United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1016_93_1403

Appeal No. EAT/1016/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14th March 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR D G DAVIES

MR K M YOUNG

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COBRAWATCH LTD          APPELLANTS

MR S G FINN          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR M F YOUNG

(of Counsel)

Messrs Barnett Alexander Chart

34-35 Dean Street

London W1V 5HP

For the Respondent MR MICHAEL LAMBE

(Representative)

Free Representation Unit

49-51 Bedford Row

London WC1R 4LR


 


MR JUSTICE MUMMERY (PRESIDENT): This is an Appeal from the Decision of the Industrial Tribunal held at London, North on 20th August 1993. The Tribunal heard a claim for unfair dismissal brought by Mr Finn against his employers Cobrawatch Ltd. He claimed in his originating application presented on the 17th December 1992 that he had been employed as a security guard from 8th September 1990 until 25th September 1992, and that he had then been unfairly dismissed. He said he was dismissed without warning, written or oral, without reasons and without any disciplinary procedure being followed.

The case was contested by Cobrawatch, who gave as the reason for dismissal, (they ticked the box agreeing that he was dismissed), saying:

"Unexplained absence from duty. Failure to contact office. Frequently late reporting for duty."

It was made clear in the IT3 dated 6th January 1993 that it was alleged that:

"Mr Finn was in breach of his Terms and Conditions of Employment in that he failed on two previous occasions to inform Head Office of his inability to attend work. ... He was therefore dismissed in his absence."

That was the case that came before the Industrial Tribunal.

The Industrial Tribunal decided unaminously that Mr Finn was unfairly dismissed and was entitled to an award of compensation, which they made, but reduced by 50% on the grounds of contributory fault.

The Tribunal gave summary reasons for the decision on 24th September 1993.

The Summary Reasons were just what they stated, brief, informative enoughto know what the result was, but not informative enough to know what all the reasons were for the result.

The Tribunal found that Mr Finn was dismissed. That the effective date of dismissal was 12th November 1992. Paragraphs 3 and 4 contain the Decision on Liability which I will read in full. Paragraphs 5 and 6, which we need not go into, deal with the assessment of compensation.

Paragraphs 3 and 4 read:

"3. The Tribunal had difficulty in resolving issues of fact in this case. We were not satisfied of the accuracy of the evidence presented by either party. Recognising, however, that it was the Respondent's duty to satisfy us of the reason for dismissal, whether or not we found that the Respondent had proved the stated reason for dismissal (which was misconduct in failing to offer an explanation for unexplained absence from work) we concluded that the Respondent had in any event failed to act reasonably in effecting the dismissal, whatever was the genuine reason for it. The Applicant's dismissal was therefore unfair."

"4. Recognising again our difficulty in making findings of fact in this case, we considered that there was a basis for a finding that the Applicant had, by his conduct before dismissal, contributed to that dismissal; on the balance of probabilities we found that the Applicant had failed to make full and proper contact with his employers before his precipitate dismissal and on that account we decided that his basic and compensatory awards should be reduced by 50%."

Although those are not full reasons, they clearly state three things:

1. That Mr Finn was dismissed.
2. That his dismissal was unfair, in that the Employer did not act reasonably in effecting it. It was precipitate.
3. That he was liable for contributory fault to extent of 50%.

What then happened was a series of unfortunate mishaps which have dogged this case.

Cobrawatch sought to appeal by a Notice of Appeal dated 10th November 1993. The ground of appeal was simply stated to be this:

"The employee's attitude toward his work was negligent and unreasonable:- Inexplicable illness absences unsupported by medical or documentary explanation."

That would hardly disclose a point of law on the Appeal. That is the only ground on which this Tribunal can disturb the decision of an Industrial Tribunal.

That was not the only difficulty of the Appellants were in. Under the Employment Appeal Tribunal Rules, Rule 3, an Appeal is:

"... instituted by serving on the Tribunal the following documents:-

(a) a notice of appeal ....

(b) a copy of the decision ... of an industrial tribunal [consisting] ...

(c) a copy of the extended written reasons ..."

When the Notice of Appeal was first submitted, it was sent to the Industrial Tribunal office in Woburn Square on 3rd November 1993. It was stated :

"Employment Appeals Tribunal

Regional Office of the Industrial Tribunal

London (North)

19-29 Woburn Place"

[saying]

"You will find enclosed our written appeal regarding the decision of the Industrial Tribunal on the 20th August 1993, for your perusal."

