United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 764_93_0911

Appeal No. EAT/764/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9th November 1994

Before

HIS HONOUR JUDGE J BULL QC

MR P DAWSON OBE

Ms M EXLEY

---

J BLAKE & CO LTD          APPELLANTS

MR J D HART          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellants MR M McPARLAND

(of Counsel)

Messrs Davies Wallis Foyster

Solicitors

5 Castle Street

LIVERPOOL L2 4XE

For the Respondent MR S GORTON

(of Counsel)

Messrs Halsalls

Solicitors

47/48 Hamilton Square

Birkenhead

Wirral

Merseyside L41 5BD


 


HIS HONOUR JUDGE BULL QC This is an appeal against decisions of an Industrial Tribunal sitting at Liverpool chaired by Mr A M Coventry, in 1992 and 1993. The Tribunal sat on 8th January 1992 whereby it unanimously upheld a complaint by the Appellant that he had been unfairly dismissed. The Full Reasons were sent to the parties on 9th March 1992, with an indication that the question of remedy remained a live issue which, in default of agreement, would be considered by the Tribunal on a fresh date to be set for a hearing to deal with remedy only. The Tribunal reconvened on 19th October 1992 and 22nd April 1993 and made an order by way of compensation for unfair dismissal in the sum of £6,960.50. The summary reasons were sent to the parties on 3rd June 1993. Full Reasons for the decision as to remedy was sent to the parties on 14th September 1993.

The Appellant employers appeal upon the grounds that, first, the Tribunal erred in law in refusing at the remedies hearing on 19th October 1992 to admit evidence of conduct of the Respondent employee before his dismissal which was said to be relevant to proper assessment of compensation, in the form of evidence from a Mr McDonald; secondly, that they failed to give any or any adequate reason for so doing; thirdly, that the Tribunal failed to grant the Appellants a review of the decision of 27th May 1993 on the basis that the decision was made without the opportunity to make further representations after the remedies hearing of 19th October 1992 had been adjourned to enable the Respondent to put further documents before the Tribunal.

The cross-appeal launched by the Respondent is upon the basis that having made a finding of unfair dismissal, the Tribunal was under a mandatory obligation to make a basic award, which it appeared to have overlooked.

This is a case which appears to have generated a great deal acrimony between the two sides. The facts as found by the Industrial Tribunal are that the Appellant Company are the Ford Motor Company distributors in the area, and a well-known firm of garage proprietors, having one of their branches at Hind Street in Birkenhead. It was there that the Respondent was employed as a car salesman from 1st September 1986 until 20th July 1991 when he was dismissed. The Respondent conducted a transaction in relation to a Nissan Micra motor car with a customer named Alan Hebden. The order form demonstrated that Mr Hebden agreed to pay £2,800 for the Nissan, it being agreed that his Volkswagen Derby would be accepted in part exchange. Mr Kirkham, the Business Manager of the Appellant Company telephoned Mr Hebden and asked how he intended to finance the balance of £2,800. It was during that conversation that Mr Hebden insisted that his agreement was to pay £2,600 and not £2,800. On Saturday 20th July 1991, Mr Hart was called in to see the Sales Manager, Mr Melia. After that meeting the Respondent was dismissed for having bought the part-exchange vehicle himself, and proposing to dispose of it, and making up the value of the car by £200.

The Tribunal directed itself in its analysis upon the well known principles in British Home Stores v. Burchell [1978] IRLR 379 and Weddel v. Tepper [1980] IRLR 97. They concluded at paragraph 12:-

"... when one comes to consider whether, in all the circumstances, the case was investigated to the extent that it ought to have been, then the answer must be a negative one, and resoundingly so. That links up with the procedure adopted at the disciplinary interview by a Manager who, regrettably has had to admit to the Tribunal that he was not familiar with the Company's Disciplinary Rules and Procedures which, in themselves, are of course perfectly proper and adequate. It appears to the Tribunal and it so finds, that Mr Melia did not approach the problem free from preconceived ideas of guilt. The meeting was hurriedly carried out, Mr Kirkham's presence served no useful purpose, there was confusion and bad temper, and a lack of opportunity for the applicant to prepare his explanation of events. The laid down procedure was not even followed, which is quite inexcusable. The applicant was never, either at the hearing or subsequently, referred to his right of appeal. The foregoing matters must, inevitably, lead to a finding of unfair dismissal. ..."

