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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> British Coal Corporation v Palmer [1994] UKEAT 679_93_0405 (4 May 1994)
URL: http://www.bailii.org/uk/cases/UKEAT/1994/679_93_0405.html
Cite as: [1994] UKEAT 679_93_405, [1994] UKEAT 679_93_0405
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I N T E R N A L
At the Tribunal
HIS HONOUR JUDGE HULL QC
MR J H GALBRAITH CB
MR D A C LAMBERT
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellants MR B THAKI
(OF COUNSEL)
Messrs Nabarro Nathanson
The Lodge
South Parade
Doncaster
DN1 2DQ
For the Respondent MR R C SMITH
(OF COUNSEL)
Messrs Dean Thomas & Co
Clumber Chambers
120 Bridge Street
Worksop
Notts S80 1HU
JUDGE HULL QC: In this case British Coal Corporation appeals to us from a Decision of the Industrial Tribunal sitting at Nottingham on 25 February, 22 April and 2 June 1993, under the Chairmanship of Judge Coulson who sat with two Industrial Members. They upheld a complaint by Mr Palmer, a Deputy at Bevercotes Colliery, who complained to them that his dismissal on 12 August 1992 had been unfair.
In May 1992 British Coal Corporation had adopted a new policy with regard to one particular offence - that of sleeping on duty in the mine. It is, of course, contrary to the regulations that such a thing should happen and it is therefore technically an offence, but it had been treated in the past as a matter where dismissal might or might not result. In May 1992 British Coal Corporation thought it right to make it plain that in future any instance of such behaviour would, in general, be treated as gross misconduct and would lead to summary dismissal.
The reasons for that decision are self evident. A man who sleeps on duty may well be imperilling the lives or safety of many others and there are not many more responsible jobs than those of men who are responsible for the safety of others in mines. That was the policy adopted and thereafter, before the incident which we are concerned with, seven or eight men in this very coalfield had been dismissed for sleeping in the mine.
What happened in the present case was that on 10 August 1992 the assistant manager of the colliery, Mr Bishop, and Mr Fox, an electrical engineer, were in the mine. They came upon Mr Palmer and it appeared to Mr Bishop that Mr Palmer was asleep. He was seated in the mine with his eyes closed (he later said that he was merely thinking). Mr Bishop and Mr Fox shone their cap lamps on him and in due course Mr Palmer opened his eyes and there was a conversation between them.
It was suggested that he had been asleep and he denied that. Mr Bishop was not prepared to overlook this incident, nor did he accept the denial, and in due course it was reported. Statements were taken from Mr Bishop and Mr Fox and the Colliery Manager, Mr Bell, embarked on an enquiry. Statements were taken from two others who might have been able to throw light on the matter, Mr Waddington, an electrician, and Mr Hutchinson, a fitter, who were both on duty nearby. In the event their statements did not carry the matter much further.
There was a disciplinary hearing held by Mr Bell on 12 August (a report of which was included in the papers before us). Present at the disciplinary interview was Mr Bell, an Assistant Manager (Personnel), (Mr Marsh), Mr Palmer, and two representatives of his trade union, NACODS (National Association of Overmen, Deputies and Shotfirers). The interview appears to have been conducted in a perfectly regular way. The statements were not shown to Mr Palmer or his representatives and in the course of the interview it is interesting to note what Mr Palmer told his manager and the others who were present:
"Palmer confirmed that he was sitting in an upright position and Mr Hunt [one of the trade union representatives] stated that if this was the case, then he could not be asleep. If asleep, he suggested that Palmer's head would be either forward or back. The position he was would not allow him to sleep."
There was an adjournment and at 3.30 pm Mr Bell reconvened the interview. He said that two people had satisfied themselves that Mr Palmer was asleep, and -
After taking everything into consideration, Mr Bell confirmed his decision that Palmer was asleep and consequently he had no alternative but to summarily dismiss him as he had committed an act of gross misconduct."
A letter of the same date (12 August 1992), written and signed by Mr Bell, confirmed the decision to dismiss Mr Palmer.
At that stage the statements which had been taken from the witnesses, particularly Mr Fox, were not shown either to Mr Palmer or to his representatives. Another point which I would underline is that there has been no suggestion at any time by, or on behalf of, Mr Palmer that dismissal was - if he had been asleep - other than a fair and proper response within the discretion of the employers. It is a serious matter and a serious penalty can properly be imposed for it; that is accepted. The corollary, of course, is that where a serious charge is made and a serious penalty is involved, the employer must be astute to conduct the proceedings in every way possible as regularly and fairly as may be.
