United Kingdom Employment Appeal Tribunal

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Cite as: [1993] UKEAT 233_92_1901

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BAILII case number: [1993] UKEAT 233_92_1901

Appeal No. EAT/233/92

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19 January 1993

Before

HIS HONOUR JUDGE J HICKS QC

MR J P M BELL CBE

MR J D DALY

MR I EDWARDS APPELLANT

B & Q PLC RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

APPEARANCES

For the Appellant THE APPELLANT APPEARING IN PERSON

JUDGE J HICKS QC: Mr Edwards, the Appellant, was employed by the Respondents, B & Q PLC, and was dismissed on 24 December 1990. He applied to the Industrial Tribunal on the basis that the dismissal was unfair but the Tribunal dismissed the application and he appeals against that decision and this is the preliminary hearing of this appeal.

The ground on which the employers dismissed Mr Edwards was complaints by a fellow female employee of harassment. He strongly denied, and denies, that allegation, but there seems to be one matter which he does not dispute, because he says that he was justified in his conduct, and that is that he continued to write letters to her after being told by the employers that they regarded that as unacceptable.

What the Industrial Tribunal had to decide, as always, was not what the Tribunal's view of the facts was - whether they considered that Mr Edwards had unacceptably harassed the person who complained - what they had to decide was whether the employers had genuinely dismissed him for that reason. They found that the employers had, and then they had to decide whether the employers in doing that acted reasonably in the terms prescribed by section 57 (3) of the Employment Protection (Consolidation) Act 1978.

What the Act provides is that the question:

".......whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether [in the circumstances] (including the size and administrative resources of the employer's undertaking) the employer acted reasonable or unreasonably in treating it [the reason which it took into account] as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case.]"

One of the grounds of Mr Edwards's appeal in his Notice of Appeal, although he has not pursued it as an argument, is that the Tribunal were wrong to take into account the size and administrative resources of the employers' undertaking. However, the truth is that that is one of the matters that they are expressly required by statute to take into account, so there is no criticism can properly be levelled against them on that ground.

As I have said, the matter before the Tribunal was not to decide whether Mr Edwards had been guilty of the misconduct which the employers alleged, but whether the employers had acted reasonably or unreasonably in treating the allegation against him as a sufficient reason for dismissing him. Now that there is an appeal against the Industrial Tribunal's Decision, again, it is not for us to decide whether Mr Edwards was guilty or not guilty of the conduct alleged against him. We can only decide whether the Industrial Tribunal erred in law in reaching the decision that they reached.

I emphasise those matters because it was apparent and very natural that at the end of his submission Mr Edwards made it clear that what he wished to do was to continue disputing this matter until the issue of his conduct was fully investigated and considered on the basis of all the relevant evidence, including that of the complainant. I am afraid that the truth is that the jurisdiction accorded to the Industrial Tribunal, and even more the jurisdiction entrusted to us, simply does not enable us to fulfil that desire. We have to answer the question that is put to us, whether the Industrial Tribunal erred in law, just as the Industrial Tribunal had to answer the question that was put to them: did the employer act reasonably or unreasonably in treating the reason which they had in mind - that is to say, Mr Edwards's conduct - as a sufficient reason for dismissing him?

Mr Edwards makes various criticisms of the Industrial Tribunal's handling of the case. One I have already mentioned; another was the conduct of the members of staff of the Industrial Tribunal. It is the case, as is recognised by the Tribunal in giving its Reasons, that there was a delay in preparing and issuing those Reasons, and there are also other matters of which Mr Edwards complains, but they all relate to conduct of the staff of the Industrial Tribunal and it is not for us to say whether they are established or not, we are not in a position to do so. However, it is plain that they cannot have affected the manner in which the Industrial Tribunal itself, the Chairman and his two colleagues, reached their decision and therefore cannot be a ground for appealing against that decision.

He also complains of the conduct of the employers in the proceedings that led up to the Industrial Tribunal hearing, in particular the fact that they failed to supply the documents and information which they should have supplied to him until the day before, or some period very close to, the date of the hearing. However, that was dealt with by the Tribunal by allowing him an adjournment and it appears that the Industrial Tribunal also reprimanded the employers, so it really is impossible to say that that reprehensible conduct by the employers prejudiced the hearing of his application to the Industrial Tribunal or constituted any error of law on the part of the Tribunal.

The remaining criticism by Mr Edwards, and as it seems to us the one that he puts in the fore-front of his appeal and which is the one which needs the most attention, is really a combination of two factors. One is that the hearing before the Industrial Tribunal that had been estimated in advance to last two days was in fact disposed of in something like hour and a half. The second, which is linked with it, is that the employers did not produce as a witness, as Mr Edwards had expected that they would, the complainant - the young lady who had made the complaints about his alleged harassment of her. He says that he was unable therefore to present his complete case.

As to the length of the hearing, it might well be a proper complaint about a Tribunal if some announcement had been made at the outset of the hearing that willy-nilly, regardless of how the matters proceeded, the Tribunal were only prepared to allocate a certain short time to the hearing such as one hour and a half. It does not appear that Mr Edwards alleges that anything of that sort occurred; it simply was the case that after the Respondents had called their evidence, which seems to have been limited to one witness - the store manager who had made the decision to dismiss - and after Mr Edwards had given his evidence and made his submissions, there was no more to be said and the Tribunal then proceeded to consider that evidence and those submissions and reached their decision. That is not in any sense, as we understand it, an improper curtailment of the hearing; it very often happens that hearings before Tribunals last a shorter time, and sometimes a longer time, than had previously been estimated. However, if the opportunity is given to the applicant to develop his case in the way that he wishes, in the terms of calling evidence and making submissions, then that cannot be a criticism of the conduct of the Tribunal and constitutes no error in law on their part.

So far as the failure to call the lady in question is concerned, the position as we understand it is first covered by the comments which I made at the outset, that the issue before the Tribunal was not for the Tribunal to decide one way or the other whether the complaints were made out. The issue before the Tribunal was whether the employers had acted reasonably, and that would include whether the employers had conducted adequate investigation of the complaint by this person in conjunction with Mr Edwards' response to it.

As to that, the Tribunal did consider whether there had been a proper investigation and did consider whether the employers had acted reasonably and came to the conclusion that, they say in paragraph 4 of their Reasons:

"4 .......the Respondents carried out a reasonable and thorough investigation and ...... reached their conclusion after giving the consideration to the points raised by the Applicant."

Therefore there was no error of law on the part of the Tribunal in the way that they dealt with that matter.

The other consideration that needs to be borne in mind when one is dealing with a criticism by an Appellant that the Respondent did not call before the Tribunal all the witnesses who had been expected is, that that in normal circumstances is not a situation which can go to the Appellant's disadvantage. The Appellant was able to give his evidence as to what had transpired between him and the young lady in question; she was not there to contradict him and that, as I say, is not a matter which therefore can have worked to his disadvantage.

Those are the reasons that Mr Edwards advances for wishing to pursue this appeal. We are driven to the conclusion, unanimously, that there really is nothing in any of them that would amount to an error of law on the part of the Industrial Tribunal, and that is the only question we are allowed to ask ourselves; we are not entitled to go into the question of what was the truth of the primary facts between Mr Edwards and the young lady. Therefore we must dismiss this appeal.