United Kingdom Employment Appeal Tribunal

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Cite as: [1994] UKEAT 812_92_2206

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BAILII case number: [1994] UKEAT 812_92_2206

Appeal No. EAT/812/92

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22 June 1994

Before

HIS HONOUR JUDGE D M LEVY QC

MR T C THOMAS CBE

MS D WARWICK

TROLLOPE & COLLS CONSTRUCTION LTD APPELLANTS

MR J SHARP RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellants MR S P QUANT

(ASSOCIATE DIRECTOR)

For the Respondent MR J MCMULLEN Q.C.

Pattinson & Brewer

30 Great James Street

London WC1N 3HA

JUDGE LEVY QC: The facts in this appeal are not in dispute. Mr J H R Sharp, the Respondent to this appeal, was an employee of the Appellants. He was involved in conduct which led to his arrest for suspected theft; he was released. Subsequently there was an enquiry by the Appellants, which resulted in them dismissing him. The Respondent took the matter to an Industrial Tribunal. There was a hearing before the Industrial Tribunal on the 11 June 1992. The decision of the Industrial Tribunal was that the Applicant proved that he was unfairly dismissed. The Tribunal found that the Respondent was guilty of 50% contributory fault in bringing about his dismissal. It was stated in the decision that the parties had agreed to settle terms of compensation.

At the termination of the hearing before the Industrial Tribunal the Chairman gave an ex tempore judgment, the Full Reasons for the Tribunal's decision. Those Reasons were tape recorded. Unfortunately the tape recording has gone astray. On 18 June 1992 Summary Reasons were promulgated by letter dated 24 June 1992. Mr Quant, the Personnel Manager of the Appellant, who has appeared before us to day, asked for a copy of the Full Reasons. On the 6 July 1992 the Regional Office of Industrial Tribunals replied to the letter stating that:

"The Chairman to whom the case was referred has directed the writer to apologise for the delay in responding because the tape on which the full reasons were recorded has gone missing. Full reasons will be sent as soon as possible."

Pausing there, it is quite clear, beyond peradventure, that there is no suggestion that anything other than Full Reasons were delivered at the end of the Industrial Tribunal hearing. On the 8 July Mr Quant wrote further to the Assistant Secretary of the Tribunals:

"Thank you for your letter of the 6 July 1992. It is essential to the Company that we receive the full reasons for the findings by the Tribunal, as we have in mind to require the Tribunal to review their own decision and we are considering appealing to the Employment Appeal Tribunal on a question of Law and that the Tribunal's decision was perverse.

To that end, the failure of the Regional Office of the Industrial Tribunal to supply full reasons, may well lose the Company its opportunity to appeal as the full written reasons will not be available until after the expiry of the time for appeal.

In any case as I believe that we will ask for a review of the Tribunal decision, please can this also be accepted as an acceptable application for review of the decision of the Tribunal.

I would like to have the decision of the Tribunal reviewed as the interests of Justice require such a review."

On the 13 August 1992 the Regional Office wrote to Mr Quant:

"As you are aware, when the Chairman of the Tribunal gave the Decision ....... it was given extempore and recorded on tape.

Unfortunately, due to the incompetence of one of our clerks, and contrary to standing instructions, the tape was removed from the file. It should have remained there until the time for appealing had expired. The clerk concerned cannot now find the tape, and he cannot give any rational explanation for what happened.

Normally, if a party asks for the Full Reasons for a Decision, the tape is sent for transcription by the typing pool. It would be a waste of time and money to have every tape typed out when the parties have heard the full reasons orally. The vast majority of parties are content to accept the reasons given in the Tribunal and confirmed thereafter in a Decision giving Summary Reasons.

The Chairman of the Tribunal has been asked whether he could provide substitute Full Reasons. He has asked me to say that he has looked at the file, his notes of evidence and the exhibits, but as no note was made of the reasons why the Tribunal came to be view which was given in the judgment, apart from what was recorded on the lost tape, it is virtually impossible for him to reconstruct them at this stage. All he could do would be to make a guess, and that would not help anyone. Your recollection and that of the applicant's memory of what he actually said is likely to be equally as accurate. It would not be a true record of the full reasons given.

You can probably appreciate that the Chairman has a very heavy case load, and as soon as one case is finished he has to deal with another. At this particular time he cannot retain in his memory what was the reasoning in a case heard more than two months ago."

Pausing there, it is quite clear that no note was made by the Chairman of the reasons. In such circumstances we cannot accept Mr McMullen QC's submission for the Respondent that the Employment Appeal Tribunal Practice Direction at paragraph 12 regarding obtaining of notes is material.

On the 18 August Mr Quant wrote to the Regional Office:

"Thank you for your letter of the 13 August 1992 stating that you are unable to give me full reasons .............

As it was my intention to appeal to the Employment Appeal Tribunal on a question of law concerning the decision of the Tribunal, please can you now indicate to me how I am able to do this, as I will not have the full reasons for a decision on which to base my appeal."

On the 21 August 1992 the Regional Office wrote:

"The Chairman has instructed the writer to arrange for the same Tribunal to be reconvened in chambers so that the Full Reasons can be reconstructed as far as it humanly possible. At this stage it is difficult to remember accurately what was said.

In the meanwhile it would help if you and the applicant's representative, to whom a copy of this letter is being sent, could send to the Tribunal any note/recollection of what was said, so as to assist in re-writing the Full Reasons. I should be grateful if this could be done within the next 28 days."

