United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MISS M O'ROURKE (of Counsel) Messrs Shulmans 21 York Place Leeds LS1 2EX
For the Respondent	MR J TERRY (of Counsel) Messrs Tyrer Roxburgh & Co Whymark House Whymark Avenue London N22 6DJ


 


MR JUSTICE KNOX: A preliminary point has been taken by Counsel for the respondent employee, Mr Andrew Gavas, that the present appeal has not been validly instituted by the appellant employer, William Hill Organisation Plc ("William Hill"), in that no copy of the full written reasons for the decision of the Industrial Tribunal sought to be appealed against has been served on the Employment Appeal Tribunal as required by Rule 3 of the Employment Appeal Tribunal Rules, 1980, as amended in 1985.

1. The Industrial Tribunal, after a hearing on 27 and 28 July 1988, on 23 September 1988, sent to the parties its summary reasons for its unanimous decision that Mr Gavas was unfairly dismissed and that compensation would be paid in the sum of £10,138. The salient facts as found in those summary reasons were as follows. Mr Gavas was employed by William Hill as manager of a betting shop. He did not have a very satisfactory record with regard to observing the detailed rules regarding security and maintenance of cash balances and checking of successful bets and he had had repeated warnings in respect of clear transgressions. On 21 November 1987 the betting shop which Mr Gavas managed was burgled and property stolen. William Hill's investigations showed them that Mr Gavas had then further broken the rules regarding the maintenance of cash balances and counter checking a betting slip. On 23 November Mr Gavas was suspended on full pay till 27 November on which day he was arrested and later released on suspicion of fraud and burglary. On 30 November Mr Gavas was seen by Mr Dimmock, the general manager of William Hill and suspended without pay under a rule of William Hill's procedure dealing with suspension where the employee is involved in investigations which may lead to criminal charges. On 14 December Mr Dimmock summarily dismissed Mr Gavas for gross negligence and a letter of dismissal specified as the grounds for dismissal Mr Gavas' failure to transfer cash to a safe and to have a betting slip cross-checked. Mr Gavas' internal appeal was unsuccessful. After the dismissal, employees of William Hill gave on two occasions as the grounds of Mr Gavas' dismissal his involvement in the theft which had occurred on 21 November and other dishonesty relating to a betting slip.
2. Mr Gavas applied to the Industrial Tribunal for relief in respect of unfair dismissal and, as already stated, was successful. The Industrial Tribunal in its summary reasons stated that in its view the true reason for the dismissal was suspicion of criminal activities but that the reasons given were transgressions of the rule on 21 November and that they were known to William Hill within a short time thereafter. The Industrial Tribunal found that there was a three-week delay in confronting Mr Gavas with the offences for which he was purportedly dismissed and that, in relation to what they found was the true reason for his dismissal, this was never put to Mr Gavas. In the light of evidence from Mr Dimmock that William Hill were not concerned with possible criminal aspects, the Industrial Tribunal concluded that that aspect was not considered by William Hill and brought to the attention of Mr Gavas, with the result that the Industrial Tribunal was not able to consider that as a ground for dismissal. On the subject of compensation, the Industrial Tribunal said only this in its summary reasons:

"The tribunal therefore finds that the applicant has been unfairly dismissed and awards compensation as set out below. The recoupment provisions apply.

COMPENSATION

Basic award 1,640

Compensatory Award 5,927

Loss of Pension Rights 2,571

10,138

Prescribed Element 4,258

Period of prescribed element

15 December 1987 to 28 July 1988"

3. William Hill appealed by Notice of Appeal dated 2 November 1988, but it had not applied for or obtained the Industrial Tribunal's full reasons and this was pointed out by this Tribunal. Application was made on 10 November 1988 by William Hill's solicitors, who had not acted at the hearing before the Industrial Tribunal, to the Office of Industrial Tribunal saying:

"Unfortunately the Reasons sent to the parties were only summary reasons and no request pursuant to Regulation 9(5)(d) of the Industrial Tribunals (Rules of Procedure) Regulations 1985 was made seeking Reasons in full. In the circumstances and as an Appeal cannot proceed without such Reasons we would be grateful if the Tribunal would consider and determine that, pursuant to regulation 9(5)(b), 'Reasons should be given in full' at this stage. We would also request that you regard this letter as an application for such consideration to be given under Regulation 9(5)(b) and/or a request under Regulation 9(5)(b) made outside the stipulated time period and for which omission we apologise."

