Tynan v F E Cole & Son Ltd [1997] UKEAT 42_97_1606 (16 June 1997)

JUDGMENT PRELIMINARY HEARING - EX PARTE © Copyright 1997 APPEARANCES For the Appellant NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE APPELLANT MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing was to determine whether Mr Tynan has an arguable point of law in an appeal which he wishes to advance against a decision of a Chairman of an Industrial Tribunal which struck out his Originating Applications under Rule 6 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 . Mr Tynan made two complaints, although they related to the same subject matter. The first was a complaint against F E Cole & Son Ltd; the second was a complaint against the Ministry of Defence. The Industrial Tribunal Chairman in Birmingham on 6th November 1996 ruled that neither complaint showed an arguable question for the Industrial Tribunal. The appeal relates only to the tribunal's decision in relation to the first respondent, F E Cole & Son Ltd. There is no appeal against the tribunal's decision to strike out the application against the Ministry of Defence. The brief facts underlying this appeal may be shortly stated. Mr Tynan is on the books of an employment agency, Barker Ross Ltd. They supplied labour to F E Cole & Son Ltd. F E Cole & Son Ltd had a contract with a company called Serco Ltd to do works at the Ministry of Defence Long Marston camp. Serco Ltd are described as "managing agents". They have a contract with the Ministry of Defence in relation to the procurement by them of the works that are required to be done at the site. Not surprisingly, bearing in mind the nature of the location of the work place, the Ministry of Defence maintained control over who came on to site. They did this through some kind of vetting procedure, and it was a requirement in the contractual arrangements to which we have referred, that everyone coming on site should have clearance. The applicant is Irish. He was initially allowed on to the site, but within a short period of time thereafter was escorted from the site by the guards who were responsible for security there. It appears that he was given some kind of indication that the reason why or possible reason why he had not been cleared was because of his race. Accordingly, he made a complaint of race discrimination against F E Cole & Son Ltd. The Industrial Tribunal Chairman in an admirable paragraph, (paragraph 8 of the decision), succinctly outlines the relevant law. He then asks himself the question whether there is an arguable case against F E Cole & Son Ltd and concludes that there is not, on the basis that it was not them, or anyone for whom they were legally responsible, who took the decision to have Mr Tynan removed from site. He was of the view, as are we, that the responsibility for security on the site was wholly with the Ministry of Defence, and it was their decision for which F E Cole & Son Ltd are not in law liable, which caused Mr Tynan to be required to leave from the site. In those circumstances, it seems to us that the decision of the Industrial Tribunal in relation to the Originating Application against F E Cole & Son Ltd was impeccable. The appellant has not appeared before us today, but we have considered the case as we would imagine he would wish us to do in his absence. At paragraph 6 of the Notice of Appeal drafted on his behalf by a firm of solicitors, Angel & Co, two complaints are made. The first is that there was no sufficient evidence from which the Tribunal Chairman could come to the conclusion that the decision or action of which complaint was made was that of the Ministry of Defence. It seems to us that that submission is without any foundation. The reasoning of the Industrial Tribunal Chairman in this context seems to us to be impeccable. The question of clearance was outwith the capacity of F E Cole & Son Ltd under the arrangements between the parties. And as a matter of common sense that would be case. The second ground is the extent to which F E Cole & Son Ltd had any influence and/or control over. and/or procured the Ministry of Defence to act as they did so as to provide a justification for their own act of discrimination. Again, it seems to us, that that point is not arguable. There is absolutely no basis on which it could be said that the normal way this would happen had not occurred on this occasion. There was no suggestion, as we see it, in the IT1 that that was the position, and if one looks at the IT3 that was presented by F E Cole & Son Ltd, it is plain that that argument is not sustainable. Accordingly, although tribunals must be careful not to use their powers under Rule 6 where there are contested issues of fact, it seems to us manifestly clear that on the material before the Chairman, he had all that was required to arrive at the conclusion that F E Cole & Son Ltd could not be held responsible in fact or in law for the failure of the Ministry of Defence to give the necessary clearance which would have enabled Mr Tynan to work on that site. Accordingly, the appeal will be dismissed. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII