United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 560_95_1203

Appeal No. EAT/560/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 12 March 1996

HIS HONOUR JUDGE N BUTTER QC

MR J D DALY

MR J H GALBRAITH CB

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MR J MURRAY          APPELLANT

BRITISH BROADCASTING CORPORATION          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR C DABEZIES

(Solicitor)

Kensington Citizens Advice Bureau

140 Ladbroke Grove

London

W10 5ND

For the Respondents MS E MORAN

(Of Counsel)

Litigation Department

British Broadcasting Corporation

White City

201 Wood Lane

London

W12 7TS


 


JUDGE BUTTER QC: This is an appeal by Mr Murray against a decision of the Industrial Tribunal held at London (North) on 24 March 1995. The extended reasons for the decision were sent to the parties on 4 April. The unanimous decision of that Tribunal was that the Applicant resigned his employment with the Respondent by his letter of 30 May 1994, and that the Tribunal had no jurisdiction in the case, so that his application was dismissed.

A number of points have been raised in the Notice of Appeal, but for reasons which will become apparent shortly, it is not necessary for us to deal with all those points. It may be convenient if we turn straight away to grounds B and D which are linked. What happened before the Tribunal was that the Applicant came to the Tribunal with a witness statement, which he then read as forming in effect his evidence in examination in chief. He was asked a number of questions by the Chairman and then Counsel on behalf of the Respondents cross- examined him; the cross-examination relating mainly to the allegation of fundamental breach of contract. The Chairman indicated before the lunch break that it was felt that the Tribunal would be assisted later by a cross-examination on causation, but after the lunch break the Chairman, in effect, stopped the cross-examination, indicating that the Tribunal was prepared to assume that there had been a fundamental breach by the employers and said in effect that the issue was whether the Applicant had resigned as a consequence of that. The fundamental breach was not defined as such, though it was probably clear to the parties what the Chairman had in mind.

The parties then had an opportunity of addressing the Tribunal further, but no additional evidence was called by the Applicant and there was no further cross-examination of him, similarly no evidence was adduced by the Respondents. Today, this Tribunal understands why the Industrial Tribunal below took the course it did, and certainly it is clear on the authorities, that there are cases in which an Industrial Tribunal can properly stop a case well before the normal conclusion of the hearing, although it is a power which must be exercised with caution.

The difficulty in the present case is that the Applicant gave evidence as to the reason for his letter of resignation. This was a crucial part of the case. At the end of his witness statement he said:

"In all the circumstances I could not see any alternative to resignation. I think that the respondent did not appreciate the severity of my condition, [referring to RSI] despite repeated complaints by me, and therefore did not adopt readily available measures to limit its effect."

It was vitally important that if the Tribunal were not going to accept that account, that the Chairman should have ensured that documents or other matters upon which the Tribunal were proposing to rely in not accepting the Applicant's evidence, should be put to him so that he should have the opportunity of dealing with them. As it was, the Industrial Tribunal expressly found that they were impressed by the Applicant, that he was not untruthful in any way, but then went on to reject his evidence upon the main issue.

Criticism has further been directed before this Tribunal today, at the fact that in their extended reasons the Tribunal did not set out specifically why they had so rejected the Applicant's evidence. In our judgment it is not sufficient for Ms Moran, whose clear and careful argument we found helpful, to say that there was other evidence upon which the Industrial Tribunal could have reached it decision. Taking all matters into account, we are unanimous in our view that the decision and procedure adopted below, in the circumstances, was sufficiently seriously flawed as to involve an error of law, with the result that in our judgment, the matter has to be remitted to a differently constituted Tribunal, to reconsider the matter if indeed the parties are unable to reach some agreement between themselves.