Then there was an apology.

We do not know whether there was any, and if so what, reply from Mr Sharp's Solicitors, but Mr Quant wrote on the 27 August, and we must remember that this is some time after the decision was made itself, in these terms:

"Thank you for your letter of 21 August concerning the case ......... As far as my recollection (my notes are available), the decision of the Tribunal was based on the following grounds.

Firstly, the tribunal indicated that the Statute was the Employment Protection (Consolidation) Act - 1978 Section 57 (1) and found that the Company employees who had dealt with Mr Sharp's dismissal genuinely believed the fact that he had stolen the chainsaw. Secondly, they stated that the reasons they had arrived at this belief had been reasonable and thirdly they believed that the thoroughness of the investigation was sufficiently reasonable for employer's to form a balanced view of the facts.

Accepting the above, the Tribunal had indicated that they believed that the management's view of the evidence was wrong and therefore stated that Mr Sharp should not have been dismissed.

They stated that however due to Mr Sharp's contributory fault, that any compensation due to him should be reduced by half and any monies already paid to him by the Company should be deducted from that amount."

On the 12 October a letter was sent to Mr Quant, with a copy to Mr Sharp's Solicitors in these terms:

"I am directed by the Chairman to say as follows:

I enclose herewith a copy of the Full Reasons and apologies for the delay. This has been caused by the difficulty in finding a suitable date for the Chairman and Members to reconvene the Tribunal to consider this matter in chambers.

The Chairman has asked me to say that he is grateful to you for your help in providing him with details of your recollection for the judgment. The matter is dealt with in the body of the Full Reasons. You will find that the Tribunal came to a different view on this point.

May I once again express my regret that it was not possible to send you the corrected text from the recorded decision."

Paragraph 3 of the Full Reasons is in this form:

"We have had to reconvene in Chambers to review all our Notes, the documents, and use our best endeavours to recollect what we said. We have borne in mind the time lapse, but we have used our experience in these sort of cases to determine the view we would have taken on the evidence which we had before us, and which is recorded in the Notes taken by each Member contemporaneously. We are unable to accept that the respondents' recollection is accurate, otherwise we would have found in their favour. They would have passed the well-known test laid down in British Home Stores v Burchell [1980] ICR 303, EAT. The evidence on which we based our decision was for the most part not contradicted."

It is with that background that the appeal takes place. The Appellant says because Full Reasons were given, and now the Employment Appeal Tribunal has only the reconstructed notes of those reasons, there cannot be a proper appeal. Once the Full Reasons are lost, they cannot properly be reconstructed. What people say, doing the best they can, many months later, is a reconstruction. It is not the same as having the decision of the Tribunal, as it was recorded and delivered.

Mr McMullen, who appears for the Respondent, says if one looks at the case which the Appellants put, what he says was said by the Chairman, simply does not make sense. If Mr Quant's recollection is right the Industrial Tribunal's conclusion would have been different; and it is common ground that the conclusion, i.e the actual result was, as is stated.

We have been referred to a number of decided cases, but the one which comes nearest to this is Arthur Guinness Son & Co (Great Britain) Ltd v Green [1989] ICR 241, but the material part of Regulation 9 which we have to consider is a part that was not considered there.

We turn to the Industrial Tribunal Rules of Procedure Regulations 1985 Schedule 1, which was then in force. Regulation 9 as material reads:

"(1)A decision of a tribunal may be taken by a majority thereof and, if the tribunal shall be constituted of two members only, the chairman shall have a second or casting vote.

(2)The decision of a tribunal, which may be given orally at the end of a hearing or reserved, shall be recorded in a document signed by the chairman.

(3)The tribunal shall give reasons, which may be in full or in summary form, for its decision.

(4)The reasons for the decision of the tribunal shall be recorded in a document signed by the chairman, which shall also contain a statement as to whether the reasons are in full or in summary form.

(5)Where:-

..........

(b)the reasons have been given in summary form and it appears at any time to the tribunal that the reasons should be given in full; or

(c)a request that the reasons be given in full is made orally at the hearing by a party or by a person entitled to appear who did so appear; or

(d)such a request is made in writing within 21 days of the date on which the document recording the reasons in summary form was sent to the parties;

the reasons shall be recorded in full in a document signed by the chairman."

We recapitulate what happened here: Full Reasons were orally delivered and recorded at the conclusion of the hearing. Reasons in summary form were sent to the parties within 21 days of those being received, the reasons in full form were requested. Those, for reasons which we have adumbrated, it was never possible to give to the Appellants, therefore they say they are denied the possibility of properly exploring any errors in the Full Reasons on appeal.

We have taken on board the submission of Mr McMullen, but this is a matter of technicality. Though the Full Reasons as delivered may well be much as they are set out in the reconstruction by the Chairman and his colleagues, at a much later date, but in our judgment justice cannot be seen to be done to the Appellants if they are not able to have the Full Reasons as they were given on which to mount his appeal.

In our judgment therefore, the point made by the Appellants is a good one. In those circumstances it seems to us, much as though we regret it, there has to be a fresh hearing of Mr Sharp's application before a fresh Tribunal. We regret this all the more so because of the time which has elapsed since the incident occurred, and because of what was actually the subject of the investigation. However, we have no doubt that this is a technical point on which the Appellants are entitled to rely, and in those circumstances the appeal must be allowed.