4. That request was refused initially by letter dated 21 November 1988 and, finally, by a further letter of 16 December 1988 of which a copy was sent to Mr Gavas' solicitors as well as to William Hill's. It is clear and was at all material times accepted by William Hill's solicitors that their application for full written reasons was outside the time limit of 21 days from the giving of summary reasons under the Industrial Tribunal (Rules of Procedure) Regulations 1985. There were potentially two discretions which the Chairman of the Industrial Tribunal might have exercised to give full reasons out of time but he declined to do so. We interpose at this stage to say that it would be very difficult now for full reasons to be supplied well over a year after the hearing before the Industrial Tribunal.
5. In the meanwhile there was further correspondence between William Hill's solicitors and the Registrar of this Tribunal. On 9 December 1988 William Hill's solicitors asked for an order that William Hill should not be liable to enforcement of the compensation award pending the outcome of their appeal. They followed that up with a letter on 12 December 1988 enclosing copies of the correspondence had to date with the Regional Office of Industrial Tribunals, which included the application for full written reasons and the first refusal but not, of course, the second and final refusal because that only came in the letter of 16 December already mentioned. The Registrar of this Court replied to both these letters by a letter of 15 December in the following terms:

"The President has directed that the appeal should be registered as a full appeal, and you will be advised further upon registration."

6. On 20 December a further letter was sent enclosing a sealed copy of the Notice of Appeal "in accordance with Rule 4 of the Employment Appeal Tribunal Rules 1980". An ink addition to that letter read:

"PS. Consideration will be given to requesting Chairman's Notes if cause shown."

On 11 January a further letter from this Tribunal written by an officer on behalf of the Registrar, enclosed Mr Gavas' Answer to the Appeal and stated that the appeal was now ready for hearing. An ink addition read:

"I confirm that the Appeal will proceed to a full hearing without the 'Full Written reasons'."

7. It was submitted to us on behalf of William Hill that no appeal was lodged against the Chairman's refusal to give full reasons on the strength of this assurance and of a telephone conversation of which an attendance note was recorded by William Hill's solicitor in the following terms:

"I duly attended the Case Clerk, Mr Arbuckle, on the 20^th December.

I queried the letter of 15 December from EAT and Mr Arbuckle told me that it appeared that the Tribunal were prepared to proceed without full reasons. He felt that it was now going to go for a full hearing but it was possible that the President may order full reasons. Shulmans do not have to do any more in relation to the obtaining of full reasons from the London Industrial Tribunal North."

8. Mr Gavas' solicitors did not have copies of the correspondence quoted above between William Hill's solicitors and this Tribunal, although they were aware of the application for full reasons and its refusal by the Chairman of the Industrial Tribunal and, naturally, they were aware of the existence of the appeal. The amended answer of Mr Gavas to the appeal, dated 23 February 1989, included the following:

"(1) The Appeal has not been validly instituted in that full written reasons have never been promulgated by the Industrial Tribunal and the Chairman has refused to provide the same in a letter dated 16^th December 1988 by reason of the Appellant's failure timeously to apply for the same."

They attempted to have that heard as an interlocutory application under Rule 15 of the Employment Appeal Tribunal Rules 1980 but it was directed to be heard as a preliminary issue at the hearing of the appeal and this is the matter now before us.

9. The relevant Rules in the Employment Appeal Tribunal Rules 1980 as amended in 1985 are as follows:

"3. (1) Every appeal to the Appeal Tribunal shall be instituted by serving on the Tribunal the following documents:-

(a) a notice of appeal in, or substantially in accordance with Form 1, 2 or 3 in the Schedule to these Rules;

(b) a copy of the decision or order of an industrial tribunal or of the Certification Officer which is the subject of the appeal;

(c) in the case of an appeal from an industrial tribunal, a copy of the full written reasons for the decision or order of that tribunal.

