Miskelly, Jonathan and The Restaruant Group UK Ltd
| Jurisdiction | Northern Ireland |
| Court | Court of Appeal (Northern Ireland) |
| Writing for the Court | Coghlin LJ |
| Judge | Coghlin LJ |
| Judgment Date | 15 March 2013 |
| Neutral Citation | [2013] NICA 15 |
| Year | 2013 |
| Date | 15 March 2013 |
1
Neutral Citation No: [2013] NICA 15 Ref:
COG8785
Judgment: approved by the Court for handing down Delivered:
15/03/13
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
ON APPEAL FROM AN INDUSTRIAL TRIBUNAL
INDUSTRIAL TRIBUNALS (NORTHERN IRELAND) ORDER 1996
BETWEEN
JOHNATHAN MISKELLY
Claimant/Appellant
and
THE RESTAURANT GROUP UK LTD
Respondent
Before Girvan LJ, Coghlin LJ and Horner J
________
COGHLIN LJ (delivering the judgment of the court)
[1] This is an appeal from an industrial tribunal which issued its decision on
20 July 2012 after sitting to hear the appellant’s claim between the 30th of April and
the 2nd of May 2012. The appellant is a personal litigant who conducted his claim
before the industrial tribunal and the appeal before this court himself while
Mr Sean Doherty represented the respondent. The court is grateful to the parties
and their representatives for the well prepared and carefully drafted written
submissions and their succinct oral arguments.
[2] The respondent conducts business in a chain of restaurants known as
“Frankie and Benny’s” and, on the 1st June 2011, the appellant was appointed to be
general manager of one of those restaurants that was scheduled to open in Bangor,
Co Down, in late August 2011. Between the date of appointment and the opening of
the Bangor restaurant the appellant was to take part in the respondent’s “Manager in
Training” (MIT) programme. However, he was dismissed with notice on the 26th of
July 2011, his employment having lasted some eight weeks.
2
[3] Before the industrial tribunal the appellant advanced claims that his dismissal
had been unfair, that he had been victimised by the respondent, that he had been the
subject of discrimination on the grounds of race and that he was owed some £541.66
in respect of holiday pay as well as an undisclosed sum for breach of contract.
[4] After hearing the relevant evidence and the submissions of the parties the
industrial tribunal determined that the appellant had been dismissed because he had
not demonstrated the management skills that his application form in interview
indicated that he possessed, that there were concerns that he would depart from the
respondent’s brand standards and that he had demonstrated a negative attitude
towards his colleagues and the company. In the circumstances, the appellant’s
claims were dismissed although the tribunal did acknowledge that he had been
deeply affected by his experience and had showed great determination to right what
he believed to have been an injustice.
The Discovery Application
[5] Before this court the appellant made an application for discovery of the home,
office and mobile telephone records of the chairman of the industrial tribunal
together with the same records of Mr Sean Doherty, counsel instructed on behalf of
the respondent, for the date of the 30th of April 2012. The basis of this application
appears to be the appellant’s allegation that, on the 1st of May 2012, in the tribunal’s
room, the President announced to Mr Doherty and the appellant that a discussion
had taken place between herself and Mr Doherty during the evening of the previous
day in the absence of the appellant. The appellant has claimed that, from that point
on, he was not allowed to speak during the course of the hearing. We note that Mr
Doherty empathetically denied that any such communication had taken place
between himself and the chairman.
[6] Neither the chairman of the tribunal nor Mr Doherty are parties to the appeal
before this court and, accordingly, there is no basis upon which this court could
make an order for discovery in accordance with the provisions of Order 24 of the
Rules of the Court of Judicature (Northern Ireland) 1980. We note that the chairman
has formally denied that any such conversation took place and that the appellant has
instituted a number of complaints that are currently under investigation.
The Lodging of the Appeal
[7] The tribunal decision was issued on 20 July 2012 and Order 60B Rule 1(2) of
the Rules provides that notice of an appeal must be served on all parties to the
proceedings within 6 weeks of receipt of the tribunal’s decision by the appellant.
Order 60B Rule 2 provides that the notice of appeal must be lodged in the central
office within 7 days from service of the notice of appeal upon the respondent. In the
course of giving judgement in this court in Magill v Ulster Independent Clinic [2010]
NICA 33 Girvan LJ cited paragraph 59/3/5 of the 1999 Supreme Court Practice of
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