United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR C MORRISON (Solicitor) Messrs Goodman Derrick Solicitors 90 Fetter Lane London EC4A 1EQ
For the Respondent	NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE RESPONDENT


 


JUDGE J HULL QC: This is an appeal to us by a Company, Newsquest Ltd, proprietors of a newspaper publishing business; they have apparently a number of newspapers. The Respondent to the appeal, who does not appear today, is Mr Stephen Leslie Powers, who was employed, he being a man of 46 years of age, as Head of Operations at the Appellant's Bradford Headquarters.

Mr Powers was first employed, according to his IT1, on 3 August 1994, but he says he has given long service for a large number of years. It may be that the answer to that possible difficulty is that he has been employed by predecessor companies for a number of years. At any rate he was employed in a very responsible position, responsible for a substantial number of employees and operations.

In December 1996 (and I am taking all these facts from the papers; none of them, of course, is beyond argument, but they seem to emerge from the papers) the newspaper company which did own the business and employed Mr Powers was sold to the Appellant. Very shortly afterwards he was sent for, on 12 February 1997, by the Managing Director, Mr Blott, and was dismissed. At least, that is his account of it. He puts it as follows in his application to the Industrial Tribunal, having set out various matters, he said:

"During my holiday period in January the Managing Director also cancelled the company recognition agreement with the GPMU print union for no apparent good reason, and also amended my departmental budget without consultation to include twenty-four redundancies in 1997 in just one department."

And he told the Tribunal as follows:

"At 18.00 hours on the evening of February 12, 1997 I was summoned to the Managing Directors office to be told that I was to be made redundant and my position of Head of Operations was to be discontinued. No reasons were given for the discontinuation of my role. I was asked to leave the office then and not to return the following day or at any future date."

So that is what he says about it. We look to see what the Respondents say in their IT3. First of all I should say that in the IT1, the application to the Industrial Tribunal, Mr Powers complained of unfair redundancy, as he put it, and constructive dismissal, and he asked to be reinstated.

Pausing there, one would say that reinstatement of so important an executive would be a course about which the Tribunal would have to think very hard before they could recommend it, but it may be, if they find that the way in which he has been treated is unfair, peremptory and arbitrary, as he suggests, that they would make such a direction. Of course, they cannot insist on it, except in the matter of compensation, but they might very well say that he should be reinstated in all the circumstances.

The Respondents were not in time with their Answer, but it was eventually received. That is at page 7 of our bundle and we look to see what they say in answer to this circumstantial and, on the face of it, rather shocking, allegation of unfairness to a senior manager, summary dismissal. The Respondents say he was dismissed. It was for reasons of redundancy and then they give particulars, as I say, having taken more time than they should. The particulars go as follows:

"1. It is admitted and averred that the applicant was dismissed on the ground of redundancy, alternatively some other substantial reason justifying his dismissal."

What might that other substantial reason be for dismissing a high executive, who had given apparently long and satisfactory service, from his position in the circumstances which are outlined? What might it be? Might it be dishonesty, disloyalty, incompetence? What is that reason? Here, after having had plenty of time one would have thought to think about it, the Respondents simply say, "Some other substantial reason justifying his dismissal". Then they say, a negative pregnant, as it would be called by lawyers:

"2. It is denied that the procedure adopted by the respondent leading to the dismissal of applicant was unfair."

What procedure? To judge from what we have read there was no procedure, but it may be that there was a careful procedure. First that there was a warning; that there was a disciplinary hearing; that there were representations received. Nothing of that is said. Why not?

Then finally, at paragraph 3:

"3. If which is denied the applicant's dismissal was unfair by reason of the procedure adopted, the respondent will say that in all the circumstances of the case and having regard to the applicant's own conduct, any compensation to which the applicant would otherwise have been entitled should be reduced to nil or such other figure as the Tribunal thinks fit."

What are these circumstances? What is this conduct? Where are the particulars that this company, represented by famous Solicitors, wants to put forward in support of, apparently, a summary dismissal of a high long serving official? Not one word, so far as we know. So that is the case put forward, out of time, by this company.

Then we come, that having been received by the Tribunal, to the Notice of Hearing. That was sent on 23 June: the hearing was to be on 4 August. One is very pleased to see, in circumstances where Tribunals are grossly overcrowded with applications, some of them very long and difficult, that it was possible to give this senior official's application for reinstatement enough priority, perhaps through a sudden vacation of the date, for it to be heard on 4 August. So the Tribunal was either putting itself out very much, or else providentially an early date was available. That is what they said, it was to be on 4 August, and outlined twice in black:

"Unless there are wholly exceptional circumstances, no application for postponement due to non-availability of witnesses or for other reasons will be entertained if it is received more than 14 days after the date of this notice."