That found its way to the Employment Appeal Tribunal at Audit House. A letter was sent on 12th November 1993 pointing out that the Notice of Appeal was only supported by summary reasons, and drawing the attention of Cobrawatch to the decision in William Hill Organisation - v - A Gavas EAT/645/88 in which the Employment Tribunal stated that, without the full written reasons, an appeal cannot properly continue. That letter was not fully understood by the operations manager at Cobrawatch, or it appears, by the consultant in legal department who dealt with it. It elicited a reply of 23rd November which said:

"... Thank you for your letter of 12 November 1993."

"We would like to submit the full written reasons in accordance with the requirements of Rule 3 (1) of the principal Rules (EAT Rules 1980) ..."

What then follows are not the full or extended reasons for the Industrial Tribunal decision, but the reasons advanced by Cobrawatch for challenging the correctness of the decision of unfair dismissal.

The matter was set down before this Tribunal for a Preliminary Hearing. In the meantime there were attempts by Cobrawatch, after conversations with officials of the Employment Appeal Tribunal, to obtain extended reasons from the Industrial Tribunal. When the matter first came before the Employment Appeal Tribunal on a Preliminary Hearing there were still no extended reasons. The position was that, in the absence of Full Reasons, the hearing could not continue, unless the Employment Appeal Tribunal considered it a case where they could waive the requirement for Full Reasons. Waiver is granted only in exceptional cases, where it is possible, in the view of the Tribunal, to do justice to the Appeal on summary reasons only. In practice those waivers are only made where the summary reasons are full enough to enable the parties to identify the points of law to be are argued on the appeal.

When the matter first became before us on 19th May 1994 a highly unsatisfactory position was revealed, in which the requests of Cobrawatch for extended reasons had not been complied with. We established that there was some confusion about the papers in the case and whether letters requesting extended reasons had been received. On 19th May we adjourned the preliminary hearing of the appeal until 8th June. We ordered that the Industrial Tribunal chairman be asked to provide full written reasons in time for the adjourned hearing.

The adjourned hearing took place on 22nd July. By that time it had been established that extended reasons for the decision had not been provided and, in fact, could not now be provided. The matter was so distant from the date of the original hearing in August 1993.

The Tribunal made an order that the appeal proceed to a full hearing. That was made because only the representative of the appellant was present. That is the normal practice with preliminary hearings. It was not possible to make a final decision about how the appeal should be disposed of, until a hearing took place at which both the appellants and the respondent were represented.

The position was clarified to Cobrawatch by a letter of 28th September when the Registrar wrote to the legal adviser saying:

"We write to advise that we are unable to obtain the full written reasons from the Industrial Tribunal and that the appeal will be heard on the basis of the summary reasons."

At the hearing today, Mr Young has represented Cobrawatch. Mr Lambe, who has no express instructions from Mr Finn, has attended to assist the Tribunal.

Our first reaction in considering the papers and the skeleton arguments submitted by both Mr Young and Mr Lambe was that the preferable course to take, in the interests of justice, was to make no order on this appeal, but remit it to a new Industrial Tribunal for re-hearing.

Our thinking behind that was this. In the experience of the Tribunal, when people have been unrepresented before the Industrial Tribunal Cobrawatch was not professionally represented a failure to ask for Full Reasons at the oral hearing or within 21 days of receiving the decision, does not normally shut out a party from pursuing an appeal. It is quite common for an extension of time to be granted for the giving of full reasons so that the persons who has been unrepresented has not been disadvantaged by ignorance of the correct procedures for obtaining full reasons.

In this case however, it is now clear to the Tribunal that written extended reasons will never be obtained. We thought at first that the matter could be justly dealt with by a remission. After further consideration of the matter, we have decided that course is not open to us. This Tribunal only has jurisdiction to set aside a decision of an Industrial Tribunal on appeal, if there is an error of law. Under section 136 of the 1978 Act the jurisdiction of the Tribunal is confined to errors of law. The power in the Appeal Tribunal in paragraph 21(1) Schedule 11:

"21 (1) For the purpose of disposing of an appeal the Appeal Tribunal may exercise any powers of the body or officer from whom the appeal was brought or may remit the case to that body or officer."

is for the purposes of disposing of an Appeal. The Tribunal can only dispose of an appeal by allowing it or dismissing it according to whether there is or is not an error of law.

We have reached the conclusion that we have no independent power simply to set aside a decision of an Industrial Tribunal and order a re-hearing, unless we are satisfied that there is an error of law. The choice facing us is whether we should allow the appeal or dismiss it.

There are obvious difficulties in allowing an appeal, on summary reasons only. The case simply is not sufficiently explained to be able to detect errors in it, unless it is one of those rare cases when one can tell from the brief statement of reasons that the decision is one which no reasonable tribunal could have arrived at on the material before it.

Mr Young has made a brave attempt to argue this case, on a question of law, on the basis of the summary reasons. He made three points (it is no disrespect to him that we deal with them briefly).

