United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 310_95_1405

Appeal No. EAT/310/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14th May 1996

HIS HONOUR JUDGE B HARGROVE Q.C.

LORD GLADWIN OF CLEE CBE JP

MR J A SCOULLER

---

MR S PARKS          APPELLANT

THE LANSDOWNE CLUB          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellant MR NIGEL GIFFIN

(of Counsel)

Mary Ward Legal &

Financial Advice Centre

42 Queen Square

London WC1N 3AQ

For the Respondents MR C HUTCHINSON

(Representative)


 


JUDGE HARGROVE Q.C.: We have considered carefully the application which has been made before us. Mr Hutchinson on behalf of the respondents will wish to see the whole matter adjourned because he feels that he is at a disadvantage. Mr Giffin recognises that the question which arises from the Seymour-Smith case ought to be adjourned until after the House of Lords decision in July 1996. But, in order not to waste time, he is anxious that his first two points of appeal should be dealt with.

We have considered the matter very carefully, we have borne in mind that Mr Hutchinson is in person, and it is clear upon the third point at least he will probably need some legal assistance.

However, taking all those matters into account, we have come to the conclusion that we should hear just the first two points of the appellant's appeal and we will adjourn the third matter, the application to amend the grounds of appeal until after the House of Lords decision.

JUDGE HARGROVE Q.C.: The background is that Mr Parks was dismissed in November 1993. He claims that it was because he had raised health and safety matters, namely fire precautions at the Club. The respondent claimed that he was dismissed for gross misconduct in that he accepted a sum of money from a taxi driver from an unauthorised firm. The respondent points out that at the preliminary hearing the appellant had been told that the onus of proving that he had been dismissed would rest upon him and therefore details of the actual dismissal did not bulk large in their minds.

The respondents wish to adduce the evidence of Mr Cavanagh, a luggage porter at the Club, who dealt with an incident between the appellant and a taxi driver at the Club on 10th November 1993, the affidavit is dated 11th April 1996. In accordance with a decision in Wileman v Minilec Engineering Ltd [1988] ICR 318, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the tribunal, secondly that not only must it be relevant, but it would probably have an important influence on the result of the case, even though it need not be decisive, and thirdly, that it is apparently credible though it need not be incontrovertible.

The approach of the respondents that because the appellant had to shoulder the burden there was no need for them to go into why he was dismissed is baffling. The position must be with any intelligent person coming to any tribunal that they know that if somebody is saying "X" and you know the truth is "Y", what you do is to make certain that you have some evidence at least to back up the aspect of "Y". The existence of the new evidence must have been reasonably known or foreseen at the time of hearing. The fact that the tribunal indicated the burden of proof would lie on the other side does not exonerate the respondents from arming themselves with the necessary rebuttle evidence. Furthermore, it seems to me that upon the basis that this evidence is garnered some three years almost after the event, there must be grave doubts about its credibility. Therefore upon those two bases this application fails and is dismissed.

I say for the avoidance of doubt, that that deals purely with matters before this tribunal, it does not in any way bind the Industrial Tribunal should in due course of time this matter ever have to go back before such a tribunal.

JUDGE HARGROVE Q.C.: After less than three month's service with the respondents, the appellant was dismissed from his post as a porter. The ground alleged was gross misconduct. The appellant claims that he was dismissed because he raised matters concerning health and safety.

The tribunal held that he had failed to prove that that was the cause of his dismissal. The tribunal was uncertain about the cause, but suggested that a clash of personalities between the appellant and Mr Hatton might be the reason.

The first ground of appeal alleges perversity. The approach which we are invited to take is that the tribunal having heard evidence which they ought to regard as prima facie evidence from the appellant, and being unable to accept the account given by the Club, the net result of that ought to be that the appellant's approach is to be accepted and any other decision is perverse. It is worthwhile considering what was actually said by the tribunal. At paragraph 7(3) it said this:

"What was the reason for Mr Parks's dismissal? Here we are in the greatest difficulties since there is no clear evidence, one way or the other as to the reason for the dismissal."

It then goes on the analyse some of the evidence, and comes to this conclusion at the end if such it can be called:

"Mr Hatton was described by the Respondent's witnesses as a gregarious and voluble personality who would have discussed his colleagues unusual matter (such as Mr Parks's worries about fire precautions) which would arise in the course of his duties. He was also portrayed as someone who might act on the spur of the moment. Mr Parks does not disagree with that description. Mr Parks's demeanour as a witness and when presenting his case was of an irascible and quick-tempered person. We could imagine that there might have been a personality clash between him and Mr Hatton, and this may well have been the cause of Mr Hatton's sudden decision of dismiss Mr Parks. We can only speculate on that."

