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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Shiveral v Foilwraps Flexible Packaging Ltd & Anor [1994] UKEAT 714_92_1907 (19 July 1994)
URL: http://www.bailii.org/uk/cases/UKEAT/1994/714_92_1907.html
Cite as: [1994] UKEAT 714_92_1907
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At the Tribunal
Before
HIS HONOUR JUDGE J HULL QC
MRS M L BOYLE
MISS R CHAPMAN
(2) GPMU
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellant MR B CARR (of Counsel)
Messrs Kershaws
Solicitors
160 Brompton Road
London SW3 1RP
For the Respondents MR V S ELTRINGHAM
Personnel Manager
Foilwraps Flexible Packing
Ltd
Ross Road
Weedon Road Industrial
Estate
Northampton NN5 5AX
JUDGE HILL QC: This case is an appeal from the Industrial Tribunal sitting at Leicester under Mr Bellis with two industrial Members, who sat on 18 August 1992. They found that the applicant, Mr Shiveral had been unfairly dismissed, although he was redundant. They found, in fact, the unfairness was caused by lack of sufficient consultation and that consultation would have made no difference.
Mr Shiveral had asked in his application form, which is page 10 of our papers, for reinstatement, as well as compensation and there is no record anywhere in the decision of the Tribunal or in the notes of evidence, which have been furnished to us by the learned Chairman, that the question of reinstatement was considered.
Mr Carr of Counsel, who has appeared before us and settled the notice of appeal on 2 October 1992, made this one of three grounds of appeal. The other two are now, in the light of the notes of evidence, abandoned, but this ground is persisted in in that there was no consideration by the Tribunal of the question of reinstatement. He says that that, of course, was a matter of importance to Mr Shiveral. Whether it is still a matter of importance may be a matter for debate. Mr Shiveral has, apparently, got a job now but he has had a substantial period of unemployment but Mr Carr says that this matter was not considered. That is in issue.
We were told by Mr Eltringham, personnel manager of the respondents, who did, unlike Mr Carr, appear before the Tribunal, that he represented the company. Mr Ireland, the trade union representative, appeared for Mr Shiveral and Mr Eltringham says that what happened was this. Towards the end of the hearing, the Chairman announced their decision, in accordance with the reasons which they have, of course, given and then said - this is what Mr Eltringham tells us:
"We now have to turn to the issue of reinstatement. Have you anything to say?"
and Mr Eltringham says that he answered to that:
"No."
Then, says Mr Eltringham, the Chairman turned to Mr Ireland. Mr Eltringham did not look at Mr Ireland and did not see him, so to speak, take any part in the debate, he did not hear him say anything or certainly does not remember him saying anything. The Chairman then said:
"In our view, re-engagement or reinstatement is not appropriate."
Mr Ireland made no further submission and, says Mr Eltringham:
"I can remember this as clearly as anything."
We are told by Mr Carr that his instructions, which are the instructions from Mr Ireland, who is sitting behind him, are quite contrary to that but he says that, even supposing that Mr Eltringham's recollection is correct and Mr Ireland is wrong on this point, then still the Tribunal should have enquired into the matter.
It seems to us that it is quite impossible to proceed on that hypothetical basis. It seems to us that, of course, there are various things that can be said. If Mr Ireland said nothing then it may be that the Chairman took the view that there was no useful evidence that could be adduced. It may be, on the other hand, that Mr Ireland made some indication that he would like to say something and was not properly heard. We have not been told that that is so. It may be that the Chairman and his colleagues felt that the evidence which they had heard, including the question apparently of advertising for similar jobs 6 weeks before, was something which they had well in mind. We simply do not know and we think in the circumstances with this keen difference of recollection between the parties as to what happened in front of the Tribunal and the further uncertainty about what view the Tribunal took of its statutory duty, of course, to consider the question of reinstatement, that we must not leave the matter like that and entertain the appeal on that basis. It is perfectly true, as Mr Carr quite rightly says, that there is no record of this matter in the decision or in the notes of evidence, but notes of evidence are just that. If there is no evidence there may be no note. Indeed, the notes do not purport to be a verbatim transcript of what is said by the witnesses and, a fortiori, of course, not what is said by the Chairman or the advocates. Some Chairmen record these matters, others do not. It is, if one may make one comment, rather unfortunate that Tribunals which often do consider the question of reinstatement or re-engagement, do not make an actual record that they have done that or of any submissions that are made to them on that topic.
We think that the proper course is to adjourn this matter and to ask the learned Chairman, first of all, to state to the best of his recollection as to exactly what happened regarding the matters which I have mentioned this short decision. Also, to invite the learned Chairman to consider whether this is a case in which since, if the appeal is successful, it might very well be that the matter would be remitted to the same Tribunal, whether he should consider even at this late date whether it would be proper, in all the circumstances, extending time and reviewing the decision to the extent at any rate, if he thinks it right, of hearing any further submissions on this question of reinstatement and reaching a decision on that matter. That is entirely a matter for the Tribunal and not for us to tell the learned Chairman and his Members what to do about that but it might be that, if it is suggested that they have not received all the submissions which they should, or the evidence which they should, that the Chairman would think it right to entertain such an application and for him and his Member to reconsider the matter. That, again, is for the Chairman and for the parties, if they wish to make a representation to the Tribunal about that.
However that may be, we are not prepared to continue with this appeal at the moment until we have the benefit of the Chairman's recollection, if he can give it to us, of exactly what happened before him concerning this matter of the question of reinstatement.