United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 84_94_1701

Appeal No. EAT/84/94

EAT/85/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17 January 1996

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR S M SPRINGER MBE

MR K M YOUNG CBE

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MINEHEAD ROYAL BRITISH LEGION CLUB LTD          APPELLANTS

MRS B GUNTER          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR M WEST

(Representative)

Peninsula Business

Services Ltd

Stamford House

361/365 Chapel Street

Manchester

M3 5JY

For the Respondents MR G S BANSEL

(Solicitor)

Messrs Pattinson & Brewer

Solicitors

30 Great James Street

London

WC1N 3HA


 


MR JUSTICE MUMMERY (PRESIDENT): This is a restored application for directions in relation to appeals by the Minehead Royal British Legion Club Ltd due to be heard by this Tribunal on 12 February.

The Tribunal will hear two appeals; one against the decision of the Industrial Tribunal held at Exeter on 23 July 1993; that Tribunal, for full reasons notified to the parties on 12 August 1993, decided that Mrs Gunter, the Respondent to these appeals, had been unfairly dismissed and stood over the question of remedies.

The second appeal arises out of an unsuccessful application for review and out of the remedies hearing which took place on 25 October 1993. The full reasons for that were notified to the parties on 30 November 1993. Those reasons explained why a correction was made to the earlier decision on liability and explained the basis on which compensation was assessed.

It is not necessary or, indeed, appropriate to express any view about the prospects of either of these appeals succeeding. The matter we are asked to consider follows an interlocutory hearing heard by me alone on 6 December 1994, when an application was made for production of the Chairman's notes. For reasons set out in a Judgment, I explained why the Chairman's notes would not be ordered at that stage. I adjourned the matter to the full hearing.

Following certain remarks in that Judgment, an affidavit was obtained from Mrs Wood, who represented the Minehead Royal British Legion Club at the hearing on liability on 23 July. That affidavit, sworn on 13 January 1995, contains details of her allegation that the Chairman of the Tribunal was not correct in his recollections of what had happened at that hearing. Those recollections of the Chairman are set out in a letter of 30 March 1994 in response to an invitation to comment on one of the grounds of appeal.

The main bone of contention is the Polkey point or, as it is called sometimes "the any difference point" which is relevant to the possible reduction in compensation. In paragraph 9 of the full reasons for the liability decision the Tribunal said this:

"9. The Tribunal finds that the applicant did not cause or contribute to her own dismissal and that if the respondents had followed a fair procedure they would probably not have dismissed the applicant. There are no grounds, therefore, for reducing the compensation to which the applicant is entitled."

The request for a review of that part of the decision, made by letter of 26 August 1993, was on the basis that the Tribunal had not applied the percentage view principle in Polkey. They had failed to do something which they should have done. It was therefore incumbent on them to review their decision in the light of Polkey. That review should be granted in the interests of justice.

That review was refused. The Tribunal regarded the submissions in support of a review as misconceived. It was suggested on the review application that the Tribunal should have waited until both parties had had the opportunity of bringing further evidence on the issue of compensation under Section 74(1) and that only during the compensation hearing proper could any percentage reduction under the Polkey test be applied.

The Tribunal rejected that submission and said that the issues which the Tribunal had to take into account in determining whether there was any percentage reduction of compensation on the Polkey basis, related to the procedures followed by the Respondent prior to the dismissal.

All evidence was heard on those matters which were dealt with in the decision. The issue as to any difference, for the purposes of compensation, that the following of a fair procedure by the Respondent would have had upon the likelihood of dismissal, could only be based upon the view taken by the Tribunal of the evidence given in relation to those matters in the course of the dismissal hearing. They added that, in any event, no percentage reduction of compensation on a Polkey basis had to be applied in this case, in view of the Tribunal's finding that the Applicant would not have been fairly dismissed, but for the procedural irregularities. They therefore declined the review.

The Chairman in his letter of 30 March 1994 stated that he believed that it had been established and understood by the representatives for both parties at the liability hearing that all issues that might have a bearing on reduction of compensation would be dealt with in evidence and submissions. He went on to explain more fully in his comments the position in relation to the liability hearing and to the review hearing.

Mrs Wood's affidavit of 13 January 1995 takes issue with the Chairman's recollections as stated in his comments. She says, for example, in paragraph 19:

"19. ... the Chairman is wrong to say that `all aspects' in relation to a potential reduction of compensation would be dealt with at that hearing, because they simply were not.

20. Nothing was dealt with in relation to a reduction in compensation as a result of the Polkey `any difference test', as we simply did not know what the Tribunal's findings were. ..."

The affidavit was sent to the Chairman on 20 April. He received it on 1 May and it was referred to him. In his letter of 3 May it is said that:

"His considered decision is that it would be inappropriate at this stage for him to add to the observations made in his letter of 30 March 1994."

It was in those circumstances that the representatives of the Appellants, Peninsula Business Services Ltd, wrote to the Appeal Tribunal in November and December at the end of last year asking for the matter to be restored for further directions.

They pointed out what had been said by me in the Judgment on the previous hearing for directions. In those circumstances the matter ought to come back.

At the hearing today Mr West has represented the Appellants and Mr Bansel, the Respondent, Mrs Gunter. The issue is now narrowed to this: whether we should order, in time for the hearing of the full appeal on 12 February, notes made by the Chairman of the submissions made by the parties representatives at the liability hearing on 23 July. Those are relevant to the issue raised in Mrs Wood's affidavit and the Chairman's comments whether the Polkey question was dealt with in argument and evidence at the hearing on 23 July.

Mr Bansel opposed the application even on this limited basis. He informed us that the union representative who dealt with Mrs Gunter's case at the hearing disagreed with Mrs Wood's affidavit. His recollection was that the Polkey point was argued. He submitted that the notes would not assist in any case. The Chairman had made the position clear. The point had been dealt with and a decision had been made that, if a fair procedure had been followed, it would have made the difference. She would not have been dismissed. That was the decision of the Tribunal which they had refused to review at the hearing on 25 October.

We have carefully considered these arguments. We make it clear that we are not expressing any view about the potential value of these notes. We are certainly not expressing any view about the outcome of the appeal. We consider that it would be helpful to have the notes requested and to have any further comments which the Chairman might wish to make on Mrs Wood's affidavit.

If he has nothing to add to his comments, so be it. But if there are matters in Mrs Wood's affidavit which he wishes to put before the parties and to this Tribunal in time for the full hearing, then we would gratefully receive them.

We propose to request the Chairman to produce, in sufficient time for use at the hearing on 12 February, the notes of the hearing of 23 July confined to the notes made of the parties' submissions during the hearing. We are not requesting him to produce notes of any examination-in-chief or cross-examination. We also invite him, if he so wishes, to add to his comments on Mrs Wood's affidavit.

It will then be for the full Tribunal here to decide if these notes and comments assist on the resolution of the points of law that might be argued on the appeal. We have already pointed out to Mr West during the hearing that this Tribunal would be concerned to hear argument as to what scope there was for the "any difference point" in any case, in the light of the findings of fact of the Industrial Tribunal in paragraph 8 of their decision on the serious flaws in the investigation of the charges against Mrs Gunter. That is not a matter for us to decide today. That will be a point on which we wish to hear argument from the representative of the Minehead Royal British Legion Club Ltd at the hearing.

For those reasons, at this restored meeting for directions, we make the limited request to the Chairman for notes and comments.