He prefaced his arguments by seeking leave to amend his Notice of Appeal. We deferred the decision on the amendment until we had heard all the arguments. As we have reached a conclusion on the arguments that there is no error of law detectable in this decision, there is no point is us granting leave to amend. It would be a futile amendment.

The three arguments which Mr Young put forward on the basis of his existing grounds and his amended grounds, where these; firstly, he wished to argue that it was not a case of dismissal at all. He submitted by reference to the terms of Mr Finn's contract and to the letter in the respondents bundle, page 3, a letter of 5th October 1992, that this was a case where Mr Finn had not been dismissed. He had dismissed himself. He submitted that the letter of 5th October and the evidence of a non-response by him to it amounted a deemed resignation by which Mr Finn indicated he would not continue the employment relationship.

Given the terms of that letter Cobrawatch had no option but to accept the fundamental breach by Mr Finn as termination of the contract by him. Accordingly, in law, there was no dismissal within the meaning of the 1978 Act or, alternatively, if there was a dismissal by Cobrawatch the breach of contract by Mr Finn was a cogent reason for finding a high level of contributory fault on his part, if not 100%.

The difficulty with that argument is that the Tribunal have, as already indicated, clearly stated in paragraphs 3 and 4 of the summary reasons, that it was a case of dismissal. That is not obviously wrong, especially in view of the fact that in the Notice of Appearance; even taking account of the fact that it was completed by a non-lawyer, it is clearly admitted that it was a dismissal for a stated reason. In our view, there was no detectable error of law in the Tribunal coming to the conclusion that Mr Finn was dismissed.

The difficulty with the second ground, which relates to procedure, is that, although Mr Young advances a sound proposition of law, there are insufficient facts stated in the decision on which he can base the argument. He says that it was the focus of the Industrial Tribunal decision that Mr Finn was unfairly dismissed and that the word "precipitated", in paragraph 4 of the decision indicates that the Tribunal was of the view that Cobrawatch should have made further enquiry of Mr Finn before giving effect to termination of the employment.

Reference was then made to Duffy - v - Yeomans and Partners and to Polkey - v - A E Dayton Services for the proposition that a reasonable employer of security guards could reasonably have concluded, in the exceptional circumstances which arose due to Mr Finn's conduct, that the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with. The Tribunal should have so found.

It is difficult to find fault in the Tribunal's decision on this point when there are no facts stated in it on which such a conclusion could be reached. It is impossible, in our view, for Mr Young to say that there has been perversity in this part of the decision or any misdirection as to the law.

The third, and final, ground of appeal, is the contributory fault argument. He says that there was a clear finding of fact that Mr Finn had not made contact with Cobrawatch before the dismissal. That was clearly a cause of major detriment to Cobrawatch's business. In those circumstances the assessment of contributory fault at 50% was erroneous. He pointed us to the decision of the Court of Session in Nairne - v - Highlands and Islands Fire Brigade 1989 IRLR 366 for the proposition that, on an appeal, the Employment Appeal Tribunal may, in a appropriate case, substitute its own finding of the level of contributory fault for that of the Industrial Tribunal.

Again, Mr Young's difficulty is the absence of findings of fact in the decision. We are unable to detect an error of law in the decision, on the level of contributory fault simply from the statement that Mr Finn had failed to make full and proper contact with his employers before his precipitate dismissal.

We accept the submission of Mr Lambe that questions of contributory fault are, in the absence of perversity, questions of fact and degree, impression and judgement, not questions of law. The apportionment of blame was a matter for the Industrial Tribunal. It would require strong grounds for us to disagree with their decision. It would certainly be impossible, in most cases, to disagree with the Decision where there are insufficient facts stated in the summary reasons on which to reach a contrary conclusion.

We also agree with Mr Lambe's submissions on the questions of dismissal and on the questions of procedure.

In those circumstances Mr Young has failed to identify an error of law in the summary reasons. He faced a Herculean task, which he has performed with skill, but without success.

In those circumstances we have no option but to dismiss the appeal.

We have gone into the matter at some length, because it might be felt by Cobrawatch that they have a sense of grievance in that the principal reason that stands in the way of arguing this appeal effectively is the absence of full reasons. We can understand how Mr Igor, who did the case on behalf Cobrawatch, may have failed to appreciate the need to ask for full reasons at the hearing or within 21 days of being notified of the decision.

There are also the unfortunate subsequent events where, through no fault of Cobrawatch, there were delays on the part of the Industrial Tribunal in dealing with the matter and it became impossible to provide extended reasons.

We have to face matters, as they are presented to us, on the basis of summary reasons. We are unable to do anything other than dismiss the appeal.