Appeal Nos. EAT/716/94
			 EAT/717/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 8 March 1995

	Before

	THE HONOURABLE MR JUSTICE BUCKLEY

	MR A C BLYGHTON

	MR K M YOUNG CBE

MR L WHITE	APPELLANT

WORCESTER ROYAL INFIRMARY	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A BROWN
Lay Representative

For the Respondents	MR A FARRAR
Solicitor
Lewington Partnership
Midland House
132 Hagley Road
Birmingham
West Midlands
B16 9NN

	MR JUSTICE BUCKLEY:    There is before us an appeal of substance, that is an appeal against the decision of the Tribunal sitting at Birmingham on 14 and 15 June 1994.  The decision itself is dated 18 July and by that decision the Tribunal found that the Applicant had not been unfairly dismissed, which was the complaint he had made.

	There is, at the same time, before us an appeal against the decision given by the Chairman of that same Tribunal on 29 July, not to review the matter.  The Applicant, or his advisers asked for a review.  Strangely, we have not had placed before us the letter requesting the review, but it is apparent from the reasons given for refusal, at least to some extent, and perhaps to a sufficient extent as far as we are concerned, what the request was.

	The nature of the claim was simply that the Appellant was found not to be at work when, according to the rota, he should have been and he had filled in his time sheet indicating that he was at work when he in fact he left early.  It appeared, on investigation, that he had, at the very least, acquiesced in others for whom he was responsible doing the same thing at weekends and he had, I think, countersigned their timesheets, which of course were false in the sense that they showed attendance in accordance with the rota, when in fact the employee in question had gone early.

	That was the misconduct alleged and the Tribunal found it was established and it was serious.  The Appellant, as appears from the Notice of Appeal to this Tribunal, which is clearly the main document we have to go on, raised various matters in answer.  There are only two with which we are concerned for present purposes.  

	One was a general allegation that he was doing no more than perpetuating a practice that was in place when he became kitchen superintendent at Ronkswood Hospital.  That was a general allegation and according to the Tribunal's findings, he was able to produce some evidence, either through witnesses or letters, supporting that.  The Tribunal made findings that that practice had gone on to an extent.  

	The other seems to us potentially the central issue.  An important allegation that he had been directly encouraged in this practice by the Respondents.  That is an allegation which appears in paragraph 4 of the Notice of Appeal and the allegation is that, as a quid pro quo for his working at one site or another at the weekend, outside the strict terms of his contract, management directly encouraged him to leave early and to fill in the time sheet as if he had worked the full rota or shift.  

	Before us, Mr Brown who appeared at the Tribunal for the Appellant, indicated that that was an allegation involving Mr Pearson and/or Mr Thompson.  Mr Thompson is the District Catering Manager and Mr Pearson is the Catering Manager.  Mr Thompson, it appears, was one of those primarily involved with investigating this matter on behalf of the Respondents, and was thus directly involved in the disciplinary proceedings which followed.  Mr Pearson, to an extent, was also involved.  We have in front of us, a note of an interview of Mr Pearson himself giving his knowledge, or lack of it, of relevant matters.  

	It has seemed to us that that was indeed an important and potentially even crucial allegation made by Mr White at the Industrial Tribunal.  If substantiated to any real extent it clearly could have had, at the very least, a significant influence on the ultimate decision.  Why it appears as a ground of appeal is because it is said that the Tribunal's Reasons are silent as to that particular allegation.  That is true.  The Reasons do not deal, at all, with that allegation.  

	It is to be noted clearly, that the Reasons do deal with the general allegation to which we have referred and they deal with that fully and carefully.  We say no more about that but they do not deal with the specific allegation of direct encouragement, in particular involving Mr Pearson and Mr Thompson.  That was a matter which was clearly relied upon by the Appellant in seeking a review, because in the reasons given for refusing it in paragraph 2 that topic is referred to by the Chairman.  

	Unfortunately, as it turns out, he only dealt with it by a general comment that, in reaching its decision the Tribunal considered all the relevant evidence and made the point that they were not bound to put everything that has been said before them, or canvassed before them in their Reasons.  That of course is true and all sorts of minor pieces of evidence, argument and so forth, quite properly do not always find their way into a judgment or reasons of a Tribunal.  But a central point such as this one, in our view, clearly should be dealt with.  
	The most convenient way we can see of resolving this, is to call for the Chairman's notes which we limit in the way we will indicate in a minute.  There is a subsidiary point, which is also of some potential importance and that touches a witness, a Mr Palmer.  Again, reference can be made to the Notice of Appeal.  It is paragraph 3 and the point is simply this.  That the Respondents stated that this practice did not exist and no one at management level had known any knowledge of it.  

	The document to which we referred a moment ago, which is a note of Mr Pearson's interview, records that he was specifically asked by Mr Thompson whether, over the past four years anything had happened at Ronkswood to make him think that there was a problem of this sort, and his answer was, "nothing at all".  A Mr Palmer was ordered to attend to give evidence and apparently, we have to say that because we are only relying on the Notice of Appeal, he gave evidence that Mr Pearson himself, had spoken to him on two consecutive weekends because Mr Palmer had been caught out doing this very same thing.  In other words going home early.  Apparently, the Respondents, so we are told, produced a document supporting that at the hearing.  

