United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS A HENTHORN (Of Counsel) Messrs Seakens & Co Solicitors Park Chambers 20 Upton Road Watford Hertfordshire WD1 7EP


 


JUDGE HULL QC: This is an appeal to us by Sexton I C E Ltd against a decision of the Industrial Tribunal which sat at London (South) on 27 November and 20 December 1996. That Tribunal was presided over by Mr Teper with two Industrial Members. They heard an application by the Appellant's employee, Mr Gary James Byrne, complaining that he had been unfairly dismissed. He was a Sales Negotiator employed by the Appellants from 1 March 1993. On 21 June 1995 he was suspended for suspected theft. Very shortly afterwards, on 1 July 1996 he, having been interviewed on that day by the Personnel Manager, was dismissed. Hence his complaint.

Mr Byrne's case was that he was not guilty of theft or dishonesty of any sort. The nature of the case against him was apparently that he had been making false and unjustified claims for commission as a salesman.

The case was first listed on 24 October 1996 and could not unhappily be heard at all on that date and so the parties were put to the inconvenience of an adjournment, through no fault of their own. On 27 November the matter was restored. The first thing that happened was that the Respondents, as they were, the employers, produced a substantial bundle of documents which they wished to refer to. The employee, by his Counsel, said he wanted time to look at that and was told by Mrs Henthorn, who appeared there for the employers, that it had taken her only twenty minutes to master the documents.

When the hearing began, it was objected by the employee, through his Counsel, that in fact the bundle of documents was in chaotic order and the Industrial Tribunal quickly reached the conclusion that that was unfortunately the case. Though they had heard the evidence of one of the employer's witnesses, the Operations Manager, Mr Miekel, they thought it right to adjourn so that the bundle could be put in order. We are told by Mrs Henthorn, and of course accept, that the Tribunal also indicated that other documents might be necessary and that further documents should be produced.

A further date was fixed there and then; 20 December when everybody could attend, as the Industrial Tribunal was told. Apparently when the employers got back to their office, it appeared that two important witnesses, their Directors, had, so it is said, had arrangements made for them to travel to Ireland on business on or about 20 December.

The matter came back before the Industrial Tribunal on 20 December and then the employers, by their Counsel, told the Tribunal that they were there only to ask for an adjournment. The Tribunal heard the application and decided to refuse it for reasons which they gave. Mrs Henthorn had nothing further to say, the application having been refused, and left the hearing.

The Tribunal heard the Applicant, Mr Byrne, and he gave them an explanation of how the various matters against him had arisen. They were all based on a misapprehension. He was able to explain in each case to the Tribunal how that misapprehension had apparently arisen. The Tribunal listened to that and was entirely satisfied. They accepted all that Mr Byrne told them. They were satisfied that there was no question of dishonesty; that he had done nothing to deserve dismissal; and they held, therefore, that his dismissal was unfair. They further accepted his account of the procedural aspects; he had endeavoured to explain these matters to the Personnel Manager, who had not given evidence to the Tribunal, and it appeared that she had been quite unable to understand what he was saying. They found that the way in which he was treated, being summarily dismissed on the same date by an officer who had not even understood what he had to say, was plainly unfair.

On the face of it, those findings are justified by everything that the Tribunal says. We have heard some criticism from Mrs Henthorn today of those findings and the way in which they were reached. There is no manifest error in them whatever, that we can see. Nor is there any error in what they went on to do, which was to award compensation and to award costs because they thought that the employers had behaved unreasonably.

We are unable now to hear Mrs Henthorn criticise those matters, for the short and simple reason that the employers, not having attended, had not taken these points in front of the Industrial Tribunal and therefore it is quite plain that we cannot entertain any suggestion that the Tribunal should have taken a different view of the facts or reached different conclusions in law. As we say, it appears to us that the finding of the Industrial Tribunal was in every way justified and lawfully arrived at. So that brings us back to the question of the adjournment. We have to see whether it is fairly arguable that the Industrial Tribunal, in refusing the adjournment, acted unreasonably in the legal sense, "Wednesbury unreasonable" as it is sometimes called. That is to say that they acted in a way which no reasonable Tribunal, correctly directing itself on the facts, could properly and legally have proceeded. That is a heavy burden, of course, on the Appellant who alleges that.

