United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR M D BLOOM (Solicitor) Messrs Hegarty & Co Solicitors 48 Broadway Peterborough PE1 1YW
For the Respondent	MR RICHART Representative


 


JUDGE J HICKS: Mrs Sparrow, who is the Respondent to the appeal to this Tribunal, was employed by Chater Training Associates and down to May 1995 was the effective manager of the Company's trading. The Company had Directors, including a Mr John Ward, who had functioned as the Finance Director.

On 1 May 1995 he, as the Reasons of the Industrial Tribunal put it, "joined the staff as a Placement Officer to fill a gap left by the departure of two employees". Placement Officers were junior and subordinate to Mrs Sparrow, as Manager, and there was therefore created what must, on any view, have been a delicate situation in which in regard to his capacity as Finance Director Mr Ward was Mrs Sparrow's superior, but in regard to his functions as Placement Officer he was under her direction.

A number of difficulties emerged and on 6 June 1995 Mrs Sparrow was called to a Directors' meeting at which various complaints of alleged breaches of duty were put to her and she, in consequence of the board's consideration of those matters, received a first written warning. Shortly after that she resigned on the basis, as she put it, of constant harassment, and the Industrial Tribunal had to decide whether that was a constructive dismissal and, if so, whether it was an unfair dismissal which, of course, entailed the responsibility of finding in the first place whether the employer's conduct (in particular that of Mr Ward) amounted to a repudiatory breach of her contract of employment which she was justified in accepting by her resignation. The Tribunal found that it was and the employers appeal.

Their grounds of appeal are lengthy and in support of them there is a skeleton argument, but what is germane for present purposes is that the grounds of appeal state that the majority decision was wrong, both as a matter of law and further in that it was perverse, and then go on in paragraph 3 to set out what purport to be allegations of errors of law in the sense of distinct specific errors of law and in paragraph 4, which itself extends to some six and a half pages, to develop the allegation of perversity.

In the skeleton argument the skeleton submissions on the ground of perversity again occupy a very substantial part of the whole document and in particular rely upon some 16 instances of evidence of Mrs Sparrow herself, in the light of which the decision is alleged to be perverse.

The appeal has come on before us today, but what has also come on before us, and has to be dealt with first, is an application by the Appellant employers for notes of evidence. That is put by Mr Bloom on their behalf in two ways. First of all, he applies for the Chairman's notes of the evidence of Mrs Sparrow, which occupied the whole of one day, and probably amount in bulk to approximately half of the total of the Chairman's notes. Alternatively, failing that, he asks that the employers' representatives notes of that same evidence be looked at on the hearing of the appeal as showing what her evidence was.

There has already been an application for the Chairman's notes which, as we understand it, was dealt with by the President of Industrial Tribunals and certainly was rejected by him, although neither party has been able to present to us any account of the reasons, if any, given by the President in refusing that application.

The application was then, quite properly and appropriately, renewed to the Registrar of this Tribunal, in accordance with the Employment Appeal Tribunal Rules, and that was rejected by a letter of 27 September, from which it is apparent that the Registrar has not exercised any fresh independent consideration of the matter, but has simply taken the stance that, since the President has ruled against the application, she should not allow it, but should leave it open to the Appellant, as it plainly is open, to renew the application before us. I should say that, in so far as the Registrar's letter gives any indication of what the President's grounds for refusal were, it is confined to the word 'unnecessary'.

We therefore have to consider the application on its merits and we do so, as I have indicated, against the background that a very substantial part of the appeal is put on the ground of perversity and indeed, so far as it is necessary for us to consider at all the potential merits of the appeal, it seems to us that this is an appeal which may very well turn on whether that ground succeeds of fails.

The nature of an appeal on the ground of perversity is that failing any specific misdirection in law in the reasons given by a Tribunal for its decision, and given that errors of fact as such are not appealable to this Tribunal but only matters of law, it nevertheless remains in the last resort a matter of law whether a decision of the Industrial Tribunal is so extreme, irrational, perverse (to use the very word, as it were, that is under consideration), when compared with the evidence before that one is driven to the conclusion that even without any express misdirection they cannot have applied the law correctly to the evidence before them.