That was what was sent and the Applicant was therefore entitled to suppose that, in his unhappy situation, he would at any rate be fairly promptly heard. Then, not within the 10 days, but on 15 July an application was made to the Office of the Industrial Tribunals from the Solicitors, who (as I say) are well known Solicitors accustomed to litigation in all its forms, I am quite sure.

The Solicitors say:

"We have now completed our preparations for the hearing and regret to have to inform you that our principal witness will not be available on the day fixed due to holiday commitments. We should in the circumstances be obliged if the Chairman would consent to an adjournment as it is now clear to us that we cannot present our client's case without this witness, Mr Blott."

That, on the face of it, is a quite breathtaking application. We are not told that Mr Blott's holiday arrangements had been made at the last moment. If they had, he was absolutely reckless to do so. We assume they were of long standing. We assume that, as Managing Director of the company, he would have made quite plain to the Solicitors what his arrangements were. How is it that these Solicitors only now become aware that they cannot call the principal witness? It appears that Mr Blott is going off on holiday on 2 August with his family - of course, an entirely blameless and sensible arrangement, but one asks oneself, how can that compare with the needs of Mr Powers? - he it is who has lost his job, apparently being dismissed out of hand. The Managing Director thought he would put in a different executive to do his work, and he was just told to get out there and then, on returning from his holiday in February. Now, in June, a case is put forward, utterly unparticularised, that his conduct is such that he ought not to receive a penny in compensation in the circumstances of the case and there was a procedure adopted which was fair. No particulars whatever were given and now: "Oh well, the Managing Director, who will speak to all this, and the only person who can speak to all this, is going off on holiday and the hearing is two days after he is going off on holiday".

So now there is an appeal to us. One can only say, first and foremost, that we must look to see what was said by the Tribunal. The Tribunal said, "We refuse this". The Tribunal Chairman caused to be written the letter dated 18 July, on page 4:

"You were given adequate time to check the availability of your principal witness. The notice of hearing was sent on 23 June 1997 and contains a clear statement as to your responsibilities should you need a postponement. It is unreasonable to expect the applicant, who is seeking reinstatement, to suffer delay by your tardiness in attending to your responsibilities. Your request for a postponement of the hearing is refused."

Now that is criticised. It is a very short statement and it only gives one or two reasons for refusing the application. We do not think that a Chairman, in this situation, where an application is made by letter, is bound to set out the needs of justice, the convenience of the Tribunal, the careful weighing of competing interests. The fact is that, when a date has been fixed before Tribunals, who (as I say) are grossly overcrowded with applications, that date, unless something quite unexpected appears, is to be kept. The needs of justice must take precedence over anything but other very pressing needs. Certainly, they should take precedence over holidays. There is nothing that we can see to prevent Mr Blott flying out on a scheduled flight, or on a chartered flight, if he can get on one, some days later than his family, and joining his family and taking part in the rest of the holiday with them. To say that Mr Blott's holiday should take precedence over Mr Power's needs in the circumstances is a very bold thing to say, but having said all that, we must look to see how we are to deal with the Chairman's decision. It is a decision for the Chairman. It is an interlocutory decision. It is the responsibility of the Tribunal and not our responsibility to make sure that this case is fairly and promptly tried, as promptly as can be.

In those circumstances, we are quite unable to put our discretion in the place of that of the Chairman. All we can do is to see whether there is an error of law - that is to say, perversity or some error of law in what is said. We cannot find any such error. It is clear to us that this case should be tried as soon as possible. We do not say that we have no sympathy with a person who wishes to go on holiday with his family. That is obviously not the case. But what we do say is that the Chairman was perfectly entitled to reach the decision which he did and we should have been surprised had he reached any other decision in all the circumstances of the case. We think we have said enough about that.

This application is, in our view, entirely insupportable. It might very well result in Mr Powers' application to the Tribunal being deferred by many months and might result in very serious prejudice to him indeed. These are, no doubt, some of the matters which have gone through the Chairman's mind. However that may be, we are not going to interfere with this decision.

We regret the inconvenience to Mr Blott, but that is a matter which is, in our view, of very little importance compared with the interests of justice and of the Applicant and we hope that an opportunity will be taken, even at this late date, to make it quite plain what the case for the employers is, so that Mr Powers is not taken by surprise and ambushed at the hearing by a case which at the moment is grossly unparticularised.

That is the decision of us all and those are the reasons of us all.