(1A) The period within which an appeal to the Appeal Tribunal may be instituted is 42 days from the date on which full written reasons for the decision or order of the industrial tribunal were sent to the appellant, or, in the case of an appeal from a decision of the Certification Officer, 42 days from the date on which the written record of that decision was so sent.

32. (1) Failure to comply with any requirements of these Rules shall not invalidate any proceedings unless the Appeal Tribunal otherwise directs.

(2) The Tribunal may, if it considers that to do so would lead to the more expeditious or economical disposal of any proceedings or would otherwise be desirable in the interests of justice, dispense with the takings of any step required or authorised by these Rules, or may direct that any such steps be taken in some manner other than that prescribed by these Rules.

(3) The powers of the Tribunal under paragraph (2) extend to authorising the institution of an appeal notwithstanding that the period prescribed in rule 3(1A) may not have commenced."

10. It was submitted on behalf of William Hill that the letters emanating from this Tribunal on 15 December 1988 and 11 January 1989 constituted an exercise of this Tribunal's power under Rule 32 to dispense with the need for full written reasons before the substantive appeal could be heard. If that were right, it would mean that Mr Gavas would have lost any right to object to the appeal being heard without the full reasons being before this Tribunal without his having had the opportunity to be heard on this point. In our judgment, the President's direction that the appeal should be registered as a full appeal did not divest Mr Gavas of the right to object to the determination of the appeal in the absence of full written reasons but was a listing direction enabling the matter to go forward and be argued both as regards the necessity for full written reasons and if that was answered in the negative as regards the issues raised by the appeal. That conclusion is supported by the fact that when the President's direction was given it was still represented by William Hill's solicitors that the question whether the Chairman of the Industrial Tribunal would give full written reasons remained in issue, to use their expression. However, just as we consider that Mr Gavas was not precluded by the President's order from relying on the absence of full written reasons as a bar to the further prosecution of this appeal, so also we consider that it remains open to William Hill to seek to have their appeal heard notwithstanding the absence of full written reasons pursuant to Rule 32 of the Employment Appeal Tribunal Rules 1980 as amended.
11. We regard the fact that William Hill's solicitors refrained from prosecuting any appeal against the decision of the Industrial Tribunal not to give full written reasons because of the correspondence which passed between them and this Tribunal as an irrelevance. William Hill were content at that stage to proceed to argue the appeal without full reasons. Nothing that was said by or on behalf of this Tribunal prevented them from appealing this decision of the Chairman of the Industrial Tribunal which was the only way in which full reasons could be obtained. Where there may well have been an unfortunate misunderstanding is that William Hill's solicitors may well have no longer constituted any sort of objection to the prosecution of this appeal. For the reasons we have given we consider that this is to overstate the effect of the letters from this Tribunal of 15 December and 11 January.
12. We turn, therefore, to the question whether there should in all the circumstances be a waiver of the requirement that full reasons should be given before the appeal is substantively disposed of. We start from this, that in principle it is highly undesirable that this Tribunal should conclude that an Industrial Tribunal has committed an error of law without having the benefit of the latter's full reasons for doing what they did. In particular, it is impracticable and undesirable in the extreme for this Tribunal to make a finding that a decision of an Industrial Tribunal was one which no Industrial Tribunal, properly directing itself, could have made without seeing the full reasons that impelled the Industrial Tribunal and where the criticism is made on the basis that there was no evidence to support the finding or that the decision is perverse, the Chairman's notes of evidence are, save in the most exceptional circumstances, also indispensable. They are not before us and the attempt to procure them, which was made by William Hill's solicitors on 21 September 1989 was, on any view, far too late.
13. This is an exceptional case because of the past history and exceptionally, therefore, we turn to consider the grounds of appeal and the extent to which a case is made out in relation to each of them for waiving the requirement of the Rules that a written statement of full reasons of the Industrial Tribunal should be before us. We can deal with four of the grounds in the Notice of Appeal, viz. Grounds 5(2), (4), (5) and (6) together, because we accept in relation to them the submission made on behalf of Mr Gavas that in one form or another they amount to a claim that the Industrial Tribunal acted contrary to the evidence. That is established most clearly by the fact that William Hill's solicitors themselves in the letter of 21 September 1989 identified those grounds as ones to which, in particular, the Notes of Hearing would clearly be relevant. It must a fortiori be true of those grounds that full rather then summary reasons of the Industrial Tribunal are needed for an appeal to be properly conducted.