	That may be a subsidiary point, but it is one potentially of great importance because it flatly contradicts, on the face of it, some answers given by Mr Pearson in interview and these two points together clearly bring into question Mr Pearson's and Mr Thompson's evidence and role in investigating this matter on behalf of the Respondents.  

	The notes that we call for are the Chairman's notes of Mr Palmer's evidence and an identification of the documents or document we are told that were produced in accordance with his evidence, produced by the Respondents or disclosed by the Respondents, which contained a written record of those incidents.  Those were incidents involving Mr Pearson.  Secondly, the evidence of the Applicant Mr White himself.  Any evidence which touches his allegations of direct encouragement, as we have endeavoured to identify, and in particular allegations involving Mr Pearson and/or Mr Thompson.  Again, we hope we have sufficiently identified the point to save the Chairman reproducing large amounts of evidence.  It is only on that point.  Further identification can be gleaned from paragraph 4 of the Notice of Appeal and of course, it will cover evidence whether in-chief, cross-examination or examination by the Tribunal.

	Thirdly, the evidence of Mr Pearson and Mr Thompson on this point only.  In other words if they were asked and gave any evidence, either denying or at all, in relation to these allegations and the final point is this; that there is in the Notice of Appeal, and this is without prejudice to other points that we are not presently touching on at all, the suggestion that the Tribunal continued the hearing, in particular, continued their questioning of the Appellant when not only Mr Brown, his representative was out of the room and in the lavatory, but during part of the time a Mr Morris, appearing for the Respondents, was also absent from the hearing.  

	Mr Brown has candidly accepted before us that he did not actually make an application for an adjournment whilst he went to the lavatory, nor on his return did he ask the Tribunal to bring him up to date with what had happened in his absence.  Clearly, he should have done both of those, but at the very least, the latter.  However, it does seem to us an extraordinary state of affairs, if it be the case, that a Tribunal was continuing a hearing, in particular an important part of it, such as questioning an Applicant themselves, when not only one, but for part of the time, both parties representatives were absent.  Whether that point would prove to be of any substance depends or may depend ultimately on what actually happened whilst the parties were absent and therefore we ask the Chairman to include in his notes of evidence those parts of his notes which indicate whether and if so, what submissions were made by the parties representatives about that topic, whether the Tribunal were asked to adjourn or asked to say anything when the representatives returned and also, in so far as the notes reveal this, what answers were given by the Applicant in the absence of the parties.  

	That is as far as we can take this matter.  We do not intend anything we say to, in any way prejudge any of these issues.  We of course have considered the matter before this hearing started, but it became clear to us as we heard submissions that this appeal could not be dealt with properly or fairly in the absence of these notes.  We therefore have deliberately refrained from deciding any of the points that are raised in the grounds and make no further comment on them.  

	This matter will have to be re-listed when the notes are available and the appeal will then be heard.  We would only add two things, (1) we hope it is apparent from the way we have expressed ourselves that we have had to rely upon the grounds of appeal as the basis for the decision we have reached today.  We were told by Mr Farrar who appears for the Respondents that he was prepared to accept that the particular point involving Mr Pearson and Mr Thompson, that is the direct encouragement point, was taken and some evidence was given about it.  

	To that extent the parties were agreed but he could not go further because he had not been given any notes that the Respondents' representatives may have made during the hearing.  It is no disrespect to Mr Brown at all, but we do have to make the point that we are, to a large extent, in the dark on this topic and we are simply relying on his assertions through the grounds and to us, that this matter was a significant part of his case and that evidence was given about it.  Upon that basis we have reached the decision that we have.  It may be the notes will reveal an answer to it.  It may be they will not, that remains to be seen.

	Finally, it is unfortunate that neither representatives today seem to have their own notes of the evidence given or any notes of what happened at the Tribunal.  It is unfortunate that that is the case.  Had the parties had with them notes which they ought to have taken, at least of the salient points of the evidence, it may be that they could have agreed a rough note at any rate of the evidence and we could have managed to dispose of this matter without this interruption for the Chairman's notes, but that is unfortunately the position.  

	We would suggest that the parties get together, so far as they can before this appeal comes on, or is relisted, and see to what extent they can agree their notes or even recollection of the evidence that was given about this.  Of course, the parties are not going to agree necessarily the effect of it or the inferences that should be drawn from it, but they ought to be able to agree what was said at the Tribunal.  If they cannot, they cannot, but any notes that either party has of the Tribunal hearing ought to be available at the next appeal.  

	Equally, any documents that touch these points.  For example the document we have mentioned relevant to Mr Palmer's evidence that the Respondents produced.  That clearly ought to have been placed before us and must be available on the next hearing, together with any other documents that assist or may assist the Tribunal on the next occasion.