United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 387_95_2109

Appeal No. EAT/387/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21 September 1995

THE HONOURABLE MR JUSTICE TUCKER

MR D J JENKINS MBE

MR T C THOMAS CBE

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MR J WALVIN          APPELLANT

BOOTHAM ENGINEERS LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR B WILTSHIRE

(of Counsel)

Mr J Walvin

14 Alcuin Lodge

Bleachfields

Heslington

York YO1 5DD


 


MR JUSTICE TUCKER: This is a preliminary hearing (ex parte) of an employee's appeal from a decision of an Industrial Tribunal, held at Leeds over seven days, during a period in 1994 and 1995.

The Industrial Tribunal ultimately decided unanimously that "the applicant was unfairly dismissed but had fair procedures been followed by the respondent there is an 80% chance that he would still have been dismissed in any event".

The Industrial Tribunal gave extended reasons for their decision, which went into considerable detail. The grounds set out in the Notice of Appeal are that the Tribunal erred in law in that they applied the wrong test; that no reasonable Tribunal could have considered it just and equitable to make a reduction in compensation of 80%, (that, in our view, misunderstands the finding of the Tribunal but we will return to it); that the findings of the Tribunal by necessary implication were that the Respondent's training of the Appellant had been defective; that the main reason for the Appellant's difficulties was not his lack of capability but the deficiencies in the Respondents training procedures and working environment; that no reasonable Tribunal could have concluded that his dismissal was more the Appellant's fault than that of the Respondent, and in so far as there was contributory fault, the just and equitable proportion should have been between 25% and 33%.

The Appellant was represented at the Industrial Tribunal and has been represented before us by Mr Bernard Wiltshire, who is a barrister practising at Chambers, 26 Sandringham Road, London, E10. However he makes it clear that when he appeared for the Applicant before the Industrial Tribunal and for the Appellant (as he now is before us) he appeared not in a professional capacity but as a friend. Of course, we have listened attentively to what Mr Wiltshire has submitted to us.

So far as the first ground of appeal is concerned, he submits that the Tribunal ought to have asked itself "to what extent the conduct of the Applicant contributed towards his dismissal" but that is, in our view, a misguided approach and shows a misunderstanding of the fundamental question.

At paragraph 27 of their detailed decision, what the Tribunal addressed themselves to were two questions. They were these:

"27. We have then to consider the questions first what is the likelihood that the applicant would have been dismissed in any event had proper procedures been followed [and we emphasise the word procedures] and secondly whether it is just and equitable that any compensation awarded to the applicant be reduced by reason of his conduct prior to dismissal. ...."

Those were two separate questions which were addressed separately by the Tribunal and to which they gave separate answers. As to the first, they found that there was an 80% chance that the Appellant would have been dismissed in any event had reasonable procedures been followed and again we emphasise procedures.

As to the second, they found that there was no material conduct on the Appellant's behalf which contributed to his dismissal. But what the Appellant's representative, Mr Wiltshire is confusing, is the question of fault or contribution by reason of conduct on the one hand with the assessment of chances on the other.

What the Tribunal were doing, as they were entitled to do, was assessing the chance that this Appellant would have been dismissed in any event, even if the proper procedures had been followed. So far as that is concerned, the assessment of a chance is a matter to which the Tribunal has to give attention.

It is essentially a question of fact for them and it is entirely a matter for them to evaluate. We are not in a position to do so or to interfere with that conclusion, nor are we in the present case willing to do so on the basis that this Tribunal's decision was perverse. It was not perverse. In our view, it was a perfectly proper decision for them to reach and there is no argument available to the Appellant to the contrary.

The further submission is that it was not reasonable to arrive at such a percentage. That again is a matter for the Tribunal's evaluation. It was perfectly reasonable to reach such a conclusion. Mr Wiltshire submits that in any event, it would not have been appropriate to make such a reduction, or certainly not a reduction of those proportions. Where, as he submits, the dismissal was not unfair on procedural grounds but was unfair for substantive grounds, his submission is that the Tribunal utterly failed to address themselves to the question "whether the dismissal was on procedural grounds or on substantive grounds". With that submission we disagree.

It is perfectly plain to us, particularly from the contents of the very long paragraph 26 of the Tribunal's decision that they are looking at and have found, that the reason for the unfairness was a failure to comply with the procedures. Time and time again in that long paragraph, which is unnecessary to read, the Tribunal refer to procedures to be followed by an employer, including reasonable investigation; the best practices to be followed and so on. And when they come to their final decision, as we have set out, it was the procedures that the Tribunal were examining. This was a procedural matter. That was what gave rise to the unfairness and that is what the Tribunal were considering.

We do not find any arguable grounds for this appeal continuing. There are no proper grounds on which it could, in our view, be advanced to a full hearing and we accordingly dismiss the appeal.

There is a subsidiary matter which has been raised before us relating to the compensation hearing. As we have said, Mr Wiltshire was representing the Applicant before the Industrial Tribunal. According to the attendance records he is variously described on various days as Barrister (Friend) and on subsequent days as Counsel. In whatever capacity he appeared, he appeared as the Applicant's representative and apparently he gave his then address, presumably his then Chambers address to the Tribunal.

When the Tribunal concluded its hearing, following the Reserved Decision, it was, according to their letter agreed with the representatives, that the hearing date for the question of compensation to be assessed should be fixed for 22 May 1995. That was confirmed when the decision in respect of liability was promulgated on 27 February. A copy of that decision was sent to the address which Mr Wiltshire had left with the Tribunal: Golston Road, London E5, clearly indicating that there would be a remedy hearing on 22 May. Mr Wiltshire was the representative of the Applicant. It behoved him to ensure that, if he was to change address, he should notify the Tribunal of it. He did not do so and he went on holiday for a substantial period. That is a matter entirely for him of course. But if he holds himself out as a representative and as a barrister, it behoved him to ensure that his administrative and secretarial back-up was in place. And when this matter was pointed out to the Tribunal the Secretary of the Regional Chairman wrote to him in these terms:

"It is apparent from your response that much of what you said in your letter of 22 August 1995 was quite incorrect. It appears to me that in the circumstances you should accept personal responsibility for failing to attend the Tribunal on 22 May 1995 and that any application for a review is inappropriate. In view of the fact that you are attending at the Employment Appeal Tribunal on 22 September 1995, [that is a quotation from a mistaken reference in Mr Wiltshire's own letter] if you feel that what I have said here is unreasonable you may wish to seek the guidance of the Employment Appeal Tribunal on the matter. I have forwarded copies of our correspondence to the Employment Appeal Tribunal."

Our response to it is this. We do not think that what the Regional Chairman said was unreasonable. On the contrary, it was entirely reasonable. We decline to give further guidance. It is a matter for Mr Wiltshire and Mr Walvin to resolve between them. We cannot assist further.