United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 982_94_2704

Appeal No.EAT/982/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 27 April 1995

THE HONOURABLE MR JUSTICE MORISON

MR T S BATHO

MRS P TURNER OBE

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MACMILLAN DISTRIBUTION LTD          APPELLANTS

MR R MAURE          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR PHILIP REED

(Of Counsel)

Taylor Joynson Garrett

Carmelite

50 Victoria Embankment

London EC4

For the Respondent MR JASON

GALBRAITH-MARTEN

(Of Counsel)

Nelson Johnson and Hastings

Pennine House

8 Stanford Street

Nottingham

NG1 7BQ


 


MR JUSTICE MORISON: After 20 years service, Mr Maure was dismissed by his employers, ostensibly on the grounds of redundancy. He made a complaint of unfair dismissal, alleging that there was no redundancy situation, but that if there was, he was unfairly selected, and selected because of his union membership and union activities. Because it was thought, wrongly, that a member of the Tribunal belonged to the same union as the employee, arrangements were properly made by the Regional Chairman, to ensure that there was a panel selected, about whose composition there could be no question. After a 5-day hearing in Southampton, between March 29 and to 29 June, the members of the Tribunal met to discuss their decision on 12 July 1994. Subsequently, in a written decision sent to the parties on 5 September, the Tribunal decided by a majority, the Chairman dissenting, that the employee was unfairly dismissed. The reasoning of the Industrial Tribunal as disclosed in the written decision, may be summarised in this way:

1. All members of the Tribunal were satisfied that there was a redundancy situation and that the principal reason for the dismissal was redundancy.
2. The majority were of the view that the supervisors were so coloured by their adverse reaction to the employee's trade union activities as to account for the low scores which they awarded the employee on a subjective basis, and that the final assessment for selection made thereafter, was simply a rubber stamping exercise and remained tainted by the anti-union bias reflected in the low scores of the supervisors. Therefore, the majority view was that the reason for the employee's selection was his union activities. Therefore, the dismissal was automatically unfair.

The Chairman thought that the low scores were not motivated by anti-union bias, and in any event were largely disregarded when the formal assessment was made.

3. The Tribunal were all satisfied that up to 29 June, the employers had acted fairly and properly, as far as consultation was concerned. However, over the question of the basis of selection, the majority were satisfied that the employers should have done more, even though the union were taking a hard line and insisting on Chapel seniority, as a basis for selection. The majority thought that the employers should have tried to negotiate the question and if they failed, they should have announced their method of selection and invited the union's comments upon it. They also considered it unfair that the employers did not disclose to the employee the method of selection at the time, nor did they show him the assessment forms.

The Chairman, while somewhat critical of what was done, did not consider that the employers had acted unfairly in this regard.

4. The majority criticised the method of selection, in that it did not, in their view, give enough weight to length of service and were concerned that to take account of absence or lateness as individual items, gave undue prominence to them in the selection process. The Chairman disagreed.

Where a Tribunal is divided in its views, as here, with the Chairman in the minority, he has a heavy burden. He is the person who undertakes the considerable responsibility for writing the Decision, as in every other case. For reasons which will become apparent, this process involved a certain amount of to-ing and fro-ing between Chairman and the Members, and a certain amount of debate and argument. Of course, although lay Members will have been able to make their own input to a Decision, it is likely that the Chairman will have tried to formulate, as best he can, what he believes to be the views of the majority. This is not an easy task, when he is seeking to formulate, in a convincing and cogent way, a point of view or conclusion, with which he does not agree. We should say at once, that there can be no suggestion here that the Chairman has done other than endeavour to carry out his duties, in a careful and conscientious way.

The Decision was on liability only. The question of compensation was left for another day, in the absence of agreement between the parties. In the light of what had happened, the Regional Chairman decided that it would be sensible for the outstanding questions to be considered by a differently constituted Tribunal. In due course this was arranged.

On October 12 1994, the employers lodged a Notice of Appeal. The employers contentions may be summarised in this way:

5. The majority failed to direct themselves as to the need to be satisfied that the union activities must be the principal reason for the selection and not just a motivating factor.
6. The majority substituted their own judgment for that of a reasonable employer, when considering the question of unfairness in procedure.

