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Cite as: [1992] UKEAT 50_91_2701

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BAILII case number: [1992] UKEAT 50_91_2701

Appeal No. EAT/50/91

EMPOLYMENT APPEAL TRIBUNAL

4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

At the Tribunal

On 27 January 1992

Before

THE HONOURABLE MR JUSTICE WOOD MC (P)

MR J P M BELL CBE

MR R J LEWIS

MR D ROBINSON APPELLANT

E G PHILLIPS SON & PARTNERS RESPONDENTS

Transcript of Proceedings

JUDGMENT

P R E L I M I N A R Y H E A R I N G

Revised

APPEARANCES

For the Appellant MR D ROBINSON

Appellant in Person

MR JUSTICE WOOD (PRESIDENT): From 2nd January 1986 until 1st September 1989, Mr Robinson was employed as the partnership secretary and inhouse accountant by a firm of consulting engineers at Nottingham named E G Phillips Son & Partners. As a result of the termination of his employment Mr Robinson brought proceedings alleging unfair dismissal which were heard by an Industrial Tribunal sitting at Nottingham under the Chairmanship of Mr Pollett on 19th February & 23rd March 1990. The matter was considered by the Tribunal sitting on their own and discussing the matter on 20 April 1990 and the reserved decision was dated 8th June 1990.

The Tribunal found that Mr Robinson had been unfairly dismissed but that he had contributed 40% to his dismissal. Mr Robinson sought a review and on 17th September 1990, the Tribunal sat again to consider the application for review. That application was dismissed by a decision dated 3rd October 1990. It is from that refusal to review the decision that Mr Robinson now appeals.

The matter is somewhat complicated and this judgment will be rather longer than might have been envisaged where we are dealing with a preliminary hearing where we look to see whether there was an error of law in the decision or the refusal to review by this Industrial Tribunal.

The originating application was dated 9th November 1989 and the notice of appearance is dated 12th December 1989. In that notice of appearance there is a suggestion that there had, prior to the dismissal in December, been some irrational behaviour on the part of the applicant which had concerned the partners. Matters had come to a head, it was suggested, when the respondents learned from their auditor that the applicant had divulged extremely confidential financial information concerning the respondents' business to a third party.

Mr Robinson and the partnership were represented by solicitors at the hearing before the Industrial Tribunal and it seems clear that the interlocutory proceedings were conducted by the solicitors. There was an order for particulars of the 3rd January 1990 and those were answered in a document which is dated 18th January 1990. Those particulars relate to the allegations in the notice of appearance, including the irrational behaviour. An application was made for further particulars but that was refused. The learned Chairman clearly thought that the matter had been sufficiently particularised, and after all it is important to remember that particulars are not the evidence they need only be sufficient to give notice of the case which is going to be alleged.

The background and the history of this matter needs some careful investigation. At the start of the hearing, originally, the learned Chairman had made it clear that he knew the auditor to the partnership, Mr Warner, who was one of the main witnesses and asked if there was any objection to him continuing to sit. Obviously, the two solicitors appearing discussed this with their clients; no objection was taken.

The evidence before the Tribunal so far as we can ascertain from the decision itself, because we do not have the notes of evidence, consisted for the partnership of Mr Eagle, Mr Warman - Mr Eagle being the senior partner - Mr Poyser and for the applicant, the applicant himself and Mrs Adcock. We have reason to think that Mrs Poyser also gave evidence but that is not entirely clear.

The form in which the decision is arranged is that the learned Chairman set out in broad terms the evidence given by the witnesses. Mr Eagle was giving the history of the matter and the evidence stretches over 2 pages, Mr Warman's evidence is stretching across approximately 2 pages and Mr Poyser over three quarters of a page. The applicant's evidence is over a page and a bit and Mrs Adcock's evidence is over a shortish half page. Thereafter the Tribunal considered the various matters under Sections 53, 57 and including Section 57(3) and reached their conclusion also considering contribution under Section 74(6).

