United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1215_94_0706

Appeal No. EAT/1215/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 7 June 1995

Before

THE HONOURABLE MR JUSTICE TUCKER

MR D G DAVIES

MR K YOUNG CBE

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GRANTS SMOKED FOODS LTD          APPELLANTS

(1) MRS S IVISON

(2) MRS C LYON          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants NO APPEARANCE BY OR ON BEHALF OF           APPELLANTS


 


MR JUSTICE TUCKER: This is a Preliminary Hearing ex parte of an employer's appeal against the decision of an Industrial Tribunal sitting at Carlisle on 16 September 1994. The unanimous decision of the Tribunal was that both the Applicants, Mrs Sheila Ivison and Mrs Carol Lyon, were unfairly dismissed. They awarded Mrs Ivison compensation of £4,870, of which the basic award was £594, recoupment regulations did not apply. They awarded Mrs Lyon compensation of £1,473 of which the basic award is mis-typed, but should be £166, recoupment regulations did not apply.

The Respondents are Grant Smoked Foods Ltd. They admittedly employed these two Applicants and admittedly dismissed them. The dismissal was because, as the Respondents contended, they had lied to management and that they had been involved with scrap metal disappearing from the Respondents work place. The Respondents case was that they believed that the two ladies were involved in an incident with scrap metal on 7 July, and that that had followed a similar incident the year before.

The question for the determination by the Tribunal was whether the dismissal was fair or unfair. The Tribunal found it to have been unfair in these circumstances:

"We are satisfied that he did not say that: we find that he simply announced that they were both dismissed. This failure to investigate and consider what the ladies had to say makes the dismissal of both ladies unfair. If he had investigated we have no doubt he would have heard Mrs Ivison saying to him, "I wasn't there" and Mrs Lyon saying, "Well, yes I did take it. I had permission through Kevin Roberts and look at this receipt I've paid for it". That basic measure of investigation was not done. It is something that any reasonable employer acting reasonably would have done. All reasonable employers would have done that. We are satisfied that simply to tell these ladies "Sorry, you're dismissed" and already have made up their letters of dismissal to give them is an indication that these respondents did not fairly put their minds to the matter in hand. It was a knee jerk reaction. They acted unfairly and we must say so."...

In other words, the basis of the Tribunal's decision, is that there was no or no proper investigation of the complaints.

The basis of the appeal is as set out in the Skeleton Argument, forwarded to the Appeal Tribunal. In paragraph one, it is complained that:

"...no discovery was afforded to the Appellants prior to, or at the hearing."

In paragraph 2:

"The Appellants applied for an adjournment in the absence of such discovery and in particular in relation to the receipt referred to in the IT1 of Mrs Lyon, but this application was refused and the Appellants were therefore not afforded the opportunity of being fully advised as to the evidentual merits of the application."

In paragraph 4:

"Without the said prior discovery and at the specific request of the Chairman, Miss C. Lyon duly produced a receipt which was accepted by the Tribunal as having been given in the circumstances claimed by her but in the absence of the opportunity of authentication or otherwise by the Appellants."

Annexed to the appeal papers is a letter from Cain and Hall, the Applicants' solicitors, in response to a previous letter requesting an adjournment, saying: "they are not minded to agree an adjournment". Also annexed is a letter from Mark Goodwin & Co, the Respondents' solicitors, dated 14 September 1994, which had been faxed and posted to the Industrial Tribunal at Newcastle upon Tyne, only two days prior to the hearing of these applications, The Tribunal was held in fact at Carlisle. In that letter they require an adjournment, as they say they have not been afforded the usual facility of discovery or inspection. They say: "We have not had sight for instance of the receipt referred to in the I.T.1 of Carol Lyon which we would have to authenticate with the employee "Kevin" who is alleged to have provided the same" and accordingly they request an adjournment for 14 days.

It seems to us that that application was made very late in the day and although it is desirable, where appropriate, that full discovery should be made, we do note that in the IT1 to which reference has been made, Mrs Lyon sets out in considerable detail what her case is. She refers to the general maintenance man called Kevin, saying that she did not know his surname. She refers to her having given Kevin £2 for the scrap metal and to the fact that he gave her a receipt. It seems to us that the Appellants were put on good notice that that is what these ladies, or one of them, was going to say. They must have been able to identify who Kevin was. It appeared at the hearing before the Tribunal that his full name was Kevin Roberts. The employers must have known that full well. Yet they did not, apparently, have him available at the hearing. We have no information as to why that was. The appeal is not based on the fact that he had died, or was unavailable, or had gone abroad, or anything of that sort.

We note from the Tribunal's reasons that Mr Kevin Roberts was not a witness before them. It would seem to have been a fundamental precaution for the employers to have had that witness present at the Tribunal. They did not choose to do so. The nub of the Tribunal's decision was the fact that there was no proper investigation. Whether or not Kevin could have authenticated the receipt is not, as we think, germane to that issue. There was no investigation. Accordingly, although it is desirable that proper discovery should be given in appropriate cases, in this case we can not see that failure to give discovery or failure to grant an adjournment, was a material feature. We observe that at the hearing where the employers were represented by the same solicitors, there is no further reference to any requirement for an adjournment, no suggestion that when the receipt was produced any further adjournment would be necessary to deal with it and we can not see that any further adjournment was necessary, had the matter been properly and fully prepared. We are not prepared to allow this appeal to go to a full hearing and we dismiss the appeal.

We would finally observe that the Appellants sent to the Appeal Tribunal a note saying clearly that they did not intend to be present at the hearing. They have not appeared by any representative nor by any solicitor.