Following British Coal's disciplinary procedure an appeal was made. A notice of appeal was given and the hearing took place on 3 September 1992 (a copy of the notice of appeal and a report of the proceedings was included in the documentation before us).
At the appeal hearing, presided over by Mr Longden, the Group Director, Mr Crisp, Assistant Group Director (Operations), Mr Northard, Group Employee Relations Manager and Mr Bell, the Colliery Manager, Bevercotes, were present. There were two trade union representatives, Mr Hilton and Mr Hunt, and Mr Palmer. At the outset there was some objection to the witness, Mr Bishop, and it was suggested that he had some experience of Mr Palmer which made it unfair. That was gone into, and as there was nothing in that it was not pursued on appeal. Mr Bishop's position was not as a member of management but as a witness. There was also some suggestion that Mr Fox had expressed his misgivings about what had happened but that was also cleared up. Mr Fox's misgivings were not due to any unfairness but to his dislike of being associated with the dismissal of a fellow employee.
The appeal was heard and again matters seem to have been conducted in a regular way but there came a point where -
"Mr Hilton said that he had not seen all of the interview statements."
It is agreed that what he meant was that he had not seen any of the interview statements. At this point Mr Northard produced the documentation and handed it to Mr Hilton. There was an adjournment for a short time while Mr Hilton and his colleague considered these statements.
We should say in parenthesis that apparently there is a general policy of not disclosing statements in cases like this because of the fear that there might be intimidation. It is not suggested that Mr Palmer would have been a party to anything like that but the general policy was there. It was not invoked on this occasion and, indeed, it would not have been useful to do so because the names of his accusers were already known to Mr Palmer.
The statements contained some apparent inconsistencies about timings and one or two other matters. Mr Hilton, having had the opportunity of looking at the statements, pointed to some of these matters:
"Mr Hilton referred to the seated position Mr Palmer was alleged to have been in and asked how Mr Fox and Mr Bishop could have shone their lights into his eyes if he was seated upright. This position would throw his head forward, thereby making it impossible for the light to be shone in his eyes."
That was a comment made by Mr Hilton and it was followed by:
Mr Hilton said Mr Palmer had gone up the gate to organise the job. He had sat down and closed his eyes to think about the job in hand. He had not gone to sleep. He added that there was ambiguity in the statements given by Mr Fox and Mr Bishop regarding this."
Again, it is agreed that what is meant by that is that there was an inconsistency between the two statements, as, indeed, there was, and Mr Hilton, albeit at this late stage of the proceedings, was commenting on that.
At the end of the appeal hearing Mr Longden explained that as Mr Hilton had raised contentious points, he wished to undertake further investigations and adjourned the hearing so that he could conclude such investigations. He said that Mr Hilton and Mr Palmer would be notified of the outcome as soon as his enquiries were completed. No criticism was made of the fact that Mr Hilton had raised his point at a late stage. Mr Hilton had envisaged it in the hearing by Mr Bell a few days before when he had raised the question of the position of Mr Palmer's head and having seen the statements was now pointing out an inconsistency dealing with that point. Mr Longden, very fairly, said that he wished to look into it before he reached his final decision.
During the adjournment the management team, Mr Longden and his three very senior colleagues, continued their meeting and formulated certain questions they wished to ask. One of those questions, not surprisingly, concerned the apparent inconsistency of the statements of Mr Fox and Mr Bishop about Mr Palmer's position when he was allegedly found asleep. In the questions to Mr Fox it was pointed out that there was a mistake in the form and this was put right before the questions were duly asked together with others. Mr Longden and his colleagues were anxious to investigate all the matters of doubt and difficulty and were not directing their minds to this point only.
Mr Bishop was seen the same day and this was recorded as follows on p.49:
"During the appeal hearing a question was raised about Mr Bishop's statement on the 11th August, 1992 [the hearing before Mr Bell] which read [Mr Palmer] 'laid back with his eyes closed'. Mr Northard asked Mr Bishop to describe how Mr Palmer was positioned on the seat.
Mr Bishop demonstrated the seated position. Mr Palmer was seated upright his head tilted back."
That was what Mr Bishop said. Mr Fox was then seen by Mr Northard and Mr Bell, also on the same day, and he was asked the questions they had planned to ask him, including questions about timings. It is recorded at p.51 that:
"Mr Northard said that during the appeal hearing a question was raised about your statement of 11th August, 1992 which reads "sat down with his eyes closed asleep". Will you describe to me how Mr Palmer was positioned on the seat.