The history is set out in that way and it is clear that from a time in July 1989 there seem to have been some ripples on the surface of the pond. Until these matters came up Mr Robinson was regarded as a good accountant. There had been an issue between Mr Robinson and Mr Hall in July as a result of which Mr Eagle had to step in. Mr Hall agreed to write a letter of apology to Mr Robinson and that was the end of that matter.

However, thereafter one or two instances caused Mr Eagle some worry. First of all, there was a request by Mr Robinson to have lunch at a hotel with Mr Eagle to discuss certain matters. The applicant, so Mr Eagle said, was trying to find out whether he was a Freemason and pointed out that there were certain influences working against the respondent firm and there was mention of an earlier employee. Mr Eagle felt that this was all rather strange but the applicant said that his female assistant was a security risk and should be dismissed. The partners refused to do this. There were some further worries as a result of things that the applicant, Mr Robinson, had spoken to him about and Mr Eagle generally felt that he, Mr Robinson, was "over the top" over security. Mr Eagle was telephoned at home by the applicant who said that someone had been into his office because he had found items had been moved.

This was all causing some concern because Mr Robinson attended all the partners' meetings, was privy to all the partnership confidentialities and had access to all the information. The matter came to a head at the end of August 1989. On the 30th August, Mr Eagle was approached by Mr Warman who, as we have already said, was the partnerships' auditor and accountant, and indeed, had also been a friend and had dealt with the partners' personal affairs. This had continued over some 20 years. Mr Warman wanted an urgent meeting with the partners. There was a meeting and he, Mr Warman, told them that a Mr Poyser had given him information which proved that the applicant was making disclosures to Mr Poyser of financial information relating to the respondent partnership.

Mr Warman brought some documents with him and as a result of these approaches to take the matter quite shortly the partnership felt that they had lost all confidence in the applicant.

What they decided to do, and that which was severely criticised by the Industrial Tribunal, was that they agreed to have a meeting at which Mr Warman should be present, at which Mr Robinson should be asked to attend, and at which certain questions should be read out and the answers given by Mr Robinson noted. The questions were asked twice and the answers were satisfactory and at the end of that time having decided to dismiss Mr Robinson Mr Eagle indicated that they had totally lost confidence and in fact a letter of dismissal was dated 5 September. Mr Eagle made it clear, and indeed it is apparent from the later finding of the Industrial Tribunal, that the dismissal of the applicant was because the respondents had a lack of trust and confidence in their partnership secretary which was brought to a head by the alleged disclosure. This was therefore a culmination of what had occurred as we understand the reasoning from the July through until the September.

Mr Warman's evidence is also set out as is the evidence of Mr Poyser. Mr Robinson, the applicant, denied that he had given any confidential information relating to the respondents to anybody. There was also an issue about other questions connected with the incidents which had occurred.

As a result of that evidence before them the Tribunal reached its decision. When it met on 20 April, as we have already indicated, for a discussion the Tribunal was asked to look at further evidence. This request came from Mr Robinson but they resolved that the evidence had closed, obviously the parties' representatives were not there, and the Tribunal unanimously resolved not to consider this evidence.

Having found the reason for the dismissal, as we have already spelt it out, the tribunal were not at all happy with the way that the respondent employers had approached these matters. They felt first of all that Mr Robinson had not been warned of the reason for the meeting on 1 September. He had been given no opportunity to have anyone with him and that this was a basic breach of the rules of natural justice. The sources of information had never been disclosed and they felt that the whole matter was procedurally unfair. They also felt that the investigation had not been as reasonably thorough as it could have been and therefore for all those reasons they found that the dismissal was unfair.

