United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 84_94_0612

Appeal No. EAT/84/94

EAT/85/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6 December 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

(IN CHAMBERS)

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MINEHEAD ROYAL BRITISH LEGION CLUB LTD          APPELLANTS

MRS B GUNTER          RESPONDENT

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Transcript of Proceedings

JUDGMENT

AMENDED JUDGMENT

Revised


 


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APPEARANCES

For the Appellants Mr A. Sutcliffe

(Advocacy Manager)

Peninsula Business Services

Advocacy & Litigation Department

Stamford House

361/365 Chapel Street

MANCHESTER M3 5JY


 


MR JUSTICE MUMMERY (PRESIDENT): There have been heard in Chambers this morning, two cases, each involving two Appeals. In each case there is an Application for Notes of Evidence made by the Chairman. In each case the Appellants are represented by Mr Sutcliffe, Advocacy Manager of Peninsula Business Services. His submission on each Application is that the Chairman's Note of Evidence are necessary in order to dispose of the Appeals brought by his clients.

I propose to deal with each of the Applications in a similar fashion. In coming to that decision, I should explain some of the background. First, the law to which Mr Sutcliffe has referred. There have been a number of cases where this Tribunal has laid down the general principles which govern the rare occasions on which it is appropriate to order production of the Chairman's notes.

First, Burnett v Value Travel Agency Ltd [1989] ICR 79 which established that:

"An Appellant,........has no absolute right to have the notes of evidence......they may be voluminous and the production may impose a real [and costly] burden on the chairman. [Secondly, if notes are to be applied for they should be applied for promptly, and thirdly, any application for notes should be accompanied by a statement of the reasons why it is submitted that it is necessary for the disposal of the Appeal.]

The second case, Webb v Anglian Water Authority [1981] ICR 811, decided that an application for notes would only be granted where it was shown that the notes were relevant for the purposes of an appeal. They might be relevant if the case on the appeal was that there was no evidence to support a specific finding of fact by the Tribunal. They might be relevant to show that the Tribunal had misunderstood the evidence or that their finding of fact was perverse. That is a finding no reasonable Tribunal could have made on the evidence before it. For example, where the evidence was not contradicted and yet the Tribunal came to an inconsistent finding of fact.

It was emphasised in that case by Mr Justice Browne Wilkinson that it was a misuse of an Appeal to make common form or general allegations about the facts found by the Tribunal in order to obtain the Chairman's notes, so that the parties could then go through them with a tooth comb, with a view to finding inconsistencies between the notes made by the Chairman and the Decision of the Tribunal on the facts. He laid down as a general principle that Chairman's notes should not be provided, unless the Notice of Appeal raised permissible ground for attacking the findings of fact. If a permissible ground was raised, it was not sufficient to make a generalised allegation. Before any order would be made the parties seeking the notes should specify the exact findings which are attacked or the finding which it said ought to be made. There is no hardship in insisting on that because the parties have been present at the hearing and know what evidence was given. Before raising allegations about the findings of fact, they ought to know which findings they are challenging.

With those general principles in mind, the Tribunal has established a practice of scrutinizing carefully all applications for production of notes.

In the case of Hampson v Dept. of Education 1988 ICR 278 where at pages 295 and 296, Mr Justice Popperwell pointed to the importance of having Chairman's notes whenever it is suggested on an appeal that the Decision is wrong. In law, in order to show the Appeal Tribunal the material on which the Decision was based, he explained how, in the absence of Chairman's notes, it was not possible for the Appeal Tribunal to conclude that the Industrial Tribunal had misunderstood or misconstrued the evidence.

It is important to note that Mr Justice Popperwell went on to say that the form in which a Tribunal gives its Decision is essentially a matter for the Tribunal. What is important is that a party knows in broad terms why it has won or lost. It is important to read the Decision as a whole, bearing in mind that there is no obligation on the Tribunal to set out in detail the evidence upon which the findings of fact are made.

As was said by Sir John Donaldson in Martin v Glynwed Distribution Ltd [1983]ICR 511 and 520:

"Whether or not the industrial tribunal explains its conclusions of fact fully, those conclusions are not open to review by the appeal tribunal or by this court [and he was referring there, to the court of appeal] if they are conclusions which a reasonable tribunal might have reached on the evidence."

With those general principals in mind, I have considered to the applications made by Mr Sutcliffe in these cases.

Turning first to the Minehead Royal British Legion Club Ltd v Mrs B Gunter, there are two appeals. The first appeal is against the Decision of the Industrial Tribunal on a case of Unfair Dismissal, brought by Mrs Gunter against the Minehead Royal British Legion Club Ltd. The hearing took place on the 26th July 1993. Both parties were represented.

Mrs Gunter by a Union representative, and the Minehead Royal British Legion Club by Mrs Wood, an Employment Law Consultant.

