United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S AKWAGYIRAM (of Counsel) Yoga & Rajah & Co Solicitors
For the Respondents	MR R DAVIS (Solicitor) K E Davis & Sons Solicitors Warley Chambers Warley Road Hayes Middlesex UBV4 OPU


 


JUDGE N BUTTER QC: This appeal and cross-appeal arise out of a decision of the Industrial Tribunal at London (North). The hearing was on 3 August 1995. The Extended Reasons were sent out on 28 September 1995. The unanimous decision of that Tribunal was that the Applicant was unfairly dismissed, but the Tribunal reduced the compensation by 25% on the Polkey principle, and further found that the Applicant contributed to his dismissal and that it was just and equitable that the reduction should be 75%. It ordered that the Respondents should pay to the Applicant £1,692.52p in respect of compensation for unfair dismissal and further ordered them to pay £270 in respect of two weeks pay in lieu of notice.

The background can be stated shortly. The Applicant had been employed as a partsman and van driver and on 26 August 1994 he was summarily dismissed for bad timekeeping and unauthorised absence from work.

An important issue which arose in the course of the hearing concerned the question of lateness for work. The Applicant denied that he was ever late for work. Evidence was given on behalf of the employers that the Applicant arrived at work late on numerous occasions and the Tribunal, having considered the evidence, accepted the evidence given on behalf of the employers and found that the Applicant was persistently late.

A further question involved his being absent without leave. There again, there was a dispute on the evidence and the Tribunal accepted evidence given on behalf of the employers. In their reasons they dealt with the question of warnings which had been given to the Applicant and made a specific finding in relation to that.

There was, however, no disciplinary hearing and having considered that aspect of the case, they concluded that the reason for dismissal was conduct, but that the failure to follow the appropriate procedure rendered the dismissal unfair.

They went on to say specifically that they accepted that had there been a hearing, there was a significant possibility that the Applicant would have been dismissed in any event. It was on that basis that they reduced the compensation by 25%. Further, they said, as they found the Applicant contributed to his own dismissal in view of the persistent lateness and unauthorised absences referred to already, the percentage was 75% reduction.

On the hearing of the appeal today, the main complaint concerns the reduction in respect of 75%. A point raised in the amended Notice of Appeal is that the Tribunal should not have found a reduction of as much as 75%. There was however, in our view, clearly evidence which permitted them to do so, subject only to the further point which is raised, namely whether the Tribunal should have given the Applicant (the Appellant in these proceedings) an opportunity of giving evidence specifically in relation to that aspect.

Reliance is placed upon the case of Slaughter v C Brewer & Sons Ltd [1990] ICR 730, a decision of the Employment Appeal Tribunal presided over by Wood J. At page 738, towards the foot, Wood J said:

"There is however one further ground of appeal which requires our attention. It seems to be somewhat prevalent and it is that the industrial tribunal gave its decision on 'contribution' at the same time as giving its decision on liability and without hearing argument on that issue. This problem was recognised by the National Industrial Relations Court as long ago as 1974."

Then Wood J set out an extract of a judgment by Sir John Donaldson in the case of Mercia Rubber Mouldings Ltd v Lingwood [1974] ICR 256 at page 257, and Wood J went on to say:

"A tribunal is of course master of its own procedures. A practice has grown up - no doubt with sound administrative reasons - of deciding liability and then adjourning and asking the parties to reach agreement on compensation. In order to help in this process it is desirable for the parties to know of any intended reduction in such compensation. This is usually expressed in percentage terms as 'a contribution'. When beginning a case - especially a long one - it may not always be easy to see whether arguments on compensation issues are going to be possible before deciding liability and therefore the tribunal may not know how it will proceed at the close of the evidence.

Those representing parties should know that a tribunal may well be taking the course of deciding contribution at the same time as liability and be ready to argue the issues, but there may be some room for misunderstanding. Where parties appear in person then they may not know the usual procedures. Thus, a representative may well address a tribunal only on liability. It is difficult to know how best this problem can be handled, but it is important for chairmen of tribunals to know that it exists."

Two points should be noted. The case of Slaughter v C Brewer & Sons involved a number of complex issues widely differing from those in the instant case. Secondly, it is argued here that the Applicant was appearing in person and in fairness, the Tribunal record states just that. He was however, on the basis of the information before us, assisted by someone, whether as a MacKenzie friend or in some other capacity, it does not make a great deal of difference, and that person, who is in fact present here, had been good enough to cross-examine on his behalf and to take an active part in the proceedings.

Certainly, when one looks at page 31 of the EAT bundle, which is the Chairman's note, the submission made by Mr Apaw is summarised in only a few words:

"Lateness denied. No records. Contract of employment not supplied."

It is argued that the position might have been, or would have been different, if the Tribunal had made it plain that they wished to hear arguments specifically in relation to the question of contribution and that they were in error in failing to make that plain.

It is however, completely clear, in our judgment, that the issue of lateness formed a major part of the evidence and argument before the Tribunal. This is not an issue entirely separate from the question of unfair dismissal and it was, in our view, almost inevitable that the Tribunal would consider the issues at the same time.

In the end, we do not consider that the Tribunal erred in its procedure or that any injustice was done, and we are clearly and unanimously of the opinion that the appeal fails and must be dismissed.

I turn now to the cross-appeal which deals only with the question of compensation. The evidence given by the Applicant to the Tribunal, as seen at pages 31 and 32 of our bundle, was that he stated that he was still unemployed, that he had been looking in local papers and so on. He said he had not done any casual work and the overall effect of his evidence was therefore, that quite simply he had been unemployed and had received no remuneration.

It so happened that, some time after the hearing, the employers obtained information which suggested that the Applicant's evidence to the Tribunal on this aspect was untrue. They therefore made enquiries and we have before us a number of documents.

The question as to whether fresh evidence should be admitted, either before the Employment Appeal Tribunal, or indeed, before an Industrial Tribunal after the hearing has concluded, was considered in the case of Wileman v Minilec Engineering Ltd [1988] IRLR 144, which followed the well known principle laid down by the Court of Appeal in an earlier case Ladd v Marshall [1954] 1WLR 1489:

"Three conditions must be satisfied.. First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible."

The first two points are realistically conceded by Counsel on behalf of the Appellant. The evidence, which is now available, could not reasonably have been obtained, the employers not knowing what evidence the Applicant was going to give on this issue and it is evidence which, although not decisive, could have an important influence on the result of the case, so far at least as compensation is concerned.

It is however argued on behalf of the Appellant that here, the evidence is not such as is presumably to be believed, that it is not apparently credible, and in that respect reliance is placed upon the fact that in the letter written by chartered accountants on 2 November, it is stated:

"Please note Mr Hamif Abdul commenced employment with our client on 1 August 1995 for a probationary period of 4 weeks. The employment ceased towards the end of the month and our client paid him a salary of £1,000 for the calendar month of August 1995."

If that payment was made, what lies behind it or the reasons for it, is not something which it is appropriate for us, the EAT, to consider. It is, however, evidence that the Applicant was being paid or was about to be paid and that he knew that at the material time. Indeed, in the letter written by Solicitors on his behalf dated 12 January they say:

"My client however admits that John, the Manager, had promised him casual work as soon as the case was over."

On the face of it, accordingly, the Tribunal was, or may well have been misled by the evidence given by the Applicant.

In all the circumstances, we are clear in our conclusion that this is a case therefore, where the Respondents as cross-Appellants are entitled to succeed on this issue and we accordingly direct that the matter be remitted to the same Tribunal to consider the question of compensation in the light of the fresh evidence which has been adduced.