14. At the opposite extreme, in Miss O'Rourke's submission for William Hill, stands ground 5.7 of the grounds of appeal, namely, that the Industrial Tribunal erred in law in failing to consider whether the respondent's conduct had contributed to his dismissal. It is evident that this ground depends entirely on the premise that the Industrial Tribunal in fact gave no consideration to the question of contribution by Mr Gavas to his dismissal. We have quoted what the Industrial Tribunal said in its summary reasons about compensation and it is clear that a possible reduction in either the basic or compensatory award under SS.73(7B) and 74(6) of the Employment Protection (Consolidation) Act 1978 was not referred to. The question for us is whether it follows from the fact that it was not referred to that no consideration was given to it. It has been said on numerous occasions even of full reasons given by Industrial Tribunals that it should not be assumed by an appellate tribunal that because a factor has not been mentioned by an Industrial Tribunal in its decision that factor has been ignored. This must apply with added force to summary reasons for a decision. We appreciate that the summary reasons in this case included material upon which it would have been possible for an Industrial Tribunal to base a reduction in the awards which it made if it considered it just and equitable to do so. The question for us is whether the appellant could affirmatively show an error in law on the material before us. The fact that summary reasons do not include a statement whether the Industrial Tribunal considered the possibility of a reduction does not prove that it gave the point no consideration and if they did consider it, the fact that William Hill can point to findings in the summary reasons which might have led some Industrial Tribunals to make a reduction does not, in our view, establish conclusively that it could not be just and equitable to make no reduction. Anything short of that is, in our judgment, insufficient. We therefore consider that the objection to the absence of full reasons on this ground is a valid one.
15. That leaves two grounds of appeal, the ones in ground 5.1 and 5.3. The former was that in the light of Mr Gavas' past record, as found in the summary reasons, no reasonable tribunal could have found that William Hill's true reasons for dismissing was suspicion of criminal activities. This seems to us not to differ significantly for our present purposes from the grounds already dealt with at 5.2, 5.4, 5.5 and 5.6 in that what is alleged is essentially perversity. The difference is that, as regards ground 5.1, there are findings in the summary reasons which are relied upon as establishing the perversity of a finding of unfair dismissal. Here again, there is a fundamental flaw in that reasoning in that it does not follow from the fact that an employee has been guilty of misconduct that he cannot be unfairly dismissed. This is even clearer since British Labour Pump v Byrne [1979] ICR 347 was disapproved by the House of Lords in Polkey v A E Dayton Services Ltd [1988] AC 344. The misconduct may be relevant to a reduction in the award but we have already dealt with that.
16. The final ground 5.3 was that the Industrial Tribunal wrongly found, or erred in law, in finding undue delay in dismissing for breach of the employer's rules and this is supported by various factual considerations, such as that William Hill were carrying on investigations. This we find to be indistinguishable from the grounds at 5.2, 5.4, 5.5 and 5.6 in that this again is a charge of perversity in respect of which an appeal would need both notes of evidence and full reasons.
17. For all these reasons we have reached the conclusion that a proper appeal on the grounds of appeal relied on by William Hill cannot be held in the absence of full reasons. The absence of notes of evidence buttresses that conclusion. We appreciate that William Hill may feel that matters have not in the end been investigated as fully in this tribunal as they might have been. That would be right but the cause of that state of affairs is their failure to apply in time for full reasons and the absence of full reasons is the result of a deliberate choice, which may well have been thoroughly sound, not to prosecute an appeal against the Industrial Chairman's refusal to extend time. The fact that this Tribunal indicated that a full hearing of the appeal could proceed without full reasons did not mean that their absence was of no consequence. If it was so interpreted that was a mistake and regrettable but the decisions to press on to a full appeal without full reasons was quite deliberately taken by William Hill. We uphold the objection and dismiss the appeal.