Mr Fox demonstrated the seated position. He said Mr Palmer had been seated upright with his head slightly down.
Mr Northard asked whether Mr Palmer's chin had been up or down at the time.
Mr Fox replied that it had been slightly down."
That was a different version of Mr Palmer's position and this was the very point that Mr Hilton and Mr Hunt had been concerned about.
There was a further discussion but it was not attended by Mr Palmer or by the trade union representatives; it was attended by Mr Longden, Mr Crisp and Mr Northard who discussed the matter amongst themselves (p.52). It starts off by saying:
"Following the appeal hearing held during the morning, questions were raised by Mr. Hilton which required an adjournment of the hearing to enable interviews to be held at Bevercotes Colliery with Mr D C Bishop, Deputy Manager (Operations) and Mr I W Fox, Unit Electrical Engineer. The interviews were conducted by the Group Employee Relations Manager with Mr D Bell, Colliery Manager present.
Mr Northard reported his discussion at Bevercotes.
...........
In discussion it was agreed that the only substantial discrepancy between the statements concerned the position of Palmer's head when the alleged incident took place. All the other factors correlated reasonably well. As far as Messrs. Bishop and Fox were concerned, Palmer was asleep.
..........
The questioning of Messrs Bishop and Fox had been carried out in isolation and their statements correlated substantially."
It was said towards the end:
"However, no new facts had been brought forward that demonstrated that Mr Bell's decision had been flawed."
It was agreed that a final decision would be made after the weekend and the final decision was, as notified to Mr Hilton and Mr Palmer on 11 September 1992, that the dismissal had been upheld.
Here was a point that had been raised at the outset, even before the statements had been seen by the trade union representatives, at the hearing before Mr Bell. As every advocate knows one of the very few ways in which evidence can be challenged, if there is more than one witness, is by asking each witness to go into details even if they do not seem to be immediately relevant. However, if it emerges that there is an inconsistency between two witnesses that is a matter which entitles the advocate to say, on behalf of his client, that they cannot both be right; one of them has to be mistaken. Nor on this occasion could this matter of how Mr Palmer was seated and how he was turning his head be said to be immaterial. On the contrary, in view of the evidence of Mr Fox and Mr Bishop that they both shone their lights for a very long period - a minute or more at least - on the face of Mr Palmer as he lay sleeping, the attitude in which he was holding his head was very material because they said that it was only after that that he appeared to wake up and notice what was going on.
At the conclusion of this hearing and the further investigations, which were undertaken in the spirit of honest enquiry and fairness by the management, these further statements containing answers to the further questions were not disclosed either to Mr Palmer or to the trade union representatives.
Now there are certain matters which are axiomatic and we have been taken by Counsel again through many of the leading cases on this topic. Nothing we say can detract from the authority of the cases, decided by most eminent Judges, on the duty of fairness which arises in such cases as this. Under section 57(3) of the Employment Protection (Consolidation) Act 1978 it is provided that if the employer shows what the reason is for the dismissal, where the employer has fulfilled the requirements of section 57(1), then:
"...... the determination of 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 ........... the employer acted reasonably or unreasonably in treating it 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.]"
If the employee is charged with something that is a disciplinary offence such as a breach of duty to his employer, then first and foremost the employer, if he decides to dismiss or take other disciplinary action, must be satisfied in his own mind that the employee is guilty of what he is charged with. If the employer is not satisfied of that then he is not acting in good faith. In arriving at that conclusion, in which he may or may not be right because all humans can err, he is bound to conduct a reasonable enquiry. He must reach his conclusion after conducting a reasonable enquiry to ascertain the facts so far as he reasonably can. He must hear the employee accused and hear his explanation and if the employee is to give a proper explanation it is necessary that he should be given a clear indication of what is alleged against him.
Sometimes those matters are referred to as the "requirements of natural justice" which is a convenient way of putting it but, of course, the "requirements of natural justice" vary according to the nature of the enquiry and all the circumstances of the case. The matters I have mentioned are generally regarded as the irreducible minimum in the case of an employee who is in danger of being dismissed. The questions of what must be explained to the employee, and how he is to be acquainted with what is said against him, must depend on all the circumstances. It may be necessary in some circumstances for him to be shown the statements of any witnesses, if, indeed, there are any written statements. Certainly, he must be told the substance of what is in those statements and he must then be given a fair and proper opportunity to answer them.
