United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR PAUL GILROY (of Counsel) Legal Department Pilkington United Kingdom Ltd Prescot Road St Helens Merseyside WA10 3TT


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against the Registrar's refusal to order the provision of notes of evidence in relation to an appeal against a unanimous decision of an Industrial Tribunal that Mr Forbes had been unfairly dismissed by his former employers. The decision of the Industrial Tribunal is set out in extensive form running to 40 paragraphs and 10 typescript pages.

The employee was dismissed by reason of his alleged gross misconduct and the Tribunal analyse the reason for the dismissal and have concluded, as I read their decision, that the dismissal was unfair, essentially because it was not a reasonable sanction to have imposed in the circumstances of the case.

The employers appeal against that decision on a number of grounds which are set out in paragraph 5 of their Notice of Appeal. It is to be observed that the nature of the points of law, which are relied upon, are firstly, that the Tribunal erred in law in holding that the reason for the dismissal was not sufficient to justify a reasonable dismissal.

Secondly, that the Tribunal erred in law in failing to consider and/or even acknowledge the case law cited to it on disparity of treatment of employees. Thirdly, that the Tribunal erred in law in concluding that it was concerned about the manner in which the decision was reached and yet failed to explain to what extent procedural unfairness had influenced its decision. They failed to say who the others were who may have been equally culpable. They failed properly to deal with contributory fault and a reduction in compensation due to misconduct and they failed to make it clear whether or not the employee did in fact receive payment for a particular job. The Tribunal substituted its own view for that of the employers and they may have misdirected themselves or misunderstood the law or misapplied the law in reaching their conclusions.

Those are the substantive grounds. There are then three general allegations of perversity which are made. The grounds of appeal are elaborate and over-lengthy (if I might say so) in the Notice of Appeal.

In support of this appeal against the Registrar's refusal, in a number of discrete paragraphs the employers say that they need the Chairman's notes of evidence. The first paragraph which deals with this is paragraph 4, where they say that the Industrial Tribunal failed to explain the extent to which procedural unfairness had influenced its decision on the merits. They say, "It is therefore essential that the Chairman's notes of evidence on the issue of procedural unfairness should be produced". I do not agree.

It seems to me that the point of criticism which is being made about the Tribunal's decision can be made on the face of the decision itself; it is said that the employee accepted in cross-examination that there had been no procedural unfairness, in the sense that he felt able to say anything he wanted at the dismissal procedure and the appeal, but it seems to me that that point can well be made from the first sentence of paragraph 24 of the decision, which refers to the procedures (in the plural) plainly by reference to the first and second stage of the disciplinary process as I read the decision.

As to paragraph 5, it is said that "there were others who may have been equally culpable" apart from the identified Mr Kershaw. Again, it seems to me, that no notes of evidence are required to justify that criticism. The Tribunal has set out in extenso the evidence which they received in their decision and, if the point is a good one that there was nobody other than Mr Kershaw who could have assumed the role of a comparator, that criticism can be made on the face of the decision itself and that the notes of evidence are going to be of no assistance.

Then, in relation to contributory fault, which is paragraph 6 of the basis for this appeal, it is said that, it is essential that the notes of evidence be produced for this issue, so that the Appellant may be able to demonstrate the inconsistency of the Industrial Tribunal in relation to this aspect of its decision.

It seems to me that the question of inconsistency is either self-evident from the decision itself or not. The notes of evidence are not going to advance the case at all. In relation to paragraph 7 it is said that the Tribunal erred in law in the way they dealt with the question as to whether the employee became disentitled to all or part of his compensation by reason of events which emerged subsequent to his dismissal. Again, as it seems to me, that is either a point which is a good one, on the face of the decision itself, or it is not. The notes of evidence will not assist. Without repeating myself, precisely the same can be said about paragraphs 8, 9, 10 and 11, through to the end, paragraph 15.

There is only one possible basis on which a part of the notes of evidence might be of assistance. That relates to a contention made by Counsel this morning that the Tribunal had misstated the evidence of Mr Kershaw at paragraph 16 of their decision. For reasons which do not give rise to any criticism at all, it has not been possible for Counsel or his Solicitor, who were present at the Industrial Tribunal hearing, to indicate to me from their own notes of evidence, what precisely they say the Tribunal should have, but did not record Mr Kershaw as having said. It seems to me (with respect) that this is a very small aspect of the whole of the appeal, but if they wish to create their own note of what they said took place, based on their own notebooks and do it (as I am sure they will) in an honest and competent way, if this point should become critical to the Employment Appeal Tribunal's deliberations, it may be that they will be able to deal with it by looking at that point only in the note which is produced. It goes without saying that, if such a note is to be generated, it should be sent well in advance of the appeal to Mr Forbes, so that he can make his own comment on it. It would not require any evidence other than that of Mr Kershaw and I am not indicating, by saying what I have, that the Employment Appeal Tribunal will be willing to look at any such note at the hearing of the appeal. That remains an entirely open question.

Accordingly, I am quite satisfied that this appeal can properly be argued and maintained without the notes of evidence. The appeal is either good or it is bad on the face of the decision itself. I therefore uphold the registrar's refusal to order notes. I think that they are not necessary for the doing of justice between the parties.