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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Wallington v Fairview New Homes Plc [1992] UKEAT 633_92_0112 (1 December 1992)
URL: http://www.bailii.org/uk/cases/UKEAT/1992/633_92_0112.html
Cite as: [1992] UKEAT 633_92_0112, [1992] UKEAT 633_92_112
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At the Tribunal
HIS HONOUR JUDGE J HICKS QC
MR D G DAVIES
MR J A SCOULLER
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
For the Appellant APPELLANT IN PERSON
JUDGE HICKS QC: This is a Preliminary Hearing on an Appeal by Mr Wallington against the decision of the Industrial Tribunal on his application on the basis of unfair dismissal by his employers Fairview New Homes Plc. The facts, which we need not go into in detail, were that he was dismissed following an altercation with a Miss Palazzetti who was one of the employer's staff. The Industrial Tribunal found that Mr Wallington was unfairly dismissed. What he complains of is that they found him 50% responsible for that dismissal and a crucial question in relation to that issue was whether he swore at Miss Palazzetti on the occasion in question.
On the eve of the hearing, certainly with much less than the 7 days' notice required by Rule 7(3) of the Industrial Tribunals' Rules of Procedure, the employer Respondents lodged three affidavits and it was apparent that they were not going to call the witnesses who had sworn to those affidavits but seek to rely on the affidavits themselves as evidence before the Tribunal, without Mr Wallington, having the opportunity of cross-examining the deponents, and it is in substance that failure to give him the opportunity of cross-examining the deponents of which Mr Wallington complains, because he alleges that those affidavits contain material untruths.
Had the Tribunal first asked themselves whether they should extend the time for lodging those affidavits, which under Rule 12(2)(a) they had power to do in their discretion, and had they exercised that discretion on proper grounds in favour of admitting the affidavits, then that could not have been challenged. Had they then looked at the affidavits and given them such weight as they thought appropriate then any conclusion they reached as a result of that, bearing in mind also Mr Wallington's evidence and his demeanour before them, again that could not have been challenged, but we have come to the conclusion that there may be two points of law which Mr Wallington could raise. They are not at present raised by his Notice of Appeal. He prepared the Notice himself without professional assistance and we therefore make full allowance for the fact that it is not couched in such terms as might have been used by a lawyer, but we think that there are two points which are capable of being points of law and which he could raise and which would be fit to go to a full hearing. One is whether the Tribunal did consider whether they should exercise their power under Rule 12(2)(a) to extend the time for lodging the affidavits, there being nothing in their Reasons to show explicitly that they did so. They show by their Reasons that they appreciated that the affidavits were not lodged with the seven days' notice required by Rule 7(3) and they seem to indicate that one at least of the reasons for being prepared to look at them was that they did not go beyond what facts were contained in the Notice of Appearance. In that case of course they need not have had regard to the affidavits at all, but when in paragraph 7 they come to deal with the crucial issue of fact they use the phrase:
"in consideration of the affidavits,"
which on the face of it implies that they did have regard to their contents. Also in paragraph 3 they refer to the affidavit as corroborating the Notice of Appearance and say that they:
"placed the appropriate weight upon evidence that could not be the subject of cross-examination"
without distinguishing between the Notice of Appearance and the affidavits. It does seem to us, therefore, although it is not for us to forecast what may be the result of any appeal, that there is a point of law which Mr Wallington can raise that on the face of it the Tribunal did not consider whether to exercise and did not expressly say that they were exercising their discretionary power under Rule 12(2)(a) to extend the time for the lodging of those affidavits, and if so on what grounds.
The second point which it seems to us may be open to Mr Wallington as a point of law is that in paragraph 7, dealing with their findings on the issue of Mr Wallington's behaviour on the day in question, the Tribunal twice uses the phrase "could well". They say:
"The Tribunal could well believe that the Applicant, on that day, did behave in an excitable manner and could well have sworn at Miss Palazzetti."
It does seem to us that it may be arguable that that does not amount to an express finding that he did swear at Miss Palazzetti which was, as I have said, a crucial issue upon which, on the face of it, it may be that it was incumbent upon the Tribunal to reach a specific finding before going on to conclude that Mr Wallington contributed to the extent which they found to his dismissal.
For those reasons we shall allow this matter to proceed to a Full Hearing, but Mr Wallington must submit an amended Notice of Appeal within 14 days and there will be an Order for the Chairman's Notes of Evidence and for any other documents put in evidence, including the affidavits in question.