The employers contended before the Tribunal that whilst the order form showed an amount due of £2,800, the evidence of the customer, Mr Hebden, was that he agreed to pay £2,600. The Tribunal had to investigate how that discrepancy arose. The Tribunal recorded Mr Hart's explanation before them at paragraph 11(h):

"... "I told the customer that I knew someone who might be prepared to pay a little more for his own car than the trader whom Blames knew and that if the customer agreed the purchase could go ahead with him paying Blakes £2,600. He agreed. The intention was to discount the vehicle which Blakes were selling from £3,295 to £2,800 which I submit was very common and perfectly acceptable procedure. The customer would then have been put in touch with someone to buy his own car for £200 failing a private sale of the part-exchange vehicle. This is something which is frequently used to avoid the situation arising where the customer tells us that he can sell his own car privately. I completed the order form repeating to the customer that were proceeding on the basis that there was no part-exchange deal and the section of the order form referring to part-exchange was struck through by me in front of the customer who then signed the order form.""

The Tribunal concluded that "the deal was not straightforward or uncomplicated but was not such as, inescapably, to lead to a conclusion of actual dishonesty".

At that hearing the Tribunal made an initial estimate of the Applicant's blame at 30% and adjourned the question of remedy for a further hearing if there was no agreement between the parties.

The Tribunal reconvened on 19th October 1992 and 22nd April 1993, considered the evidence which had been given and correspondence and additional information which came to light subsequently and made an award of £6,960.50. The summary reasons were sent to the parties on 3rd June 1993. The full reasons in relation to this decision were sent to the parties on 14th September 1993. The solicitors acting on behalf of the Appellants had written a letter dated 8th June 1993 indicating that their understanding was that after the adjournment of 19th October 1992, there would be a further hearing for representations to be made in respect of the amount of the award. The Tribunal dealt with these matters as follows in paragraphs 3 and 4 of their Reasons:-

"3. In relation to the foregoing matters, the Chairman has both consulted his Members as to their recollections of the hearing on 19 October 1992, and consulted the relevant notes of evidence. Having done so the Tribunal is firmly of the view and finds that there was absolutely no question of there being any further full hearing to determine compensation. The parties had had the opportunity to reach an agreed settlement, if that proved possible, failing that (and in the event no settlement was reached) the Tribunal was to meet again, for a remedy hearing, to determine what the compensation should be, and that was arranged for, and did take place on, Thursday 19 October 1992 following which after a meeting of the members of the Tribunal in chambers on 22 April 1993, a further Decision, in summary form, was eventually promulgated. A Decision was not reached on 19 October 1992 because it was felt by the Tribunal that, before a final decision was reached, it should see some written evidence as to the present state of the applicant's business. In the period between 19 October 1992 and 22 April 1993, the applicant did deposit, with the Tribunal, as arranged at the conclusion the hearing on 19 October 1992 Accounts and other documents relation to his new business. These were available for inspection by the respondent and were, in fact, seen by them, but no request for any further full hearing to assess compensation was sought. That being so, the Tribunal proceeded with its Decision, as to remedy, as already referred to above.

4. As to the further comment made in the respondent's Solicitor's letter of 8 June 1993, namely:-

"Further, bearing in mind we were awaiting a recent decision in respect of why our client's submissions were rejected at the hearing of 19 October 1992, would you kindly provide us with full reasons for the dismissal".

the Tribunal would wish to make it quite clear that no further separate written Decision to deal with that matter in detail was ever contemplated.

At the hearing in question, the matter of contributory fault was again raised. We say "again" because the matter had previously been referred to in the Decision of the Tribunal, promulgated on 10 March 1992, dealing with the hearing of the Tribunal, to determine liability, which took place on 8 January 1992 when a provisional assessment of 30% was indicated by the Tribunal. Arising out of paragraph 10 of that Decision, evidential matters were initially raised at the hearing on 19 October 1992 as to how that hearing should proceed. A decision on the point having been given, the hearing then proceeded straight away to hear some further evidence from the applicant. No further objection was raised to that course of action. Had it presented some insuperable obstacle or continuing disagreement then, clearly, the proceedings on that day could have been brought to an end pending a formal written Decision. That was not done, and the hearing proceeded to a conclusion by way of submissions from Counsel for the applicant and the respondent."

