United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A UNDERWOOD (of Counsel) Manches & Co Solicitors 81 Aldwych London WC2B 4RP


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which Unwins Ltd wish to advance against a decision of an Industrial Tribunal held on 2nd May 1997 at Brighton. That tribunal was required to adjudicate on Mr Bull's application for unfair dismissal, and by a unanimous written decision, which was sent to the parties on 9th July 1997, the tribunal upheld the applicant's complaint.

Mr Bull had worked for Unwins for some time. He had had an unpleasant experience in October 1994 whilst working at their Dyke Road branch in Brighton, when the shop was raided by a man with a shotgun. He had various moves between stores following that incident. Clearly, the Company recognised that he was greatly shaken up by what had happened, and the distress that had been caused to him and his family who were adjacent to the premises in question.

On 5th February 1997, in the evening, the shop where he was then working was again raided by somebody who was carrying a handgun and a device for spraying CS Gas, which was sprayed, and which apparently went into one of his eyes. Mr Bull was taken to hospital and kept in overnight for observation. This, on top of the earlier incident, was obviously of shocking proportions to him.

The tribunal had to find out why it was that Mr Bull had left his employment and resigned, as indeed he did, and to ask themselves whether his resignation was because the Company had broken an important term of his contract of employment. In the end they concluded that the reason why Mr Bull resigned was because it was the attitude taken by Mr Davidson, on behalf of Unwins, a director of Unwins Management Services, to the security of the premises, and what the Company was prepared to do in the future.

The tribunal therefore regarded it as of prime importance to ascertain precisely what was said on that topic at a meeting which took place between Mr and Mrs Bull and Mr Davidson shortly after the second incident. The issue of fact between the parties boiled down to this: the Bulls were saying on the one hand that Mr Davidson had offered to put in a camera, but only for a limited period such as a week. It was Mr Davidson's case that he was prepared to put in a camera without limitation in time. The tribunal preferred to accept the Bull's evidence having heard all the witnesses giving their evidence. They had noted that Mr Davidson had a dogmatic opposition, as they described it, to security cameras as an aid to the safety of their employees. They also noted that he had come to the conclusion, for reasons which the tribunal were prepared to accept, that panic patterns were nasty dangerous devices. They had regard to the fact that Mr Davidson explained that it would not make any economic sense to install a security camera for just a week, which he says would suggest that the Bull's recollection was not correct. But he was positive in his evidence that the Bulls must have been lying when they were contending, as they did, that he only offered a security camera for 14 days or so.

This issue of fact was of course for the tribunal to decide. We are an appellate body which can only hear appeals on questions of law.

It is suggested by Mr Underwood of Counsel, that there is an issue of law arising out of the following passage in the tribunal's decision:

"13. ... The Tribunal felt that there was merit in Mr Davidson's argument about the practicalities of putting a camera in for a week only but they also were faced by the fact that the respondent's representative had not cross-examined Mr or Mrs Bull with regard to this conversation and while the failure to cross-examine does not mean that the evidence must be accepted as true the Tribunal is entitled to draw a deduction from the failure of a professional advocate to challenge evidence in chief. Failure to cross-examine a witness on some material part of his evidence may be treated as an admission of the truth of that part of his evidence. In this case the balance between the evidence of Mr and Mrs Bull and Mr Davidson appeared to the Tribunal to be very even but the Tribunal finds that the failure to cross-examine enables it reasonably to come to the conclusion on the balance of probability that the evidence of Mr and Mrs Bull is correct."

What Mr Underwood says is that the crucial factor in the tribunal's decision therefore was the fact that the Bull's evidence had not been challenged by the solicitor who was representing the Company. We have been shown a witness statement from Mr Davidson which asserts that following the incident, he had offered a security camera, but it was rejected. So, says Counsel, it was unfair of the tribunal to place any weight on the fact that there was a failure by the solicitor to challenge the Bull's evidence. He also says, quite rightly, that Industrial Tribunals are operating in a relatively informal way with a degree of flexibility as to the admissibility of evidence which may not apply in a normal court of law, and that by taking 'not put' points, a tribunal is in danger of making their procedure something different from what it was intended to be.

It seems to us on the other hand, that Mr Underwood is in fact concentrating over much on one particular point or factor which, in our judgment, the Industrial Tribunal was entitled to take into account. The fact that the witness statement contains the passage to which I have referred, may not, of itself, negative the drawing of an unfavourable inference from a failure to cross-examine on a material part of the evidence. It is common experience that on occasions people who have made witness statements, after they have had the opportunity of hearing the other side, accept what has been said, even if it modifies or is contrary to what they have said in their written statement. It seems to us that the tribunal was best placed to decide whether in the circumstances a 'not put' point was a fair one or not. They had noted that Mr Davidson was dogmatically opposed to security cameras, and were, in our judgment, entitled to reach the conclusion, having heard what Mr and Mrs Bull had got to say, that the Company did less than in the tribunal's judgment it should have done to put the Bull's minds at rest after this second shocking incident. It appeared that this decision was a well-reasoned decision of an Industrial Tribunal, fair to both parties and carefully weighing the evidence. We note in passing, that they paid particular tribute to the care and conscientiousness of Mr Corcoran who was the applicant's manager, and the way that he reacted after the incident took place.

This is a well-balanced decision. We are not persuaded that there is any arguable point of law. We think that over much is being made of the failure to cross-examine. That was a feature of the decision, but was not, in our view, anything like as important as the judgment which had to be made of the witnesses themselves. Accordingly, we are satisfied that there is no arguable point of law in this appeal and it will be dismissed.