The Tribunal, as was agreed by Mrs Henthorn, had to weigh the interests of justice in getting on with cases because "justice delayed is justice denied" only too often. They had to weigh up the interests of the party who was not asking for an adjournment. They had to consider the fact that there had already been two adjournments - one of them at least occasioned through the default of the employers. There is no indication that they did not weigh those matters. They also had to weigh the very curious circumstances surrounding this case. They set those out in their judgment. They were told that there had been a letter of 8 November 1996 in which, amongst other things, the employers said that it was necessary to have a further adjournment. They had never received that letter and what made it all the more curious, they said, was that when Counsel attended before them at the hearing on 27 November, nothing was said about the necessity for an adjournment; on the contrary, everything was ready to go ahead, said Counsel. So they did go ahead and, as I say, they found that the bundle was in a chaotic state and they thought it right to adjourn, having heard Mr Miekel. They were told on 20 December that there had been a letter which was written only two days after their previous hearing, in which it was explained that although the hearing date had been fixed, nonetheless it was impossible because the two Directors were out of the country and that had been arranged, unknown to them, when they agreed this further date: the Tribunal say that they had not received that letter either. It was alleged that copies of these two letters, which they had not received, were faxed to them on 6 December. They had not received that fax either, and although a bundle was put before them containing these documents, as Mrs Henthorn has told us today, there was no log or other record of the despatch of the fax and it merely rested on the, so to speak, "say-so" of the employers that this had happened.

The Industrial Tribunal, saying that such a chapter of accidents was outside the experience of any of them, obviously took a view of that which was not wholly favourable. They clearly weighed up the other matters and they decided to proceed. They had, as I say, to regard the interests of the Applicant, Mr Byrne, as well as those of the employers. They were entitled to say to themselves "if there were any merit in this application to adjourn yet again, why have we not been shown the statements of the absent directors?" and "why is this application being made at all on the basis that it is necessary to have a lot more documents? What is of importance is whether on 1 July these employers had properly got their case in order and had proper material for dismissing Mr Byrne on that date. If they did have, there is no earthly reason why they should not lay just that material in front of us today." On the contrary, Counsel told them that her instructions were to take no part in the hearing; not to put any statements to them; not to lay any documents in front of them; not to call the Personnel Manager, who had taken the decision to dismiss and had interviewed Mr Byrne. What were they to make of that?

All we can say is that we can intervene only if there is an error of law. We should have been extremely surprised had this Industrial Tribunal, in all those circumstances, felt able to grant the application for an adjournment. It would have been an extraordinary thing to do. It is suggested to us that they could have said "we grant the adjournment on condition that the employers pay the costs thrown away by it." That seems to us to be a very doubtful thing, unless of course it was offered, and ordered by consent. If Mrs Henthorn had started by saying "now I realise this is going to cost everybody money, my instructions are to offer to pay all the costs thrown away" then the Industrial Tribunal might very well have had jurisdiction to make such an order by consent. But otherwise they could only do so if they were satisfied that the behaviour of the employers in applying for the adjournment was unreasonable, vexatious or otherwise improper, and of course if they were of that opinion then they would inevitably feel obliged to dismiss the application for an adjournment.

Looking at it in the round, the employers had had by now 5 months to get their case together. They had not got it together. In one way and another, they had had plenty of time, and the excuses for their non-attendance and their inability to take part in the hearing were quite clearly not such as to weigh heavily with the Industrial Tribunal. We think the Tribunal were fully entitled to take the view which they did. It follows that having arrived at a perfectly rational conclusion, if we may respectfully say so, without the assistance of the employers, they reached a decision which is beyond criticism by employers who chose deliberately not to play any part in the adjudication after the hearing in November. In those circumstances the appeal is, with all respect, quite hopeless. and it is therefore our duty to dismiss it at this stage.