United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 177_94_2302

Appeal No. EAT/177/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 February 1995

THE HONOURABLE MRS JUSTICE SMITH

MR J H GALBRAITH CB

MRS E HART

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JOHN KNIGHT ( ANIMAL BY-PRODUCTS) LTD          APPELLANTS

MR K R MARSHALL          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR M EVANS

(OF COUNSEL)

Whitfield Hallam

Goodall Solicitors

7 King Street

Mirfield

West Yorkshire

WF14 8AP

For the Respondent MR A WATERS

(OF COUNSEL)

Prestons & Kerleys Llewelyn Llewellyn Jones & Co

Cambrian House

511 Cranbrook Road

Gants Hill, Ilford

Essex IG2 6EY


 


MRS JUSTICE SMITH: This is an appeal from the decision of an Industrial Tribunal sitting at London North on 20 December 1993. The Tribunal assessed compensation to be paid by the Appellant in this appeal John Knight (Animal By-Products) Ltd, to the Respondent in this appeal Mr Marshall, in the sum of £12,230 in respect of his claim that he had been unfairly dismissed.

The history of the matter is as follows. Mr Marshall was employed by John Knight (Animal By-Products) Ltd, as a diesel mechanic from January 1988 until his dismissal in December 1992. During that time and in particular during the last few months, he received a number of oral and written warnings in respect of his absences from work and time keeping. Those warnings included a final written warning. He was dismissed, as we have indicated, in December 1992 and he applied to the Industrial Tribunal claiming that he had been unfairly dismissed. The employer entered a notice of appearance, in the usual form IT3. At question two, which asks; "Do you intend to resist the application of Mr K Marshall?" Mr Graves, the Appellants' representative and transport manager, ticked the box indicating "no". At box three, where the question is; "Was the applicant dismissed" he ticked "yes". "If yes, what was the reason?" and he wrote "See letter and work record." Enclosed with the IT3 were about twenty pages of records, including three written warnings, a report on the final episodes of alleged lateness and poor attendance immediately prior to the dismissal, a schedule of attendances spanning a period of several weeks and several sheets of photocopied attendance records. On the back of the notice of appearance where there is a large box available for the Respondent to set out the grounds upon which he intends, if he does, to resist the application, that box was left blank.

On receipt of the notice of appearance, the Industrial Tribunal Office set the matter down for hearing for compensation only. The notice of hearing which is in common form, has two manuscript amendments. At the top the words "Compensation Hearing" appear and just below the position at which the date of the hearing is given, there is written in brackets "hearing to assess compensation". Mr Marshall had in fact expressed a wish to be re-instated. It would therefore have been more proper to describe the hearing as a Remedies Hearing. However, that is not a matter which is material to this appeal.

The decision from which this appeal arises is very short. The Tribunal recounted that they had heard the evidence of Mr Marshall. They accepted that he had had difficulty in finding employment and they assessed his compensatory award on the basis of a period of twelve months unemployment following dismissal. They did not refer to any evidence on the issue of misconduct. They made no findings of fact relating to misconduct and they did not record their conclusion, if such a conclusion there was, that there should be no finding of contributory fault.

On the day of the hearing, 20 December 1993, the employer was represented by Mr Graves, the Transport Manager. What happened on that day is a matter of dispute to such an extent that we have been quite unable to resolve the conflicts of which we have heard. Mr Graves and Mr de la Porte, the Appellants' workshop Foreman, who also attended the hearing have sworn affidavits for the purpose of this appeal hearing. In essence what they say is this. They went to the hearing intending to fight the case of unfair dismissal. They did not on arrival realise that a mistake had been made in completing the notice of appearance. They had with them bundles of documents for use in the hearing. These related to Mr Marshall's poor attendance record and time keeping. From a conversation which ensued with Mr Marshall's counsel, they realised that they had made a mistake. They told a young woman, who was a member of the Tribunal staff, that they had come with the intention of fighting the case and they handed to her a bundle of documents with the request that the bundle should be passed to the Chairman. They have since been unable, despite making enquiries, to identify that young woman. She appears not to be a regular member of the Tribunal staff at London North. They say that shortly before the hearing, she returned the bundle to them saying that the Chairman had declined to receive the papers because this was a compensation hearing only.