Fairness may demand that he is given an opportunity to confront those who are accusing him. It may even demand, although this is not the general rule, that he is allowed to cross-examine them. Generally, confrontation and cross-examination are not required for the employer is not conducting a court, he is conducting an enquiry and it is very often enough for him to satisfy himself of the matters by making enquiries and then to acquaint the employee with what is alleged against him. Everything must depend on the circumstances.
In this case the employer went off after the appeal and, in a very conscientious and fair-minded way, looked at the allegations which had been raised by the union representatives and which, indeed, had probably occurred to the management themselves. They looked at them and having satisfied themselves about that, without any word to the employee or his representatives, reached a decision. Mr Palmer was dismissed and he made his complaint to the Industrial Tribunal on 23 October 1992. British Coal Corporation responded and the hearing was held on 25 February 1993, 22 April 1993 and 2 June 1993.
It is necessary to refer to the Decision of the Industrial Tribunal. Having set out the history of the matter, the Tribunal dealt with the appeal hearing; the termination of the hearing; and the fact that the management wanted to make further enquiries; and they say: "9. It seems that Mr Bishop and Mr Fox were interviewed the same day, 3 September, and were asked these questions [I have already recited the questions] and made replies and there were statements from each of them as to what they had said earlier about the sitting position of the applicant which had seemed rather difficult to reconcile [that had been pointed out by Mr Hilton] in that on 11 August Mr Bishop had said that Mr Palmer was laid back with his eyes closed and Mr Fox said that he been sat down with his eyes closed.
10. On 3 September these earlier accounts given by the two men became even more difficult to reconcile, because on this later date Mr Fox confirmed his earlier statement that the applicant was sitting upright but now added that his chin was slightly down and that he could see his face, but not clearly. Mr Bishop, on the other hand demonstrated a sitting position for the applicant in which he was not laid back, but was sitting upright with his head tilted backwards."
11. Although these accounts of the witnesses as to what they had seen underground differed from each other and Mr Bishop's account seemed to differ from his earlier account, the details of their evidence to the members of the appeal panel who saw them in the adjournment were never relayed to the applicant or his representative. Instead, the details were merely relayed to the appeal panel members who apparently decided that they could reach a decision, on the material before them without disclosing the result of their enquiries or giving any opportunity of further questions or submissions by the applicant's representative. Their decision was to reject the applicant's appeal and confirm his dismissal.
12. In the above circumstances we find it impossible to be sure that if the respondents had made the written statements of Messrs Bishop and Fox available to the applicant and his representative at the disciplinary hearing and also given them a chance to question them on their statements generally, the result of disciplinary proceedings would have been the same. The same comment applies to the matters discovered during the recess in the appeal proceedings.
13. For these reasons although we are quite satisfied that Mr Bell, the Colliery Manager, had made proper investigations and on the material before him, including what the applicant said to him, had a genuine belief that Mr Palmer had been found asleep underground, the proceedings adopted here, both in the disciplinary hearing and particularly in the appeal proceedings were not consistent with fairness to the employee. In the reported case Louies -v- Coventry Hood & Seating Co Ltd (1990) ICR 54, where Mr Justice Wood reviewed some of the earlier decisions including British Home Stores -v- Burchell he said this:-
"It seems to me that it must be a very rare case indeed for procedures to be fair where statements have been given in writing by witnesses and upon which in essence the employer is going to rely that an employee should not have a sight of them or should not be told very clearly exactly what is in them or possibly have [them] read to him".
14. For procedural reasons, therefore, we have decided this dismissal was an unfair one. The Tribunal adjourned the hearing to 2 June 1993 and then at that date turned its attention to the question of remedies.
Mr Thaki, to whom we are very grateful for the thoroughness, the brevity and also the exactness of his submission, criticises what is said in paragraph 12. He says that here the Industrial Tribunal are doing the very thing which Polkey -v- Dayton Services Ltd, the celebrated case to which we have been referred, says should not happen. The Industrial Tribunal were saying to themselves "would the result of disciplinary proceedings have been the same if matters had been otherwise?" and answering their own question then.
Mr Thaki had to confront the situation that that is normally an error, if it is made, which is in favour of the employer because under The British Labour Pump decision the employer sometimes sought to escape from what would otherwise be an unfair dismissal by saying that fairness would have made no difference. Therefore, the error, if there was an error by the Tribunal, was an error in favour of the employers and hardly one of which Mr Thaki, on behalf of British Coal Corporation, could complain. Mr Thaki said that that was part of the submission showing that the Tribunal were addressing their minds to the wrong question.