One of the lay Members of the Tribunal, who had not been informed about the arrangement for the compensation hearing, spoke with a trade union official, who had given evidence at the hearing and he enquired about this case. In all innocence, apparently, believing that the matter had been concluded, she spoke to him informally. During the course of that discussion, some of the difficulties in reaching a conclusion were referred to. She made it known that she, personally, had not seen the final draft of the Decision before it was sent to the parties. Not unnaturally this caused concern to the employee's side. They could see that there might be cogent grounds in favour the Employment Appeal Tribunal allowing the employer's appeal on the Decision as expressed. On the other hand, they had information which suggested that the Decision itself in final form, was never approved by at least one of the lay Members. How could it be fair for the E.A.T. to consider an appeal, against a written decision, which may not truly have reflected the majority view.

It seems to us, that the course we must take is clear. Justice must not only be done but be seen to be done. If we allowed the appeal, the employee would have a justifiable sense of grievance. We cannot properly embark upon an appeal where our decision may have that effect. What has happened is most regrettable. Had we thought that there had been anything deserving of express criticism, we would have said so. There is no evidence before us to lead us to that conclusion on the material we have available. It is obviously good practice, that in circumstances such as these, Members should receive the final version of a Decision, before it is sent out, and be given an opportunity to comment upon it and approve it, particularly where, as here, it emerges from a letter written by the lay Member concerned, that the lay Members had rejected two previous drafts of the Decision.

It is also obvious, that all Members of Tribunals should be reminded of the importance of refraining from talking about a case in which they have been involved, with anyone else, at any stage, before or after a Decision has been made. Accordingly, we are in this position: we are faced with information, which leads us to believe that we cannot properly and fairly hear and determine this appeal. The employee's side discovered what had apparently happened as a result of the witness disclosing to them the conversation which he had had with the lay Member concerned. They were aware of their side of it, so to speak, in December of last year. Somewhat later, they communicated with the E.A.T. and the matter was then investigated by the Regional Chairman. It is fair to say that it was only when the case was called upon for hearing this morning that the parties had available to them the letter which had been written to the Regional Chairman by the lay Member concerned, dated 15 April 1995, the contents of which were disclosed by me openly to the parties in this case.

The conclusion we have arrived at is that we have no alternative but to allow the appeal and remit the matter for hearing before a new Tribunal. It goes without saying that the new Tribunal should hear and determine the matter as a matter of urgency and the Regional Chairman should be informed of our desire that this should take place. The dismissal took place in 1993. We have been told that the employee has been out of work since then. It is plainly desirable and in the interests of justice, that his complaint should be fairly and properly adjudicated upon as soon as possible. It is said on behalf of the employers, who are the Appellants in this case, that they should have their costs, because it was only lately that the employee raised the question that we have referred to in this Decision. They say that they should have their costs against the Respondent, it is his fault for raising it late.

We do have power to award costs in circumstances where we are satisfied that there has been unreasonable conduct on the part of a party but we are not persuaded that this is such a case. It is regrettable that the matter was dealt with so late, but we can understand why, in the extraordinary circumstances of the case, this should have occurred. We therefore do not make any order for costs. In relation to the employee, it is said by Counsel on his behalf, for reasons which we find difficult to understand, that he would wish to have leave to appeal against our decision. I think in the end, despite the fact that he was drawing our attention to the circumstances to which we averted in this judgment, he was contending that the judgment of the Industrial Tribunal should somehow incorporate the 13-page report referred to in the letter from the lay Member, or that the Decision should, in some way, be subject to some further scrutiny by the lay Members, to see whether it accorded with their view. We regard that as tinkering or tampering with the process of justice. It is regrettable. It is not due to the fault of either party that there is going to have to be a new hearing. We reject the application for leave to appeal, on the basis that, it seems to us, to be a hopeless appeal in the light of the circumstances and also in view of the fact that it cannot, in our view, be in the employee's best interest that such an appeal should be maintained.

That said, the parties are now faced with the expense of a further hearing to resolve the differences between them. It is not, as I have indicated, their fault that they are in this position; rather it is the circumstances in which the Tribunal originally came to its conclusions and reached their decision. We have no power to compensate the parties for what has occurred, but in the course of argument, we indicated to them that it would be open to them to make an application to the Department of Employment. We believe it to be the appropriate body in these circumstances and invite the Department to consider whether, in the light of what has occurred, it might be appropriate for them to provide some compensation for the costs which have been thrown away, as a result of the errors which have been made in the decision making process. That is our decision.