Mr Graves and Mr de la Porte say that they then went into the Tribunal. They did not tell the Chairman that they had realised a mistake had been made and the proceedings began. Mr Marshall gave evidence. Mr Graves and Mr de la Porte say that Mr Graves was not allowed to cross examine Mr Marshall on issues relating to his conduct. They say that they were not given any opportunity to give evidence themselves and that the proceedings were over before they realised what was happening. A decision was given.

At the hearing of this appeal, counsel for Mr Marshall has tried to assist this Appeal Tribunal with his own recollection of events but unfortunately he has little useful recall. That is understandable, bearing in mind the number of cases on which he has attended since December 1993. The one useful contribution that he has been able to make was to confirm Mr Graves' evidence to a small extent. He recalls that some questions which Mr Graves sought to put to Mr Marshall were disallowed by the Chairman. Mr Marshall's own recollections have not been canvassed in detail. However we are told that it is his clear recollection that he did evidence both in chief and in cross examination on issues relating to his absences from work and poor attendance record and that he denied allegations put to him.

It is common ground that after the decision was announced, Mr Graves objected to the course that proceedings had taken and made it plain that he had intended to defend the case.

After the hearing the Appellants sought legal representation and an application was made for a review. The solicitor explained to the Industrial Tribunal that a mistake had been made in the completion of the notice of appearance and that the Appellants had been taken by surprise at the rapid conclusion of the proceedings on 20 December. It was submitted by letter that a review should be held on the ground that the interests of justice so required.

The Chairman responded on 3 February 1994 saying this:

"The notice of appearance completed by the Respondent indicated that it did not intend to resist the application. The hearing was consequently limited to the assessment of compensation a fact which was made clear to the Respondent. It was only after a decision was announced that the Respondent indicated that it had meant to contest the proceedings. To that point the Respondent had received a full and fair hearing in line with the intentions which it had clearly expressed. A review may be ordered if a decision was wrongly made as a result of an error on the part of the Tribunal staff but not on the part of the Respondent."

Although it is not a ground of appeal in this case we would wish to observe in passing that the Chairman does not there appear to have considered whether the interests of justice required a review in this case.

An appeal to the Appeal Tribunal followed and the Chairman's observations on the notice of appeal were sought. After recapitulating on matters set out in his refusal of the review, he said this:

"At no time prior to the delivery of the decision did Mr Graves indicate that he was not happy with the course the proceedings were taking. If for one moment he had behaved as claimed in paragraph 6 of the Grounds of Appeal, which he did not, the proceedings would most certainly have taken a different course. After the decision was given, and not before, Mr Graves indicated that he now wished to reopen the matter and to fight it. This indication given at so late a stage struck the Tribunal as unreasonable especially as to that stage Mr Graves had seemed happy to mount what appeared no more that a watching brief. The Tribunal did look at the documents attached to the Notice of Appearance. In the absence of any indication that the Respondent wished to resist the matter we concluded that the Respondent had taken a pessimistic view of its chances. No reduction was made for any contributory fault."

It is thus apparent that this Appeal Tribunal is presented with conflicts of evidence which are insoluble without the collection of further evidence. For example, we have before us three accounts of what took place in relation to evidence received by the Tribunal in relation to Mr Marshall's misconduct. Mr Marshall himself says that he gave evidence about the matter in chief and in cross examination. Mr Graves says that he was not allowed to cross examine Mr Marshall about those issues. The Chairman indicates that Mr Graves held no more than a watching brief, by which as we understand the expression, it is intended to imply that he did not seek to ask any questions at all.

The notice of appeal raises two main grounds. First it is suggested that the Chairman ought to have allowed the matter to be re-opened once he knew that the Appellant had made a mistake in his completion of the notice of appearance. Of course the Chairman has made it plain that he does not accept that any mistake was made. He considered that the employer wished to change his mind and defend the proceedings having previously taken the decision not to do so. As we have indicated we consider that it is not feasible for us to reach any resolution of the conflicts of evidence. However, we do consider that we can deal with this ground of appeal simply by looking at the common ground between the parties. It is plain that Mr Graves made no complaint on entering the Tribunal room and before the hearing began. By that time, on his own admission, he well knew that a mistake had been made. He had learned that from his discussions with Mr Marshall's counsel. We are not prepared to assume that the Chairman was aware prior to the end of the hearing, that Mr Graves had any objection at all to the course of proceedings. Consequently we reject the complaint that the Chairman should have allowed the matter to be re-opened to allow the issues of unfairness to be ventilated. In our judgement the employers were the authors of their own misfortune in that they lost the opportunity to contest the unfairness of the dismissal.

