at a preliminary hearing of Mr Butcher's appeal from the decision of an Employment Tribunal. The EAT allowed the appeal to go to a full hearing but on limited grounds. Mr Butcher wishes the grounds which are to be dealt with by the EAT at the appeal hearing to be the wider grounds which he had advanced in his Notice of Appeal to the EAT.
2. I summarise the background facts in this way. Mr Butcher was employed by the respondent, the Salvage Association, as its Chief Financial Officer from 27th April 1992 to 19th May 2000 when he was dismissed. The respondent's business is that of supplying marine surveying services principally to underwriters in London. Mr Butcher reported to the Chief Executive. From 28th April 1999 that was Mr Padgett. The Chief Executive in turn reported to the Chairman, Mr Davies. Prior to becoming Chief Executive, Mr Padgett produced a business study of the respondent, recommending changes to the way the respondent was run. He was appointed Chief Executive to implement changes along the lines which he had recommended and to create a viable self-financing organisation. That was a significant change of direction for the respondent. Mr Padgett unfortunately disagreed with the way Mr Butcher presented financial reports to the Governing Committee, the Executive and Finance Board. A particular point of contention was the treatment of receipts from the sale of a subsidiary known as RJA. Mr Padgett suggested that Mr Butcher adopt a different style. The choice of styles was presented to the Committee. The Committee approved the style which Mr Padgett recommended. No pay increase was recommended for Mr Butcher that autumn by the pay review panel of the respondent on the ground, the respondent says, of his performance. Seven days later on 26th October 1999 Mr Butcher, at a meeting with Mr Davies, raised the concern that he would not be willing to provide information that he knew to be materially misleading. He suggested to Mr Davies that Mr Padgett had asked him -- that is Mr Butcher -- to change figures and the monthly management reports to the Board in a way which Mr Butcher believed would be misleading. The particular point again was the treatment of the surplus cash from the sale of RJA.
3. Mr Butcher instructed solicitors in December 1999. He was allowed to address the Committee about his complaints but the Committee did not accept them. On 19th May 2002 he was dismissed. The respondent said that the grounds were his continued under-performance and his inability to fulfil the requirements of his position.
4. He applied to an Employment Tribunal. He complained of unfair dismissal and he raised the question whether the reason given for his dismissal was inadequate or untrue. He explained that he believed that his raising of his concerns with the Chairman and the Committee constituted a qualifying disclosure within section 43B of the Employment Rights Act 1996 and that the principal reason for his dismissal was that disclosure. He therefore claimed unfair dismissal pursuant to section 103A.
5. He was allowed to amend his IT1 to add "PID" as a third complaint. As I understand it, he was saying that he was relying on public interest disclosure pursuant to the Public Interest Disclosure Act 1998, though that to my mind appears to be implicit in his second complaint about the reason for his dismissal where he makes clear that it was, in his view, because of a qualifying disclosure.
6. The respondent resisted the application. The respondent said that the reason for dismissal was capability or some other substantial reason.
7. The hearing of those complaints by the London Central Tribunal extended for no less than eight days. Mr Butcher appeared in person, though a barrister friend assisted him and on one day appeared for him. The Tribunal by a decision sent to the parties on 4th July 2001 found that Mr Butcher was dismissed for a reason falling within section 98(1)(b), that is to say some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. The Tribunal explained that that other reason was that there were irreconcilable differences between Mr Padgett and Mr Butcher. But the Tribunal went on to find that the dismissal was both substantively and procedurally unfair. The Tribunal did not accept the primary argument of the respondent that capability was the reason.
8. The Tribunal also considered under the heading "protected disclosure", Mr Butcher's section 103A claim. The Tribunal referred to section 43B and set out the definition it contains of a qualifying disclosure. The Tribunal then said this:

"It is not possible properly to identify from the facts alleged by the Applicant in his Originating Application as supplemented by Further and Better Particulars or in the evidence adduced on his behalf a disclosure of information which in the Applicant's reasonable belief could tend to show a failure to comply with any legal obligation, as is suggested. It is rather the case that the evidence (both expert and factual) adduced by the Applicant falls short of asserting anything more than the existence of a professional obligation on the facts of the case. Both experts called by the parties agreed that there was no relevant legal obligation arising out of the facts of the case, and Mr Taylor, for the Applicant, confirmed that the professional obligation to which he referred in his report was not the same as a legal obligation. Furthermore, the way in which the Applicant has put his case is limited to a concern to act professionally at all times; it is purely contrived to seek to promote an issue as to professional ethics into a legal obligation."

