United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 348_95_2610

Appeal No. EAT/348/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 26 October 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

(IN CHAMBERS)

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COLCHESTER BOROUGH TRANSPORT LTD          APPELLANTS

MR S CARYER AND OTHERS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR R A SMITH

(Consultant)

IRPC Hinton Ltd

Stockwell House

New Buildings

Hinckley LE10 1HW

For the Respondents MR B BANSEL

(Solicitor)

Messrs Pattinson & Brewer

30 Great James Street

London WC1N 3HA


 


MR JUSTICE MUMMERY (PRESIDENT): This is an oral application for the production of certain notes of evidence made by the Chairman at the hearing of claims for unfair dismissal and unlawful deduction from wages by the Industrial Tribunal held at Bury St Edmunds on 31 January and 1, 2 and 3 February 1995. The claims were made by a number of employees against their former employer, Colchester Borough Transport Ltd.

The Tribunal unanimously decided, in full reasons sent to the parties on 27 February 1995, that, although the claims under the Wages Act failed, all the applicants had been unfairly dismissed. The case was adjourned for remedy.

An appeal against that decision by Colchester Borough Transport was served on 29 March. The notice of appeal contains grounds under paragraph 6, sub-divided into four sections, (a), (b), (c) and (d). Each section contains a number of sub-paragraphs ranging from eight under ground (a) to three under ground (c).

In outline, the points raised are that the Tribunal misdirected themselves in law, in paragraphs 15 to 19 of their decision, by holding the dismissals to be unfair due to failure to address the question of notice, that the Tribunal erred in law in substituting their view as to what steps should have occurred for the decision of an employer faced with the circumstances before them and the that Tribunal, therefore, acted contrary to the principles laid down in the well-known case of Iceland Frozen Foods Ltd v Jones [1982] IRLR 439, and that the Tribunal took into account evidence arising after the employees had been constructively dismissed contrary to the principle laid down by the House of Lords in Devis v Atkins [1977] IRLR 314. Finally, the decision was perverse; no reasonable Tribunal, properly directing itself in law, could have arrived at a decision of unfair dismissal.

Under the final head of "perversity" and in several places under the other heads, a criticism made of the Tribunal is that they came to conclusions for which there was no evidence. For example, at 6(b)(ii), they came to a decision which ignored evidence, given one of the witnesses for the employers, Mr Turner. It was for those reasons that an application was made initially in writing for production of the Chairman's notes of evidence.

The application was made in a letter of 16 June, asking for a note of all of the evidence given by Mr Turner on behalf of Colchester Borough Transport; in particular, his evidence dealing with the constructive dismissal of the applicants and with the question of notice. There was also a request for notes of evidence of each of the nine employees, in relation to their unwillingness to be persuaded to accept terms of employment, when interviewed by Mr Turner.

The representative of Colchester Borough Transport was informed by letter of 21 June that the request was refused on the grounds that the notes were not necessary for the purposes of the appeal. The application was renewed in a letter of 14 July. That drew attention specifically to the grounds of appeal 6(b)(iii) and (iv) where particular reference is made to the evidence of Mr Turner not being recorded in the decision of the Industrial Tribunal. That letter also sought an amendment to the notice of appeal by adding paragraph 6(e) to the present notice.

Following the receipt of that letter it was directed that the application for Chairman's notes should be the subject of a hearing for directions. That has taken place this afternoon. Mr Smith represents Colchester Borough Transport and Mr Bansel, the Respondent employees.

I will deal first with the question of leave to amend. No notice has been received by Mr Bansel of the application for leave to amend, either from the Appellants' representative or from the Tribunal. He has not, therefore, had a chance to consider the amendment. When he has had the chance, he will be able to indicate to the Appellants' representative whether or not he objects to the application for leave. If he does not, then the leave will be granted by the Tribunal without the need for a hearing. If he does object, then Mr Bansel should state his grounds of objection in a letter to the Tribunal, with a copy to the Appellants' representative and the application for leave to amend can then be dealt with on paper by the Tribunal. There will not be any need for a further oral hearing.

On the question of production of Chairman's notes, Mr Smith has reiterated that he is not asking for all the notes. That would be an excessive and unnecessary request, since the evidence took place over four days and concerned other matters not in dispute and not relevant to the grounds of appeal. He confines his request to the notes of Mr Turner's evidence. He informed me that his evidence was given within one day, on Tuesday, 31 January. A few lines of evidence was given by each of the employees about the willingness of them to be persuaded to accept different terms of employment. That interview was with Mr Turner.

Mr Smith, for the Appellants, relies strongly on the need for the Chairman's notes on the perversity ground of appeal. He accepts that notes will only be required where necessary for the purposes of an appeal but says, relying on Webb v Anglian Water Authority [1981] IRLR 494 that, if it is contended that findings of fact are incomplete or unsupported by evidence or based on a misunderstanding of the evidence, the Appellant is unable to establish his point on the appeal without the notes of evidence. He took me through the details of some of the points on which he says that Mr Turner's evidence was either not correctly appreciated, possibly taken out of context, or where it was ignored. He gives specific examples in his skeleton argument of the particular criticisms he has of the Tribunal's treatment of the evidence in the findings of fact. He emphasizes that the evidence of the Applicants is only required on the narrow point of willingness or unwillingness to accept the new offer.

I am not persuaded that this is a proper case for ordering the notes of evidence now. It is clear from the notice of appeal, which has not been set down for a preliminary hearing, that there are arguable points of law on the appeal, which can be fully and fairly argued without reference to anything other than the decision itself, contained in the full reasons.

If those grounds are made out on the appeal, then it would not be necessary to refer to any notes at all. The imposition on the Chairman of requiring him to produce notes and the imposition on the Respondents in this Tribunal in having to read and consider them, would have been unjustified. This is not a case where perversity is the only ground. I am not even satisfied that it, if it is a ground of perversity, it is necessary to have any of these notes. Perversity is often most vividly demonstrated by contrasting the findings of fact with the conclusions reached on liability and asking how could a Tribunal, having found those facts, possibly come to that conclusion.

In the experience of this Tribunal, many cases of applications for Chairman's notes are misconceived, because they are not necessary in order to determine a point of law, even perversity. It is the frequent experience of this Tribunal that notes are requested and, if the Tribunal is persuaded to order them, it is subsequently found at the hearing that they were not necessary at all. Irrecoverable and unnecessary expense has been incurred in complying with a request that should never have been made or granted. We therefore scrutinise most carefully every request for the Chairman's notes.

In my judgment, the fairest way to deal with this application is to refuse it, but to give leave to the Appellants to raise it again at the hearing of the Tribunal. If the Tribunal finds, having heard all the arguments, that it is unable to dispose of the appeal without deciding the perversity question and it is persuaded that it can only decide the perversity question by having the notes, it can order production of the notes.

I appreciate that, if that happens, it would be necessary to grant an adjournment to obtain the notes. But the inconvenience and expense of doing that are, in my view, preferable to the inconvenience and expense involved in ordering now notes which may never be needed to decide this appeal.

For those reasons, the application for notes is refused. The application for leave to amend will be dealt with in correspondence in the manner suggested.