The Appellants' second complaint is that no evidence was received on the question of contributory fault. It is plain and has not been disputed before us, that contributory fault was an issue which this Tribunal should have considered. Evidence had been enclosed with the Appellant's notice of appearance which indicated that Mr Marshall had been the subject of warnings relating to absences and poor timekeeping. Those documents were before the Tribunal. Mr Marshall says that evidence was heard. Mr Graves disputes that. It is clear that the decision makes no reference to the question of contributory fault at all. Indeed the only reference coming from the Chairman is in the final sentence of his letter to the Appeal Tribunal where he says that no reduction for contributory fault was made.

It is well established that there is a duty upon the Chairman of an Industrial Tribunal to make plain the basis of the Tribunal's decision. In particular we would wish to make reference to the case of Meek v City of Birmingham District Council [1987] IRLR 250, where Bingham LJ, as he then was, said this:

"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draughtsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be a sufficient accounts of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any questions of law arises."

Later he cited a passage from the judgement of Eveleigh LJ in the case of Martin v Glenwed Distribution Ltd [1983] IRLR 198 where Eveleigh LJ said:

"The duty of an Industrial Tribunal is to give reasons for its decision. This involves making findings of fact and answering a question or questions of law. So far as the findings of fact are concerned, it is helpful to the parties to give some explanation of them, but it is not obligatory. So far as the questions of law are concerned, the reasons should show expressly or by implication what were the questions to which the Industrial Tribunal addressed its mind and why it reached the conclusions which it did, but the way in which it does so is entirely a matter for the Industrial Tribunal"

In this case it is not possible to tell from the decision whether the issue of contributory fault was considered. It should have been as the issue was relevant to the Tribunal's consideration under section 73(7B) and section 74(6) of the Employment Protection (Consolidation) Act 1978. There was relevant material before the Tribunal. Oral evidence may have been given on the subject. The only indication that a decision was made on that issue comes from the Chairman's recent letter to the Employment Appeal Tribunal. We assume therefore that it was considered. However, we have come to the conclusion that the decision is manifestly inadequate in that there is no reference to the evidence considered, no finding of fact and no conclusion. We regard those omissions as amounting to an error of law which must result in this appeal being allowed.

We have considered therefore what step we should take in the light of that conclusion. Mr Evans has submitted that the whole issue of remedy should be remitted to a newly constituted Tribunal. He submits that his clients have justifiably lost confidence in the conduct of the Tribunal which dealt with this matter below. Mr Waters for Mr Marshall submits that the matter should be sent back, if at all, to the same Tribunal and he invites us to direct that the Tribunal should simply be asked to provide further and extended reasons for their conclusion.

We are unable to draw any conclusions as to what happened below or whether the Appellants could have a justifiable loss of confidence. We incline to the view that they could not. Further, we consider that it would be unfair to Mr Marshall if he were to lose the benefit of the findings of fact which were made by the Tribunal below. Accordingly in the exercise of our discretion, having weighed up the arguments on both sides, we have decided to remit the case to the same Tribunal, with directions to re-open the remedies hearing and to hear such further evidence and submissions on contributory fault as they in their discretion think appropriate after hearing submissions from the parties.

We leave the matter in that way because, in the absence of the Chairman's notes which were not obtained for this hearing, we cannot see what evidence was given on the subject of contributory fault. We direct that the Chairman should have his notes of evidence from the last hearing transcribed and made available to both parties in preparation for the hearing.

Before leaving the case we wish to draw attention to Rule 9(1) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. This provides inter alia, that the Tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings.

Without having reached any conclusion as to what happened at the Tribunal hearing below, we would wish to say that as a matter of general principle, we think it important, especially when one or both parties before the Tribunal are not legally represented, that the Chairman should tell the parties before the hearing begins what the relevant issues are and explain their right to give evidence and to cross examine witnesses. In this case, that would have included telling Mr Graves that, although the issue of unfair dismissal had already been determined by his admission, it was open to him to allege that Mr Marshall had contributed to his dismissal by his own conduct. It may be that that was done in this case; we simply cannot tell. We draw attention to that provision of the Rules because it is important that unrepresented parties may appear before Industrial Tribunals without suffering any sense of disadvantage.