What lies behind the argument addressed to us is that some two months after the hearing the Appellants discovered what they considered to be misconduct of a similar nature by Mr Hart and they sought to adduce evidence of a transaction between Mr Hart and a Mr McDonald which they contended was relevant to reduce the award made to Mr Hart. An important consideration is what occurred before the Tribunal on 19th October 1992. We were invited to consider the notes taken by Mr Coward, solicitor acting on behalf of the Appellants. However, there was no application in this case for transcription of the Chairman's Notes of what took place. The conclusions of the Industrial Tribunal are attacked upon the basis that they are perverse in the sense in which that term is understood in the case of Piggott Bros & Co Ltd v. Jackson & Ors [1991] IRLR 309. Much of the argument addressed to us was based upon assertions of what the evidence had been before the Industrial Tribunal. We have, however, reminded ourselves in this connection of the trenchant words of Lord Donaldson, Master of the Rolls, at p.311:

"However, I fail to understand how if an appeal is based upon, or includes, an allegation that the Industrial Tribunal's decision was perverse, it is possible to contemplate allowing the appeal without having access to all the evidence bearing on the alleged perversity."

We do not have the notes of evidence. No interlocutory application was made by the Appellants for the Chairman's Notes of Evidence so far as they were material to this issue to be transcribed for the use of the EAT. The responsibility for so doing was plainly upon the Appellants. In the absence of such notes we are unable to accede to the arguments of counsel for the Appellant that the decision of this Industrial Tribunal was perverse.

The Tribunal made a finding of fact that the transaction with Mr Hebden "was not such as, inescapably, to lead to a conclusion of actual dishonesty." The point sought to be made by introducing the evidence of the further transaction between Mr Hart and McDonald was that Mr Hart had engaged in an almost identical incident which the employers alleged was dishonest. In this context, it is appropriate to bear in mind the decision of Waite J. as he then was, in Iggesund Converters Ltd v. Lewis [1984] ICR 544. This too was of course a case where there was difficulty caused as a result of what had come to be known as "split"

hearings, and where the Industrial Tribunal refused an application at the compensation hearing to call a witness to give evidence in order to demonstrate that the employee by his conduct had contributed to his dismissal. At p.555, Waite J. said:-

"...Any unfairness suffered by the employers as a result of being denied the opportunity of calling (the witness) at the second hearing is outweighed in our judgment by the greater unfairness to the employee of exposing him in effect to the same charge twice over by permitting it to have been mooted prejudicially at the first hearing and then pressed home directly at the second, with the support of evidence that could have been called at the first. ..."

"So our conclusion is that there were justifiable reasons to support the exercise by the industrial tribunal of their discretion to exclude the evidence of (the witness) at the compensation hearing, sufficient to render their decision in this regard an exercise of discretion which might have been made by any reasonable and properly directed tribunal in the same circumstances. We accordingly dismiss the appeal against refusal to admit (the witness's) evidence."

The facts of this case were slightly different: the evidence of Mr McDonald did not relate to the incident which triggered the dismissal, and the evidence was not known to the Appellants at the date of the first hearing before the Industrial Tribunal. Thus, even if the Industrial Tribunal were wrong in their conclusion that "no request for any further full hearing to assess compensation was sought", a proposition which we do not accept, then in our conclusion there were justifiable reasons to support the exercise by that Tribunal of their discretion to exclude the evidence of Mr McDonald at the compensation hearing.

It is further contended that the Industrial Tribunal failed to grant a review. However in this case the Appellants sought full written reasons plainly with a view to an appeal and did not formally apply for a review of that decision after the full reasons had been sent to the parties. We are satisfied that at that stage there was no formal request for a review.

For the above reasons we dismiss this appeal. So far as the cross-appeal is concerned, bearing in mind the specific provisions of S.68(2) and S.72(1)(a) and S.73 of the Employment Protection (Consolidation) Act 1978, it does appear to us that by an oversight the Industrial Tribunal did not make a basic award in this case, which doubtless they would have reduced pursuant to S.73(7)(b) appropriately. We therefore allow the cross-appeal and direct that this decision be remitted to the same Industrial Tribunal, if that is possible after this length of time, and if not, to such Industrial Tribunal as the Regional Chairman shall direct, in order to assess the quantum of the basic award.