It seems to us that in paragraph 12 this Tribunal were not addressing their minds to the wrong question at all. What they were saying to themselves was this: "was this a matter of complete inconsequence - this failure to show the statements and reveal to Mr Palmer and his representatives the result of further enquiries? No, it was not a matter which anybody could say would obviously make no difference". It seems to us, therefore, that it was a proper question for themselves to ask. Is there here a substantial departure from fairness or is it simply a technical, fault-finding, petty point to make? No, it is not, they say. Why, we ask ourselves, should they not make that point in the course of their intellectual journey to the result of the case? They were entitled to ask themselves whether it was a petty point of inconsequence or whether it would have made a difference and they found that it would or might have made a difference.
To go forward, they adjourned to consider the question of remedies and at para 15 they deal with that quite different matter.
"15. Before a remedy can be given in a case such as this, we have to decide whether if the procedures adopted had been fair, the applicant would still have been dismissed. If we conclude that even with a fair procedure he would still have been dismissed and dismissal would then have been appropriate and reasonable, then no remedy or relief would follow a determination of unfair dismissal other than a declaration that the applicant had been unfairly dismissed. After considering this matter, the Tribunal has decided that it cannot say that if the procedure had been fair as described in the quotation above from the Louies case, dismissal may not have taken place. Indeed we have decided that if proper procedures had been adopted, there was still a reasonable possibility of a fair dismissal. On balance we put the chances of this at one third, this is a matter which we will have to consider in connection with remedy."
And in due course they did. They thought it right to reduce the compensation, which in due course they awarded, by one third. In adopting that approach they were following the approach which was commended by the speeches of the House of Lords in the Polkey decision; what was said by Lord Mackay and Lord Bridge. They were applying their minds to the substantial question: would fairness have made any difference? What is said in paragraph 12, although it could be misinterpreted, is, in our view, simply applying their minds to the question, is this a substantial breach of what appears to be fair procedure?
In the light of that rather lengthy rehearsal of the facts, we now turn to submissions which were made to us by Mr Thaki on behalf of the British Coal Corporation. He said that the Industrial Tribunal adopted a wrong approach to the question which they had to ask themselves. He said that the Act requires the employer to act reasonably in section 57(3). Instead of that, he said, they adopted the criterion of unfairness to the employee and that is something quite different. Paragraph 12 shows that that wrong approach is being adopted. When asked to be as incisive as he could, Mr Thaki said, "we say that the employer can act unfairly without it being unreasonable and that fairness to the employee is wholly irrelevant".
It is easy to see the logical basis on which that submission would start; the premise is that what has to be studied is the language of the statute and the question is not unfairness to the employee but fairness in the sense of whether the employer acted reasonably. It does seem that in many of the decisions and in particular the Louies decision, the Courts and this Tribunal have equated a fair procedure with reasonableness. It is very hard to see, in the ordinary use of language, that a person who acts unfairly in an objective sense can be said to be acting reasonably in such an important matter as deciding whether to dismiss an employee. It is essential that he should act fairly in conducting his enquiry, that is trite. Fairness may make different demands on different occasions and in different contexts.
Mr Thaki went on to say that here there was a serious error in the reasoning of the Industrial Tribunal: they isolated the procedure and the fairness of the procedure from the overall question of reasonableness. He says that when you consider what the employer has done, it is not for the Industrial Tribunal to substitute their judgement for that of the employer. It is for the employer to carry out what appears to him to be a fair procedure and, indeed, any employer who is in touch with proper ideas of employee relations will have a set procedure for discipline. This Tribunal is not going to tell employers what procedure they should have and how they should conduct themselves when this Tribunal - and Higher Courts - have said that it must always depend on the exact circumstances of the cases.
Mr Thaki says that the prohibition of the Tribunal substituting its own judgement for that of the employer extends not only to the question of the seriousness of the alleged offence or the penalty imposed, which must be within the band of reasonableness, but to the procedure itself. He says that this Industrial Tribunal made the mistake of applying the criterion of reasonableness not to the procedure but only to the end result.
There is no dispute that dismissal was within the range of reasonable responses of this employer, if they reasonably and fairly found that the offence was made out. So we ask ourselves whether that was a just criticism of the decision of this Industrial Tribunal. It appears to us that that is not made out. It appears to us that this Tribunal was not saying, "we substitute our judgement and we do not think it fair". They were saying that it is impossible to say that this is a matter of no consequence and they were applying Louies' case and saying it seems that it must be a very rare case indeed for procedures to be fair where statements have been given in writing by witnesses upon whom the employer is going to rely, that an employee should not have sight of them or not be aware of their contents. They said in paragraph 13 (having set out the very just remark that Mr Bell had made proper investigations):
"...... the proceedings adopted here, both in the disciplinary hearing and particularly in the appeal proceedings were not consistent with fairness to the employee."