They continued on then to consider whether the appellant had in fact managed to prove his case:

"We must therefore ask ourselves whether the dismissal was within Section 57A. We have no doubt that if this had been a claim for unfair dismissal, based on two years' continuous employment, we would have found for the Applicant. However the claim is under a different, and new heading. By analogy with Section 152(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (dismissal for trade union activities) the onus is on the employee to prove on the balance of probabilities that he was dismissed for a Health and Safety reason. In view of the lapse of time between Mr Parks's last enquiry on the subject and the act of dismissal, we are not satisfied that he has discharged the burden upon him, and we therefore conclude that the reason (or the principal reason) for dismissal was not a reason within Section 57(A)."

That passage is criticised upon the basis that the only reason given for not accepting it was that there had been a gap of time between the last enquiry and the act of dismissal. It seems to us that the tribunal was perfectly entitled to take the view which it did, that it was left undecided about the actual cause of the dismissal, but that looking at the matter, taking into account all the evidence, they were not satisfied that Mr Parks had made out his claim.

The exercise which Mr Giffin has taken us through, does require a degree of `fine toothcombing' of this decision, which the Court of Appeal has always discouraged. We are satisfied that there is no element of perversity and that aspect of the appeal fails.

The second limb is that the tribunal wrongly excluded evidence. The tribunal refused to admit that the transcript and recording made by Mr Parks of two gentlemen, Mr Sherrington and Mr Hatton, it is with Mr Hatton's recording that the main problem arises.

The tribunal held "their probity and effect would be negligible", because the time which had elapsed between the material event and the recording, and that Mr Hatton was not being called as a witness. Accordingly his account as given in the recording could not explained or really tested by cross-examination. We can well appreciate the difficulty the Industrial Tribunal faced. Neither side had legal representation. Difficulties often occur when tape recording evidence is being proffered, since it is not enough for the maker of the tape to claim that it is an accurate account and an unsullied production. It is necessary normally to produce expert evidence to reinforce that assertion.

Moreover, the transcript itself was capable of a number of interpretations. However, on one view, it is supportive of the appellant's case. It seemed to indicate, again, I emphasise on one view, that Mr Hatton who had been the gentleman who effected the dismissal was saying that he did not know the reason for the dismissal, and it might be argued that that indicated that the account being given by the Club was not entirely accurate. Furthermore, there is some support for the account given by Mr Parks that he was told that he was being dismissed because his face did not fit, Mr Parks went on, but this does not appear in the transcript, to indicate that the reason he face did not fit was because he was making trouble over the question of fire precautions. We have been referred to Rosedale Mouldings Ltd v Sibley [1980] ICR 816, one need not go through the entirety of that case, since the relevant passage occurs concisely at page 822 and is as follows:

" But that leaves a matter of some importance to be decided: whether that gives a discretion to an industrial tribunal to refuse to admit evidence which is otherwise admissible and probative. In our judgment, there is not such discretion in an industrial tribunal to refuse to admit evidence which is admissible and probative of one or more of the issues before it."

We have had two further cases quoted to us. The case of Snowball v Gardner Merchant Ltd [1987] ICR 719 where there was some indication obiter in the report and the passage concerned is at 725, where this tribunal said after quoting the reference to Rosedale Mouldings Ltd v Sibley:

" We have doubts about the validity of this proposition, because our opinion is that the power extends in some cases to the exclusion of evidence which strictly may be admissible. In the Rosedale Mouldings case the wrongly excluded evidence was highly probative and there was no room for balancing prejudice against probative value."

The first thing to be said here is that of course the tribunal does not seem to have gone through such a balancing exercise at all. We have reached the conclusion that the evidence is prima facie probative and relevant to the appellant's case. Though we can sympathise with the tribunal's dilemma, we think it is an error of law not to have admitted that evidence. Accordingly, we shall allow the appeal upon that ground. Order that this case goes back to another tribunal for re-hearing.

There is a third ground of appeal which has been put forward as a result of the case of Regina v Employment Secretary (Ex-parte) Seymour-Smith [1995] ICR 895. Bearing in mind the course we are taking over the second ground of appeal, we are not minded at this stage to accede to the application that the appeal notice should be amended, but we recognise that the appellant wishes to keep that point open upon the second hearing. That is a unanimous decision.

Legal Aid certificate granted.