In paragraph 31 the Tribunal went on to consider the question of contribution. They say that they believe that Mr Robinson did contribute. They go on in this form and I cite now from paragraph 31:

"We accept that his behaviour during August was erratic but we find it strange that Mr Eagle did not confide in his partners. The applicant told the Tribunal that he was joking, but he did not deny the substance of the evidence of Mr Eagle. We are satisfied that Mr Robinson unduly pressurised the Poysers with regard to the business aspects of the matter. We find it strange that Mr Poyser alleges that he was told the information on the 5 August, but did not communicate it to Mr Warman, somewhat casually, until the 22 August. But then he was preoccupied with his own troubles. Improper pressure was put on the Poysers by the applicant. There is documentary evidence of this which substantiates the Poysers' claim that they were being pushed which lends some credence to the Poysers' evidence of what they said that the applicant had disclosed to them. The figures that were disclosed are various and not proved, but the Tribunal is satisfied that the applicant made a confidential disclosure which he had no business to do as the partnership secretary. He was in a position of trust.

We unanimously decide that the applicant contributed 40% to his dismissal."

and then they give the unanimous decision.

Mr Robinson applied for a Review and in that he presented to the Tribunal a substantial argument in writing together with some documentation which we have before us. On 17 September, as we have already explained, the Tribunal met again. Mr Robinson on this occasion was in person but the partnership were still represented by their Solicitors. The basis upon which the application was made for a Review first was that new evidence had become available since the decision was made and its existence could not have reasonably been known or foreseen, and secondly that the interests of justice required a review. As the Tribunal point out it was for the applicant to satisfy them that he came within one or both of those grounds. Those grounds are the grounds set out in Rule 10(1) of the Industrial Tribunal Rules.

After listening to the applicant on the issue, I imagine, of contribution, they say this:

"Even if the dismissal had been based on his unauthorised disclosure only, that does not preclude the Tribunal from looking at the whole of the conduct of the applicant when deciding whether there should be any contribution."

Then they look at the question of a complaint that insufficient particulars had been given of the irrational behaviour and they say this:

"We have looked at the IT3 (to which we ourselves have already referred) which makes the matter of the applicant's irrational behaviour an issue in the case. That would have been known to the applicant and his legal advisers at the time of the receipt of the IT3. This Tribunal believes that he could, and indeed should, have brought evidence to counter that allegation at the original hearing.

The Tribunal refused to hear evidence produced by the applicant after the evidence had closed..."

and they give their reasons for that. They deal also specifically with the discrepancy of the figures given in evidence but continues:

"...the Tribunal were convinced on the evidence that they heard that the applicant had disclosed financial information relating to the company. Even to disclose a large overdraft is a disclosure and the applicant himself said that that would be a serious matter.

The applicant's argument now is that the Tribunal drew two wrong conclusions from the evidence which it had heard. We decided, on that evidence, that a disclosure had taken place and we also decided that there was a significant breach of confidentiality on the part of the applicant. In the Tribunal's unanimous view, having heard and considered the application to review in detail, we cannot accept that the interests of justice require a review, nor has any new evidence become available which was not earlier available. We unanimously decide that the application for review should be dismissed."

Looking at those two grounds on which the Review was sought it seems to us clear that there is no error in the approach of the Industrial Tribunal in refusing the Review. Applying the ordinary principles of LADD & MARSHALL it is clear that there was mention in the pleadings of irrational behaviour, particulars were ordered, further and better particulars were refused, the applicant was represented by a Solicitor, and indeed having looked at the further and better particulars it seems to us abundantly clear that the form in which the allegation was going to be made is perfectly clear and sufficient notice was given. The evidence, if it was available, could have been produced at the first hearing and it seems to us there is no error in the Tribunal in refusing to admit that further evidence.

Then there is the issue before the Tribunal on the question of the figures and the other matters which are addressed in the application for a Review. We can find no error in that decision to refuse the Review.

Before us today we have allowed Mr Robinson to present his case on as wide a front as he chose and have not limited him to the reasoning of the refusal of the Review. He took a number of matters and we have been careful to investigate them less we felt that there was any injustice to this applicant in the way this matter had been dealt with and in the result.

