United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 127_94_2909

Appeal No. EAT/127/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29 September 1994

HIS HONOUR JUDGE J HICKS QC

MR D G DAVIES

MR J H GALBRAITH CB

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MR I HELLIWELL          APPELLANT

AURANQZEB IQBAL & CO          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR H SINGH

(Of Counsel)


 


JUDGE HICKS QC: Mr Helliwell was employed by the Respondents, Iqbal & Co, as a legal assistant and applied to the Industrial Tribunal for compensation on the basis of unfair dismissal.

The Tribunal found in his favour on the issue of unfair dismissal and indeed, they having found that he was dismissed, it was conceded by the employers that the dismissal was unfair. But the Tribunal then considered the issue of contribution - and it seems plain that they were addressing their minds to contributory conduct under Section 74(6) of the Employment Protection (Consolidation) Act 1978 - and reduced the compensation by the amount of 65% under that head. They then adjourned to a later date what they called the matter of remedy, and they made it plain that within that matter they included arguments which the Respondent wished to advance under what the Tribunal call the "Devis v Atkins" principle, that being a reference to the case of Devis v Atkins [1977] ICR page 662, which as we understand it addresses the question of what is the just and equitable amount to award in accordance with what is now Section 74(1) of the 1978 Act.

The Appellant seeks to appeal against the Tribunal's decision, not of course against the unfair dismissal finding in his favour but against the way they dealt with, and proposed to deal with, the issue of compensation. We propose to allow this appeal to go forward for a full hearing and would not therefore normally give the details which I have just given, but I have given them because although we propose to allow it to go forward we propose to make directions as to the grounds which can be argued. The circumstances are that the Notice of Appeal covers some 12 pages and sets out something like 50 paragraphs of "grounds of appeal". Mr Singh, who appears for the Appellant, accepts that that is an unsuitable document for the purpose of defining the arguable grounds of appeal and has referred us to his own written submissions. They summarise the grounds advanced by him under two heads, one of which in substance we think is a possible ground of appeal, but the other is the ground of perversity. We do not propose to allow the matter of perversity to go forward and therefore it is right to give reasons. Before I come to that I wish to formulate the grounds of appeal in the terms in which in our view they can properly be regarded as arguable and proceed to a full hearing. They would be two in number and the first is as follows:

"The Tribunal erred in law in failing, in accordance with the decision in Rao v The Civil Aviation Authority [1994] IRLR 240 to assess first what was the amount of the loss which the Applicant had sustained under Section 74(1) of the Employment Protection (Consolidation) Act 1978, including any deduction properly to be made under that subsection in accordance with Devis v Atkins [1977] ICR 662, and thereafter, in the light of that finding, to make their decision as to contributory conduct under Section 74(6) of the 1978 Act".

The second ground is that the Tribunal erred in law in making a deduction for contributory conduct without specifying the conduct which it proposed to take into account and giving the Applicant an opportunity to give evidence on the matter.

Those being the grounds which we propose to allow to go forward we deal with the proposed further ground of perversity, as to which Mr Singh's written submissions, after setting the background, say that the Respondent - that refers to Mr Iqbal himself - maintained that he was in the office on the morning of 11 May 1993, until documentary evidence and testimony from the Respondent's own witness proved that he could not be in the building at the time alleged. A similar point is made about the date of a letter.

Those are submissions about matters going to the credibility of the witnesses, in particular Mr Iqbal, and the fact is that the Tribunal carefully considered the respective credibilities of the principal witnesses, Mr Iqbal for the Respondent and Mr Helliwell, the Applicant, and found that they preferred the evidence of Mr Iqbal, and really it is not in our view an arguable ground of perversity that the Tribunal should have come to that conclusion on a matter which is peculiarly within their province and knowledge, having seen and heard the witnesses.

The next paragraph makes another point about credibility concerning the evidence of Mrs Charlotte Spalding and the same comment applies, as also to the next point which concerns the evidence of yet another witness, and the submissions go on to argue:

"Under all the circumstances the respondents Testimony and credibility ought to have been doubted"

That is the very point of credibility with which I have already dealt and in our view there is no arguable ground of appeal under the head of perversity, and for those reasons we order that this appeal proceed to a full hearing on the grounds of appeal only which I have indicated.