That is not saying "we are substituting our own judgement; we would not have conducted them in this way", it is saying that something is not consistent with fairness to the employee. It is saying that it falls outside the range of options of an employer and shows unfairness - that is, unreasonableness. We think that this Tribunal was entitled to form that view.
Mr Thaki points out, quite justly, that the Tribunal did not expressly say that this fell outside a reasonable band. It seems to us that it is virtually synonymous to say that this was not consistent with fairness to the employee.
We want to make it quite clear that we are accepting Mr Thaki's submission that it is not for the Tribunal to say what procedure should be adopted, any more than to say that they would award the same penalty, or whether, in their view, the offence is deserving of dismissal. Those are all a matter for the employer and it is, as Mr Thaki has said, for the Tribunal to interfere only if, in their view, what is done by the employer falls outside the reasonable range.
We do not think, on the just meaning of this decision, the Tribunal are applying two separate tests; first of all saying the hearing must be fair - "reasonableness" does not come into that - and then going on to consider the ultimate penalty and saying it is there that the bands of reasonableness apply.
Mr Thaki pointed out that one of the matters which the Tribunal mentioned was the possibility that Mr Palmer (or his representative) had not been given the chance to question Messrs Bishop and Fox on their statements. It is true that in many authorities, and in particular Ulsterbus Ltd -v- Henderson, it has been said that cross-examination of a witness will not be a normal part of the employer's enquiry. It is said in Ulsterbus Ltd -v- Henderson [1989] IRLR 251, in the text at para 21:
"What the Tribunal appears to be suggesting is that in certain circumstances it is incumbent on a reasonable employer to carry out a quasi-judicial investigation with a confrontation of witnesses, and cross-examination of witness. While some employers might consider this to be necessary or desirable, to suggest as the Tribunal did, that an employer who failed to do it in a case such as this was acting unreasonably, or in the words of Lord Denning, acting outside '... a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view,' is in my view insupportable."
If we thought that this Industrial Tribunal was saying that this dismissal was unfair because Mr Palmer was not accorded a chance to cross-examine either by himself, or by his representative, then clearly that would be going too far. Everything has to depend on the circumstances. Clearly, if the statements of Messrs Bishop and Fox had been shown to the union representatives at the hearing, it might have appeared to them that they should say to the management "this is an exceptional case, we should be allowed to question Mr Bishop and Mr Fox face to face about this because these explanations do little to elucidate the matter".
It might well be that management would have said, "yes, things seem to have gone wrong here, you should have seen the statements at the outset and we think you should be given the chance to question the witnesses on this point". It may be that the employers would have said "no, that is going too far, you can comment on them to us and Mr Palmer can say what his recollection is".
However, Mr Palmer and his representatives were deprived of that opportunity and that was something that the Industrial Tribunal thought was unfair. We think that that is the right way to read their decision - not saying automatically that there should be an opportunity to cross-examine in this case.
We do not, therefore, accept the submission that either the Tribunal failed to direct itself correctly on the law or it improperly separated the question "procedural unfairness" from the question of "substantial unfairness" and applied the wrong test to procedural unfairness; or that it was laying down an improperly high standard by saying that this was a case in which the employers should not merely have disclosed the statements, but should have allowed cross-examination to take place. What they did decide was that in the circumstances it was unfair, that it fell outside the band of fair responses of the employer, that they decided not to disclose these statements at the first disciplinary hearing and not to disclose the amplification of them, which was obtained by management after the appeal hearing, to Mr Palmer and his representatives.
We think that read justly and fairly, that is what this Tribunal were saying and they were entitled to say that. They did not go further and commit the errors which Mr Thaki has said they did and it boils down eventually to a just and fair reading of the decision of the Industrial Tribunal in the light of all the facts. We do not doubt the correctness of the authorities which were cited to us but we do say that they do not apply to this decision which has been read to us and which we have read ourselves. We think that Mr Thaki's analysis of the decision is faulty and that it is only on the basis of a faulty analysis of this decision that it is possible to criticise it by reference to the Polkey and Ulsterbus decisions.
In those circumstances we are obliged to dismiss this appeal and say that no error of law is discovered by us.