On that understanding of the nature of an appeal on the ground of perversity it is perhaps superfluous to go on to say that normally it would be difficult, if not impossible, to decide such an appeal without knowing what the evidence before the Industrial Tribunal was and this Tribunal has, more than once, taken the view that for that reason it will often, if not usually, be proper and necessary to order the production of some part or the whole of the Chairman's notes of evidence in order to do justice to both sides in an appeal on the ground of perversity. That, as we understand it, is essentially the basis on which this application is made.

It is opposed by Mr Richart, on behalf of Mrs Sparrow, but he has not advanced any argument outside the reasons, so far as they can be gathered, for the refusal by the President. As I have said, the only indication we have about that reason is the use of the word 'unnecessary' in the Registrar's letter, and we do indeed fully accept that if a Chairman's notes are unnecessary they should not be ordered, in the first place because they do not assist the appeal and in the second place because they involve the incurring of unnecessary time and expense. But it seems to us that for the proper disposal of this appeal on the ground of perversity it will be necessary for this Tribunal to have notes of the evidence.

I have so far dealt with the matter on the basis of the first limb of Mr Bloom's application, which is for the Chairman's notes, but he has an alternative which is that, failing the Chairman's notes, we should direct that the evidence of the Applicant, Mrs Sparrow, should be before this Tribunal in the form of the notes taken by the employer's representatives at the hearing, and when we asked Mr Richart which notes he would prefer if we were to take the view that some notes of evidence must be before this Tribunal on the hearing of the appeal, he was inclined to favour the Respondents' notes. Notwithstanding that concession, if it was a concession on his part, we for our part are satisfied that if there are to be notes of evidence, as we have decided there should be, they should be those of the Chairman rather than of one side.

We think it would be most undesirable that there should be the possibility of any suggestion on the hearing of the substantive appeal that the notes that are being used are one-sided or partial, or in any other way unsatisfactory, as the basis for approaching the material before the Industrial Tribunal. The proper way in which to know what was before the Tribunal is to have the Chairman's notes. Mr Bloom asks only for the notes of Mrs Sparrow's evidence, and we shall certainly order those, but having reached that decision we should, of course, give Mr Richart the opportunity of saying whether he wishes us to order that that be extended to the notes of any other witnesses and I pause to give him an opportunity of considering that before I proceed on that aspect.

[The Tribunal was addressed by the parties on that point]

Having decided then to order the notes of the evidence of Mrs Sparrow, and Mr Bloom having already indicated that he has no objection to that order extending to other witnesses, and since Mr Richart wishes to have at least two other witnesses' notes before the appeal and has no objection to that of Mr Ward, plainly the principal witness for the employers, our own view is that, just as it would be unfortunate if there were any suggestion at the hearing of the full appeal that the notes being used were one-sided, it would equally be unfortunate if any suggestion were being made that they were incomplete and that evidence had been given which might cast a different complexion on the matter.

We think, therefore, that in the circumstances of this appeal, where we have read the Reasons of the Tribunal with care in their entirety, as also the Notice of Appeal and the relevant part of the skeleton argument of the Appellant, the only satisfactory way of having this appeal dealt with, on its true merits and on the issues which should be before the Appeal Tribunal, is to order the full Chairman's notes of all the evidence, and that is what we do.

ADDENDUM TO JUDGMENT

When this appeal was called on for hearing on 9 October 1996 my colleagues and I dealt first with an application for notes of evidence, which in the event we granted. In the judgment delivered extempore on that date I stated that there had already been such an application, adding "which, as we understand it, was dealt with by the President of the Industrial Tribunals". It is now clear that that was a misunderstanding (probably mine alone, rather than shared by my colleagues), since the application was in fact made to the President of this Appeal Tribunal. The judgment proceeds accurately, to record that that application was rejected and then states that a renewed application to the Registrar of this Tribunal was also rejected. Having now seen the letter of application to the Registrar I think it was not strictly a "renewed" application for the Chairman's notes but an application to refer to other notes of the evidence. However that may be it is the case, as stated in the judgment, that that application also was rejected.

None of this affects the decision which we reached or our reasons for it, which as the judgment makes clear arose from our own consideration of the application on its merits.