United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS E ANDREW (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE D M LEVY QC: This is an appeal which arises out of an unhappy afternoon when Mrs Joan Adey ceased to be in the employ of Mr John Moss. She had been employed for a considerable time as a shop assistant at a shop called Late News. Apparently, there was some sort of dispute as to whether her hours should be changed. She saw Mr Moss one afternoon and, as the Tribunal found, there was a misunderstanding at what happened at that meeting. In paragraph 5 of the Summary Reasons they say this:

"5. The Tribunal have no hesitation in finding that the parties were both at cross purposes but that they both accepted that by 4th August 1996 the contract of employment had come to an end. The applicant thought that she had been dismissed. The respondent thought that the applicant had resigned."

The Summary Reasons were sent to the parties on 27 November 1996. Extended Reasons were sent a little later on 13 December 1996, where the findings were expressed at greater length.

Mrs Adey was, not unnaturally, very unhappy about the decision of the Tribunal and she appealed by a Notice which was received at this Tribunal on 18 February 1997 in the form of a manuscript letter.

We have had the great benefit of Ms Andrews appearing before us this morning on the ELAAS scheme and she tells us that she discerns in the papers, which she has read on behalf of Mrs Adey, this point. At the hearing before the Tribunal Mrs Adey had a statement from a witness who was not there. That statement contradicted some evidence called by the employer and, if evidence in accordance with that statement had been given, there might have been a different result. Ms Andrews tells us, on instructions, that the Tribunal agreed to read the statement de bene esse, retired to read the statement and having read it, told Mrs Adey that they were unwilling to admit the statement in evidence. There is no reference to this statement either in the Extended Reasons or the Summary Reasons.

Ms Andrews submits, on the basis of this, that there has been an unfair trial; that justice has not been done. With great respect to Ms Andrews, it is very difficult for a Tribunal, who have had a full day set aside for hearing, if a witness is not there, to know what to do. If they adjourn the proceedings (and we do not know whether or not there was any request for an adjournment) they put both parties to considerable extra expense and inconvenience. If they have a signed statement of a witness it is very difficult to know what strength can be attached to it when there is no possibility of them themselves seeing the witness or having the evidence tested by cross-examination.

It seems to us that in the circumstances, the course taken by the Tribunal was a perfectly fair one and one which cannot be criticised in the way which on instructions, Miss Andrews seeks to criticise it.

As Ms Andrews accepted there was no other point in the appeal. The point which she took in our judgment, cannot succeed on appeal. We therefore dismiss this appeal at this stage. Obviously we have sympathy for Mrs Adey but cases cannot be decided on sympathy.