He took four points. First he alleged bias, secondly he alleged that some of the witnesses had told lies, thirdly he alleged that there had been a denial of an order for further and better particulars, and fourthly he submitted that events that had happened subsequent to the termination of the contract could not in law form part of the breach of the contract.

Leaving if we may conveniently in the same order as he dealt with those matters, he dealt first with number three, the denial of an order for further and better particulars. We have already referred to the initial pleadings, initial Notice of Appearance and the Order for Further and Better Particulars of 3 January 1990 which were answered in the Solicitor's form of an Answer on 18 January. That Answer spreads over some three pages and it is quite clear in our judgment that there was ample notification of the case to be made.

Secondly he dealt with bias and lies together. The bias alleged is that the Tribunal did not in its original Decision fully set out each and every piece of the evidence from both sides and he submits, and I took a note, that there was bias because the evidence was not complete and he in one of the documents emphasises that perhaps more space had been given to the evidence for the employers than had been given to his evidence. It is of course clear, and Mr Robinson must realise, that Tribunals cannot set out every piece of evidence. They are there to try and give a picture of what occurs and to explain their reasoning in reaching a decision which the Tribunal reached.

As to the question of lies he took four points that he was able to establish that some statements and evidence were wrong and he could have produced those documents had he known the case against him. That I think is dealt with already on the Order for particulars. He submits that Mr and Mrs Poyser did not even agree that Mrs Poyser had never been named as a witness, that Mr Eagle was not truthful in purporting to remember the actual figure and that Mr Warman was not a Chartered Accountant but was on contract to a firm of Chartered Accountants. All those matters are comment on the evidence given and comment on the veracity of the witnesses. No doubt many of those points, if not all of them, were made by Mr Robinson's Solicitor to the Tribunal. It is clear that the Tribunal so far as Mr Eagle's memory of the actual figures concerned were not satisfied that the actual figure was mentioned and they so state as we have already read out. It may be Mrs Poyser was never named as a witness but that does not necessarily mean that she cannot be called and if Mr Warman was not a Chartered Accountant that matter could have been drawn to the attention of the Tribunal. As to any difference between the evidence of Mr and Mrs Poyser the Tribunal had to choose that which they preferred and they have clearly done so. We are unable therefore to see that there was anything that discloses a clear error in law. It is for the Tribunal to decide whom they believe and to deal with the matter as they see fit. They saw and heard the witnesses, they get the feel of the case, they get the impression of what is occurring, they listen to submissions and their function is as a jury to make up their minds. This is another classic case where Mr Robinson may in fact disagree with the decision. I am sure he does. He may feel there is a lack of justice, he may very well, but this is a Tribunal where we are looking for errors of law and not to retry issues of fact.

The last point he takes is that any irrational behaviour only occurred after the dismissal. He submits that the evidence was that the disclosure took place on 5 August and he was dismissed in early September therefore the activity in August took place after the basis on which he was dismissed. He also tells us that in fact the disclosure if at all was on 22 August. The important point to notice about that is that it was not until 30 August that Mr Warman told Mr Eagles so as far as the partnership was concerned they received the information on 30 August and as the Tribunal itself found the behaviour during July and August was not after the decision to dismiss, it all occurred running up to the decision to dismiss and formed part of the decision to dismiss, the reason being the total collapse in the feeling of faith and confidence which the partnership had. That is the real reason behind it. The disclosure was part of the background but it was the loss of confidence that the Tribunal found was the reason for the dismissal. They were severely critical of the way this matter was handled and in our judgment rightly so but they were also critical of Mr Robinson and reduced the claim by of compensation by 40%. That also in our judgment they were perfectly entitled to do and we can find no error of law in these proceedings at all.

Therefore despite Mr Robinson's able submissions on his own behalf we are unable here to interfere with these decisions and they must be dismissed.