9. They then set out the differences between Mr Butcher and Mr Padgett on the way financial information was to be presented. They point out that the information was to be included in management accounts of the most basic variety which were not presented to any third party. They contrasted that with the statutory accounts which required a different procedure.
10. They continued:

"The Applicant sought to imply the incorporation of professional ethics into his employment contract so as to give rise to a legal obligation in this context. However, as he was acting pursuant to the instruction of the Committee and the Chief Executive there was no requirement arising from his employment contract to provide information other than in the form requested. Furthermore, in its letter of 27 January 2000 it was pointed out that any differences of opinion between him and the Chief Executive on the validity of the presentation of figures should be resolved within the executive, if at all possible, and if there were any points which could not be resolved, then it was the Applicant's professional duty to bring them to the attention of the Board or Committee."

11. They said that Mr Butcher contributed to his dismissal "by his general demeanour and approach which was interpreted by the respondent in terms that he was not making an effort to make things work". They assessed his contribution to his dismissal in percentage terms as 50%.
12. The arguable inadequacy of that final conclusion formed the basis on which the EAT on the appeal to them granted permission to appeal limited, in effect, to that point, although they allowed within it the ground that the Tribunal may have given too strong an indication of their thinking when expressing a view, before they had heard submissions, as to the likely percentage of contribution. Mr Butcher, however, raised a number of other grounds when appealing to the EAT. He complained that the EAT should have found that he was dismissed for whistle-blowing and so his dismissal should have been held unfair under section 103A. He said that that gave him a distinct right of appeal. But the EAT rejected that. He had further argued that the assessment of the contribution might have been different if he had been found to have made a qualifying disclosure and he suggested that the Tribunal had misappreciated the evidence. That too was rejected on the basis of the findings by the Tribunal in the passages of their decision which I have already quoted. He also complained of bias by the Employment Tribunal and the Employment Tribunal Service in that his Public Interest Disclosure Act claim should have appeared in the Register of Tribunal applications at a stage which would permit members of the public to attend the Tribunal's hearing. He in effect alleges a conspiracy to prevent the public from knowing about the basis of his appeal. The EAT said that there was no evidence entitling them to conclude that the Tribunal which determined his claim was in any way affected by anything that had happened before. Mr Butcher also complained of bias by the Tribunal in the conduct of the hearing. The EAT found no force in that, saying that no right-thinking member of the public would conclude that there was any serious risk of injustice being done to Mr Butcher.
13. For his application to this court Mr Butcher has produced five pages of grounds of appeal plus a 17-page skeleton argument. He has addressed me this morning, thoughtfully providing me with his speech which was then largely read out. Much of that, I am afraid, just went to the background of the case with which I was well familiar. But he added to his submissions in his skeleton argument and the grounds of appeal when responding to questions from the Bench. I will concentrate on the most significant points which, it seems to me, he seeks to raise.
14. He says that the Employment Tribunal when rejecting his claim regarding the alleged public interest disclosure and in holding that it did not include any failure to comply with a legal obligation made no finding of fact but made an error of law. I cannot agree. I have already set out what the Employment Tribunal found. Mr Butcher had failed to identify information which he could reasonably believe tended to show a failure to comply with a legal obligation, as distinct from a professional obligation. Therefore section 43B(2) was not engaged. Mr Butcher, in response to my request that he should identify the legal obligation, said it was because he had under his contract of employment to remain a Chartered Accountant and that he was obliged, in order to remain a Chartered Accountant, not to knowingly mislead his employer. The difficulty with that is that, as the Tribunal has explained, what Mr Butcher was asked to do by Mr Padgett (and the Committee approved) could not mean that if he complied with that request he was misleading the employer because the employer had asked that information should be produced in this particular way. He could have taken up any particular point with the Board or Committee if he felt strongly about it, but instead he sought to rely on an ethical or professional point. In my judgment it would be impossible for him to lose his certificate as a Chartered Accountant if he complied with Mr Padgett's instructions. He said that an EAT decision, Parkins v Sodexho Ltd [2002] IRLR 109, showed how widely the legal obligation should be construed. But the actual decision was that there is no reason to distinguish a legal obligation arising from a contract of employment from any other form of legal obligation. The EAT certainly did not suggest that anything short of a legal obligation would suffice. Moreover, the fact that there was no legal obligation was supported by the views expressed by the experts, including his own expert, Mr Taylor. Mr Butcher has produced a witness statement from Mr Taylor seeking to qualify the answers which he gave to the Tribunal. But witnesses cannot be allowed on appeal to do that. There would be no end to litigation if that were permissible. Of course the Tribunal would know that Mr Taylor was not a legal expert, but they were entitled to take his views into account on a matter such as this relating to professional standards. I therefore see no real prospect of success on that ground.
15. Then Mr Butcher said that the Tribunal should first decide whether or not an applicant was unfairly dismissed and then they should decide whether the reason for the dismissal was that the applicant had made a protected disclosure. I am afraid that that is a simple misconstruction of the law. The scheme of the unfair dismissal provisions in Part X of the 1996 Act is this. An employee has the right not to be unfairly dismissed by his employer (section 94(1)). Section 98 deals with what happens next. The employer has to show the reason for the dismissal and that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal. If the employer does show such a reason, then the Tribunal goes on to consider in the ordinary case whether the dismissal is fair or unfair having regard to the reason shown by the employer, and that depends on the matters specified in subsection (4). However, subsection (4) is subject to certain other provisions, including section 103A, and that provides that an employee who is dismissed is to be regarded as unfairly dismissed if the reason, or the principal reason, for the dismissal is the protected disclosure. It is therefore quite wrong to suggest that the Tribunal decides the question of unfair dismissal without regard to the reason. The reason is crucial in determining what is or is not an unfair dismissal. In the present case the Tribunal made the finding what was the reason for the dismissal. Unfortunately for Mr Butcher, it was not the reason which he had advanced. That is the real complaint by Mr Butcher. For my part, I see no error in the approach of the Tribunal on this matter.
16. Then Mr Butcher said that the EAT had no power to delegate its jurisdiction to a preliminary hearing. In Miriki v General Council of the Bar (a decision of this court on 21st December 2001), the court said this in paragraph 26:

"S. 30(3) Employment Tribunal Act 1996 allows the appeal tribunal to regulate its own procedure subject to the Rules and it is pursuant to that power that the Employment Appeal Tribunal Practice Direction was issued in 1996. Paragraph 14 of the Practice Direction provides what is to happen at preliminary hearings of appeals. By subparagraph (4):

`If satisfied that a reasonably arguable point of law is established, the appeal tribunal will give appropriate directions ... to enable the appeal to proceed to a full hearing without unnecessary delay on all or only some of the grounds of appeal.'

That is the authority pursuant to which appeal tribunals in appropriate cases limit the grounds of appeal to those which raise reasonably arguable points of law. If the appellant is dissatisfied with the appeal tribunal's decision so to limit the grounds of appeal, the appellant should seek to appeal the decision to this court."

17. Therefore this court approved the procedure which allows the EAT at a preliminary hearing to refuse to allow an appeal to proceed on some of the grounds advanced. Mr Butcher's main point appears to be a complaint that the EAT rejected his claim of bias without, as he puts it, proper judicial process. As I understand him, he says that the EAT should hold a trial within a trial and that witnesses should be heard so that the complaint can be fully investigated. That is certainly not the practice of the EAT, nor is it that of this court when it is faced with an allegation of bias in a lower court. What the complainant must do is to show by credible evidence that the allegations are made good. Mr Butcher has put in evidence relating to bias. He has put in his own evidence and that of two witnesses (Mr French and Mr Carpenter) on the facts which are said to constitute bias. I have to say that, having read that evidence, I am wholly unpersuaded that it shows an arguable case of bias.
18. In his evidence, Mr Butcher submits that the Tribunal was likely to have been wrongly influenced by the actions of the Employment Tribunal Service and an unnamed Chairman in relation to the failure to put promptly on the register a reference to the public interest disclosure claim. The EAT pointed out that it is impossible to see how anything to do with what was or was not on the register affected the decision of the Tribunal which heard Mr Butcher's complaint, and Mr Roose, the Chairman of the Tribunal, has said that he had nothing to do with that.
19. Mr Butcher's complaint is that Mr Roose was guilty of bullying and bias. The high point of that allegation appears to be a question which Mr Roose posed: "Who is running this case? Mr Butcher or the Tribunal?" Mr Roose's comment after the hearing, when told of the accusation of bias, was this:

"I was not belligerent towards Mr Butcher. I did however indicate that the Tribunal did not welcome a lost day when he ran out of witnesses as early as 11 am one morning and there was no alternative but to adjourn."

20. It appears that what happened was that a particular witness of Mr Butcher had indicated that he was unable to be present that day. In the Tribunal's decision they had found that Mr Butcher "could be trying on occasions". To the objective observer, Mr Butcher at times appears preoccupied with unimportant points of detail. If Mr Roose showed signs of irritation with Mr Butcher, as he may have done, that seems to me to fall well short of the legal requirement of bias. The legal requirement of bias, as has recently been reaffirmed by this court in Taylor v Lawrence (4th February 2002) is that, having ascertained the circumstances which have a bearing on the suggestion that the tribunal were biased, the court must ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal were biased. Mr Butcher has told me this morning that Mr Roose had explained on one day that he had made certain arrangements (I think to go on holiday) and that, if the hearing was not completed within the time allotted, that might interfere with those arrangements. Mr Butcher has told me that it did not seem to him, Mr Butcher, that that was appropriate.
21. Tribunals are required to ensure that time is not wasted. Very often they have to make comments on the course of the proceedings and intervene, particularly when there is a litigant in person, in a way which the litigant may not always appreciate. The Tribunal are the masters of the proceedings before them. It requires clear evidence that what the Tribunal did exceeded what was proper for a fair-minded and informed observer to conclude that there was an appearance of bias.
22. Perhaps the strongest point against there being such bias lies in the fact that Mr Butcher won his case in the Tribunal. In his comments on Mr Butcher's allegations of bias, Mr Roose has indicated that he found Mr Butcher a pleasant individual and admired the way in which he conducted himself.
23. Mr Butcher has also said to me that what Mr Roose says cannot be treated as accurate, because he got the date wrong when commenting about one particular incident when counsel had put their autographs on a particular book. For my part I cannot see that that is a significant fact. The EAT have allowed Mr Butcher's complaint about the Tribunal giving too early an inappropriate indication as to contribution to go to appeal, but, subject to that point, for my part I am wholly unable to see that in this case there is anything near sufficient material to show that this experienced Tribunal Chairman, in what appears to have been his last case, was biased.
24. Mr Butcher also says that the form of the EAT's order did not indicate the limits on the grounds of appeal, the order merely stating that the Tribunal ordered the appeal be allowed to proceed to a full hearing in accordance with the grounds set out in their judgment. He therefore suggests that that is a ground for allowing him to appeal on all the grounds in his Notice of Appeal. I reject that. In paragraph 6 of the EAT judgment, the EAT said this:

"We consider that this gives rise to the following arguable points..."

25. Then they state four such points, each prefaced with a numeral indicating what those points were. To my mind, it is therefore quite obvious what are the limited grounds on which the appeal was allowed to go ahead.
26. Mr Butcher has referred in his skeleton argument to a number of provisions of the Civil Procedure Rules. Save for the overriding objective, which is now imported into tribunal proceedings, they have no application. The Employment Tribunal and the EAT have their own separate rules of procedure.
27. I have considered all the other points which Mr Butcher has raised in his grounds of appeal and his skeleton argument and which he has mentioned to me this morning. He has, I am afraid, not persuaded me that on any of the further grounds he has any real prospect of succeeding on an appeal. Nor to my mind does this case disclose any matter which suggests that there is a compelling reason why this case should go to appeal.
28. I must therefore refuse this application.
Order: Application refused.