United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR O LEIGHTON (Consultant)


 


JUDGE BYRT QC: This is a preliminary hearing in the course of an appeal from the decision of the Industrial Tribunal sitting at Southampton on 4 March 1996, when they came to the unanimous decision that the Applicant, now the Respondent, had been unfairly dismissed. He was awarded £12,185 compensation.

The employer now appeals. At the hearing, the Appellants were represented by Mr Venables, who effectively owns the Appellant company. He was a man who started off as a labourer on building sites. He says in an Affidavit before us that, through his own hard work, he has built up a business. At the end of the Applicant's case, Mr Venables, in circumstances I shall refer to in a minute, conceded unfair dismissal and the result was that the Industrial Tribunal's reasons, although said to be extended reasons, are in comparatively short form.

The grounds of appeal raised by the Appellants are in effect two. First Mr Venables says he was badgered by the Chairman of the Tribunal into making the concessions he did to the effect that the Applicant had been unfairly dismissed. Secondly he says that he was unable to put his case effectively because of the attitude of the Chairman, and more specifically he says that the Chairman of the Tribunal failed to take a number of matters into account which would have been relevant on the issue of contributory conduct. Mr Venables does not quite put it like that, but I think the matters he raises are germane to contributory fault, rather than to issues of liability.

His grounds of appeal were supported by an Affidavit which he swore on 25 July 1996, in which he sets out extensively the matters he felt that the Tribunal had not taken into account. They are specifically referred to in sub-paragraphs (a)-(g) of his Affidavit.

As is customary in these matters, the Employment Appeal Tribunal referred that Affidavit to the Chairman for his comments. He wrote back on 2 September 1996 acknowledging the considerable difficulty he had had in conducting the hearing by reason of the fact that Mr Venables was unwilling, or unable to, frame questions to put to the witnesses called in support of the Applicant's case, primarily to Mr Bailey, the Applicant himself.

This is a frequent problem with litigants in person, and one necessarily has considerable sympathy with any Tribunal who has to cope with a situation like this. The Chairman, in his letter, admits that there is a possibility that he was unable to conceal his annoyance. In making that fair and frank concession, he lends some credence to what Mr Venables says in his Affidavit. In that same letter, the learned Chairman seemed unable to understand the context in which Mr Venables thought the matters raised in sub-paragraph (a)-(g) were relevant to the Industrial Tribunal's considerations. There was also a reference which was acknowledged by the Chairman in his penultimate paragraph to possibilities of criminal proceedings being brought against the Applicant. Again he did not see the relevance of that matter.

That is the factual background. The Chairman does in his letter state that he regarded the conclusion of the hearing that there had been an unfair dismissal, almost inevitable, by reason of the fact that Mr Bailey, whatever his faults, was summoned to the meeting at which he was dismissed, without any warning that it was to be a disciplinary hearing, and without being told that he had a right to be supported or represented. In fact, Mr Venables acknowledged he had no knowledge of employment law at all. Perhaps, not surprisingly, the Chairman concluded that on procedural grounds alone, an unfair dismissal decision was almost inevitable.

We have been in two minds whether to leave open that aspect of Mr Venables' appeal to go forward to the full Tribunal. However we have decided, bearing in mind the conclusions we have come to about the second part of the appeal that those matters should be left in the hands of the Employment Appeal Tribunal at a full hearing.

What does cause us concern is that the Extended Reasons do not show that the Tribunal considered contributory fault. Quite plainly the matters which Mr Venables raises in his Affidavit are germane to that issue and as I have said already, it seems that the Chairman, by being mystified about the context in which Mr Venables raises these matters, demonstrated that he had not taken them into account as matters relevant to contributory fault.

We think that this matter should go forward to a full hearing of the Employment Appeal Tribunal and to assist in its determination, we feel that it is important that the Chairman's notes of evidence and of submissions, made by Mr Singleton (Mr Venables' co-Director, who took over proceedings after Mr Venables left the hearing) should be made available, as indeed should those of the evidence of Mr Bailey, both in chief and cross-examination.

There is one other aspect we feel should be dealt with because it was not dealt with in the Chairman's letter of 2 September. We find it unclear whether the Tribunal dealt with the issues of liability and compensation at the same time, or whether it decided to deal with them separately. We think it is important to find that out because it may well account for the fact that the Tribunal appeared to have taken into account none of those matters raised by Mr Venables in his Affidavit sub-paragraphs (a)-(g). For that reason we think it important that the Chairman should be asked this question.

Our decision is that this matter goes forward to a full hearing, that there be directions for the Chairman's Notes of the evidence of Mr Singleton and of Mr Bailey to be made available, and that a letter be written to the Chairman to ascertain whether liability and compensation were dealt with at one and the same time or separately.