United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondents	LORD MESTON QC The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS


 


JUDGE D M LEVY: Mr Keith Andrew Walters was employed by the Department of National Heritage ("the Employer") for a period which ended when Mr Walters complained that he had been unfairly dismissed and that there had been discrimination and victimisation in equal opportunities by his employer. He made an application to an Industrial Tribunal for appropriate relief, which was received on 22 June 1993. After an answer had been put in, the matter proceeded to a hearing before the Industrial Tribunal.

The first day of the hearing was on 29 July 1994. During that hearing Mr MacDonald gave his evidence-in-chief for the Employer and was cross-examined on behalf of Mr Walters and the hearing ended at 5 o'clock. It was expected to resume in October of that year but, in fact, there were negotiations which went on for some time and eventually the matter was re-listed for hearing in the Autumn of 1995.

The Employer made it clear that Mr MacDonald, who had not finished giving his evidence, would not be available for the resumed date of the hearing which the Tribunal had suggested, but the date was not altered. At the resumed hearing, it was determined that the Tribunal would ask some questions of Mr MacDonald in writing and that the three questions, which Lord Meston, who appeared for the Respondent, wished to put to him in re-examination, would also be answered by him in writing.

We have the Chairman's note of what Mr Walters said about that procedure at the resumed hearing. It is short: "no cross-examination". From that note, we have accepted that as Lord Meston submitted happened, on 18 September Mr Walters made clear that he did not wish to cross-examine Mr MacDonald further.

There was a third day of the hearing on 27 October 1995, at the end of which the Tribunal reserved its decision. The Extended Reasons in the Decision, promulgated on 12 December 1995, expresses, in some detail, why the Tribunal came to the decision it did. The unanimous decision was that Mr Walters had been fairly dismissed; his claim was therefore dismissed.

Mr Walters made an appeal to this Court against that decision by Notice of Appeal dated 16 December 1995. The Notice of Appeal reads:

"I wish to make an appeal or new Tribunal on grounds that the minutes are not correct and true. The facts wrong are the dates 27 October and September 1994 should be 1995."

Mr Walters is right in saying that the Extended Reasons wrongly gave the second and third days of the hearing as in 1994 and not 1995, but that is not an error of consequence. To continue:

"The number of people for the Department of National Heritage is not two, Mr Macdonald and Mr T. Gough but three. Mr M Bridger is missing. He gave evidence. The case of my appeal to D.Beeton and the Civil Service Appeal Board was not dropped by me. It was my wish for the Civil Service Appeal to go ahead as this was my right under the Department's rules. I was not allowed this right I was entitled to. My papers to the Industrial Tribunal was nothing to do with it at all. If mine Civil Service had gone ahead I may not need a Tribunal.

The case of Mr Macdonald not turning up to answer more questions by the Tribunal Chairman after being told by Chairman to when the case adjourned. Also this action stopped me asking questions in my chance to cross-examine Mr Macdonald's investigation and statements against me.

Also 98 per cent of the Tribunal was based on Mr Dillamore's statement against me alone. I have never been given the chance in court to challenge or cross-examine Mr Dillamore's story -like the management and Tribunal members were all able to challenge and cross-examine my true side of the true.

Also management put pressure on my union not to represent me. That is one reason I represented myself. This is my case for appeal."

That Notice of Appeal was considered by the Employment Appeal Tribunal under the ex-parte preliminary hearing system on 29 April 1996. On that date Mr Walters appeared in person and the Tribunal ordered that the appeal be allowed to proceed to a full hearing of the Employment Appeal Tribunal solely on the ground that the Appellant was denied the right to cross-examine the witness, Mr MacDonald.

The Tribunal directed that the Chairman be asked to produced his notes of evidence of Mr MacDonald and the procedure which occurred when, as alleged by the Appellant, Mr MacDonald was not available for cross-examine. The Tribunal further ordered that skeleton arguments be exchanged and lodged no later than 14 days before the hearing.

Mr Walters has appeared before us today and we limit this judgment to the matter on which he was allowed to appeal, namely he was denied the right to cross-examine Mr MacDonald.

We are satisfied, having looked at the Chairman's notes and having heard from Mr Walters and having heard the submissions of Lord Meston, that there was no denial by the Industrial Tribunal of any right to Mr Walters to cross-examine Mr MacDonald. The cross-examination of Mr MacDonald was carried out on the first day of the hearing by his then representative. Cross-examination was concluded at about 5 pm, when it was too late for re-examination to take place. A full cross-examination of Mr MacDonald had taken place and in those circumstances, no breach of natural justice occurred thereafter and the sensible course followed by the Chairman is not a course about which Mr Walters is entitled to complain.

We have read out the Notice of Appeal in some length because it is clear from that that what this appeal was really about is findings of fact, which Mr Walters did not like. Those, very properly, were not allowed to go forward in so far as there was evidence on the face of the Extended Reasons which supported them.

Having carefully listened to all Mr MacDonald's submissions we are satisfied that the hearing in the Industrial Tribunal was in no way improper.

In the circumstances, the grounds of appeal before us fail and the appeal is dismissed.