United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 881_95_2405

Appeal No. EAT/881/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 24 May 1996

THE HONOURABLE MR JUSTICE MUMMERY (P)

MS S R CORBY

MISS C HOLROYD

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MR B ROBERTS          APPELLANT

P.M.T. LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE BY OR ON BEHALF OF           APPELLANT

For the Respondents NO APPEARANCE BY OR ON BEHALF OF           RESPONDENTS


 


MR JUSTICE MUMMERY (PRESIDENT): This is a review instituted on the initiative of the Employment Appeal Tribunal under Rule 33 of The Employment Appeal Tribunal Rules 1993: the Appeal Tribunal may, of its own motion, review, revoke, or vary, an order which it has made. The grounds on which that may be done are that:

"(a) the order was wrongly made as the result of an error on the part of the Tribunal or its staff;

(b) a party did not receive proper notice of the proceedings leading to the order; or

(c) the interests of justice require such review."

In this case, there was a Preliminary Hearing of an appeal by Mr Roberts against the decision of the Industrial Tribunal held at Shrewsbury on 6 and 7 June 1995. The Extended Reasons were sent to the parties on 12 July and explained why the Tribunal had reached the unanimous view that Mr Roberts dismissal was fair and that his application should fail.

When the case came before the Employment Appeal Tribunal for a Preliminary Hearing on 19 January 1996, a Mr Knowles appeared as the representative of Mr Roberts. Nobody appeared for the Respondents, because it was an ex-parte hearing. The Tribunal decided to allow the case to proceed to a full hearing. That part of the Order will remain unaffected by what we propose to do on this review hearing. The review hearing has been initiated as a result of the direction given that the Chairman should produce his Notes of Evidence.

The Chairman of the Tribunal was notified of that Order. He wrote to the Tribunal expressing concern that he appeared to have been required by the Tribunal to produce all the Notes of Evidence, not just notes on any specific matter. He informed the Tribunal that his Notes of Evidence ran to 115 pages. These circumstances that led him to question whether there had been some mistake in the Order that was made. It is unusual for all the Notes of Evidence made at an Industrial Tribunal hearing to be required for the purposes of arguing a point of law on an appeal. Following that, enquiries were made by this Tribunal of the representatives of each side. The Respondent's solicitors wrote a letter to the Tribunal on 8 May 1996, when they were notified of the hearing of the review. They said that they had played no part in the proceedings so far. Their understanding was that the Tribunal had decided, of its own accord, that the Chairman's Notes of Evidence should be produced. They were not able to say which parts of the Notes should be produced. The most they could say is that the Notes would be of assistance to the Employment Appeal Tribunal. They were unable to comment further. They indicated that they would not be attending today.

The response of the Appellant's representatives, Mr Knowles of Personnel Advisory Services, who are employment rights advisers, was that they did not propose to attend. In a letter dated 3 May 1996 they pointed out this:

"It was by the motion of the Chairman of the Preliminary Hearing Jan. 19th, and not at my suggestion, that the Shrewsbury chairman's notes were ordered. However, I would wish to observe that, that order having been made, I can see no objection to those notes being available."

We can only know if they can help towards the resolution of this Appeal if we have sight of them.

It would therefore seem advantageous if they are to hand."

In the circumstances described, we propose to decide this review on the written submissions, and on our consideration of all the papers. On reading the decision of the Industrial Tribunal and the Notice of Appeal, we have reached the conclusion that in fact the Notes of Evidence are not required at all in order to determine the points raised on the Notice of Appeal. The main points raised on the Notice of Appeal are that the Industrial Tribunal erred in law in mis-applying the well-known guidelines in the case of Burchell, which relates to a case of dismissal for misconduct, that the disciplinary process contained flaws which rendered the dismissal unsound, and that the decision of the Industrial Tribunal was contrary to natural justice.

In our view, it will be possible for this Tribunal at the full hearing, which has been directed, to determine all of those points, insofar as they raise questions of law, without the assistance of any of the Notes of Evidence originally ordered. In our view, we are entitled to vary the Order made at the Preliminary Hearing in relation to Chairman's Notes, in that, on fuller consideration of the matter, and in the light of the representations of the parties, the interests of justice require that this matter proceeds without the Industrial Tribunal Chairman having to produce his Notes. We vary the Order of 19 January by omitting the direction for the production of Chairman's Notes. The Tribunal will make arrangements for the Chairman at Shrewsbury to be notified of this Order, and for the parties to be notified too.