Watson v Bonar Floors Ltd

LORD JUSTICE MUMMERY: This is an application for permission to appeal. It is made by Mr Bernard Watson in person via video link from a location in the Telford County Court.

Mr Watson wishes to have permission to appeal against the order of the Employment Appeal Tribunal which dismissed his appeal against the order of the Employment Tribunal at a directions hearing at Shrewsbury when he was only granted limited permission to amend in order to allege unfair dismissal by reason of a protected disclosure. Other directions were given, including fixing a date for the hearing.

The position is this: Mr Watson was employed between February 1997 and May 2002 by Bonar Floors Limited. He was employed as a driver and as a production operative. The circumstances in which his employment ceased led him to bring a case against Bonar Floors for unfair dismissal. His originating application was dated 9th May 2002. In it he said that he was a member of the Health and Safety Committee and that he and other employees were concerned about the dust wire section. None of them had ever received any information, instruction or training, which they should have done, with relation to the relevant regulations. He had concerns about health risks, which he specified. He said he went through the correct channels and he had been dismissed unfairly.

The case was defended by the respondents, who explained in their ET3 form that the company was involved in the manufacture and production of specialist floor coverings and that Mr Watson was employed as an operative in the wiring section, involved in shaping wires. They accepted his claim that he was a member of the Health and Safety Committee. They said that they had suspended Mr Watson through their production manager, Paul France, on full pay, pending investigation into allegations that were made about Mr Watson being seen interfering with monitoring equipment and to have collected dust from equipment with his fingers and smeared it into a dust monitoring machine, thereby invalidating an analysis that had been conducted on the company's behalf. They said he was invited to a disciplinary hearing, of which notice was given. It was held on 2nd May 2002, in accordance with the disciplinary procedure. He was accompanied by a colleague. He was given an opportunity to present his case. The site director who conducted the hearing was satisfied, on the evidence, that Mr Watson had interfered with dust analysis. He was summarily dismissed for gross misconduct. He was given a right of appeal. The appeal was held, at which he was accompanied by a Trade Union official, and was again given an opportunity to present his case. The decision to dismiss him summarily was confirmed on 22nd May 2002.

Although three years have passed, there are still questions about what claims Mr Watson can make. In June 2004 he made a letter application to amend his ET1. That is what was dealt with by the Employment Tribunal at Shrewsbury on 4th January 2005. The Employment Tribunal sat on 3rd December and informed Mr Watson of their decision on the 4th January. The order they made at that pre-hearing review was that Mr Watson should be allowed to amend his claim to include a claim under section 103(A) of the Employment Rights Act in order to allow him to claim he had been unfairly dismissed by reason that he had made a protected disclosure. But the order went on to say the amendment was allowed only in respect of item number 6 in the note of the directions hearing on 10th May 2002, and his request to claim in respect of all other matters listed in that note was dismissed.

It appears from a note, dated 8th April 2005, of a later hearing on 4th April that, although not specifically mentioned in the order of which Mr Watson was notified on 4th January 2005, the Tribunal recollected that Mr Watson had also asked for certain witness orders to be issued against certain persons. The Tribunal refused to make such an order because it could not see that any of the witnesses requested by Mr Watson could give relevant evidence.

Various other directions were given which are not relevant to today, though I should mention that a direction was given that the hearing would take place over a period of four days from 4th to 7th April 2005, the oral hearing to start on 5th April 2005. As appears from the later order of the Employment Tribunal on 8th April 2005, the Tribunal decided that it was in the interests of both parties to postpone that hearing. Mr Watson was at that time appealing to the Employment Appeal Tribunal against the refusal of the Employment Tribunal to allow the other amendments which he requested and their refusal to grant him the witness orders. The Employment Appeal Tribunal, HHJ Birtles sitting alone and dealing with the matter under the Employment Appeal Tribunal Rule 3(10), dismissed Mr Watson's appeal on the ground that the orders which the Employment Tribunal had made refusing amendments and witness orders contained no arguable error of law. It is against that order that Mr Watson now wishes to appeal.

Mr Watson has made some detailed arguments to me, explaining that he was a Union member when he was dismissed, that he had consulted solicitors and that there was no fault on his part in the fact that the claims that he wishes to include by amendment had not been included at an earlier stage. He says that he made the application for amendment without any blameworthy delay on his part. He made the application to amend as soon as he found out what the facts were. He complains that the Chairman of the Employment Tribunal was biased, prejudiced and perverse in dealing with his application and he complains that only one judge sat hearing his appeal in the EAT. He criticises the various observations made by the Employment Tribunal that there was duplication in his claim and that he was estopped from bringing forward various matters which he wishes to ventilate in these proceedings. He says there was no duplication, each case was different. He says that all the circumstances which should have been taken into account in deciding his application had not been, in particular the Tribunal should have taken account of the conduct of the solicitors in relation to his case. He also mentioned that he thought there was a breach of Article 6 of the European Convention on Human Rights, in that he had not had an impartial hearing. He said, in summary, that he should not be blamed for the fact that he now is seeking to amend over three years after he started his proceedings.

I have to consider whether these arguments show that there is a real prospect of this appeal succeeding. In order to decide that, I should mention an important aspect of the orders which Mr Watson wishes to appeal. Matters concerning amendments of claims and whether or not witness orders should be issued are within the discretion of the Employment Tribunal. An appeal can only be brought against their orders if there is an error of law in the exercise of that discretion. It is not enough to show that another tribunal, or that an appeal tribunal or court would have made a different order in the first place. It must be shown that there is an error of principle or that in some other way the discretion has been exercised in a way that is plainly wrong. This general principle means that it is difficult for people in the position of Mr Watson to appeal against the exercise of discretion. It is difficult to show that there is an error of law in these matters.

I have considered Mr Watson's arguments, in particular his argument that delay should not count against him, his arguments about the conduct of the solicitors, and his general point that there was nothing to blame him for in not specifically raising these points which he wishes to include by amendment in the first place. I can see why he is dissatisfied with the decision that the Employment Tribunal has made and the Employment Appeal Tribunal has upheld, but in my view there is no real prospect of the Court of Appeal interfering with the discretion of the Employment Tribunal. They have given perfectly satisfactory reasons for both refusing to allow the amendment and for refusing to issue the witness orders. I am unable to find any error of law in the Employment Tribunal's decision, sent to the parties on 4th January 2005 and read in the context of the later note of the 8th April 2005. I agree with HHJ Birtles in the Employment Appeal Tribunal that there is not an error of law in the Employment Tribunal's decision and, although I know Mr Watson will be unhappy to learn this, I have decided for those reasons to refuse permission to appeal. I am sorry, Mr Watson, but that is my view of the case.