The Tribunal reached the unanimous conclusion that Mrs Gunter was unfairly dismissed. The hearing on remedies was adjourned to a later date. In the concluding paragraph of their Full Reasons, notified to the parties on the 12th August 1993, the Tribunal said this:

"The Tribunal finds that the applicant did not cause or contribute to her own dismissal, and that if the respondents had followed a fair procedure they would probably not have dismissed the applicant. There are no grounds therefore for reducing the compensation to which the applicant is entitled."

They referred, in the final paragraph, to a hearing on remedies at a later date. The Notice of Appeal against that Decision was received in this Tribunal on the 21st September 1993.

A further hearing took place at Exeter on the 25th October 1993 dealing with remedies. The reasons for that Decision were notified to the parties on the 30th November 1993. At the hearing on remedies, which was also accompanied by a review, applied for by the Minehead Royal British Legion Club on the 26th August, the parties were represented. Mrs Gunter again by a union representative, and Minehead Royal British Legion Club Ltd. by Mr Sutcliffe of Peninsula Business Services Limited.

The Tribunal heard evidence and argument and came to the conclusion on the review, that the Decision should be varied by deleting the word `probably' [in the third line of paragraph 9 of the Full Reasons]. On remedies, the Tribunal reached the conclusion that Mrs Gunter should receive a basic award of £1,502.48 and a compensatory award of £5,866.50. to which the Recoupment Regulations would apply.

The Minehead Royal British Legion Club appealed against that Decision by a Notice of Appeal received in this Tribunal on the 29th December 1993. It had been sent with a covering letter on the 23rd December. In the covering letter, Mr Sutcliffe, on behalf of the Appellants made a request for notes, in relation to the hearing on the merits on the 26th July and the review of compensation hearing on the 25th October 1993.

He complained, in particular, that the Industrial Tribunal had made a pre-emptive application of what is described as the `any difference' (or the Polkey test). He also criticised the calculation of the compensation, especially in the failure of the Tribunal to make an appropriate finding in relation to the clear failure on the part of Mrs Gunter to mitigate her circumstances.

The Application for chairman's notes was heard argued today. During the course of Mr Sutcliffe's submissions, I have been assisted by a notebook produced by him of notes made at the compensation hearing, in particular, passages in the notes relating to evidence given by Mrs Gunter in cross-examination relating to the question of mitigation.

Having heard the arguments, and having considered the Decisions of the Tribunal, and in particular the decision on compensation in the light of the notes of evidence, I have formed a view that it is not necessary to order the production of the chairman's notes relating to compensation, in order to decide the appeal.

As to the notes of the hearing on the merits, slightly different considerations may apply. The Chairman of the Tribunal was asked by this Tribunal to comment on the notice of appeal, (paragraph 3(b)), in which it is alleged that the Tribunal had misunderstood and misapplied the law in relation to Section 74(1) regarding compensation and had prevented the Appellants from raising any evidence or submissions on the `any difference' test, alleging that such evidence and submissions were not given at the merits hearing on the 26th July.

In his comments in the letter dated 30th March 1994, the Chairman stated in paragraph 2 that:

"2. I believe it was established and understood by the representatives for both parties at that first hearing that all issues which might have a bearing on reduction of compensation would be dealt with in evidence and submissions.

4. On the basis of the evidence and submissions at the dismissal hearing, the tribunal made findings of fact as to the disciplinary and procedural steps which the respondent had taken, or had failed to take, prior to the dismissal.

Based on those findings of fact it concluded that the applicant would not have been fairly dismissed if the respondent had followed proper and fair procedures and that there were no grounds for reducing any compensatory aware on the "Polkey no difference" principle."

Mr Sutcliffe's submission is that he has only seen that letter with those comments since being provided by this Tribunal with an appeal bundle for today's hearing. He says that, having spoken to Mrs Wood, she does not agree with what the chairman says in relation to the conduct of the unfair dismissal hearing on the 26th July.

If the Appellants wish to pursue that point further, it will be necessary for an Affidavit to be sworn by or on behalf of the Appellants stating the disagreement with the chairman's statements in paragraph 2 and 4 of the letter of the 30th March, setting out what they say is the correct position about the basis on which the hearing was conducted on the 26th July. I am not able to deal with matters put forward in contradiction of a chairman's assertions without an Affidavit. The Affidavit, if provided, would then be put before the chairman for his comments.

I express no view at this stage about the criticism of the chairman's letter. I propose to refuse to order chairman's notes of evidence today, either of the dismissal hearing or part of that hearing relating to the basis on which the hearing was conducted. I also refuse the application for the notes of evidence of the compensation hearing, because I am not satisfied that it is necessary to have them to dispose of the appeal.

I do not want, however, to hamper the full Tribunal in a proper adjudication of these appeals. I propose to adjourn the applications for notes of evidence to the full hearing. I direct that the two appeals should be heard together, since they are closely related. The full Tribunal will be free to consider whether it needs the chairman's notes of evidence on either of the hearings, in order to dispose of the appeals. In view of the extent to which I have become familiar with the files in these cases, I indicate that time might be saved if the appeals are heard by a Tribunal over which I preside.