United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R PASHA (Solicitor) C R Traynor & Co Solicitors Liverpool L5 6SP


 


MR JUSTICE BELL: This is an employee's appeal against the decision of an Industrial Tribunal sitting in Liverpool, dated 14th November 1997, that he was not dismissed. This is an ex parte preliminary hearing in relation to the appeal and we have to ask ourselves whether there is any point arguable in the appeal, which is such as to justify the matter proceeding to a full hearing.

The grounds of appeal are that the Industrial Tribunal failed to consider relevant evidence, namely, the written statement of Mr Anthony Miveld, who was in fact the trainee solicitor who was representing the employee, Mr Mackay, at the Industrial Tribunal hearing. The grounds of appeal contend that the Industrial Tribunal failed to make findings of fact in relation to the contents of that statement.

The nub of the case was that Mr Mackay had been off work for some considerable time, unfortunately, due to the long continuing effects of an accident. The employer became more and more concerned about his apparent inability to return to work, and on 2nd July 1997 there was a meeting between Mr Mackay and a representative of the management of the employer. There was a conflict of evidence as to what was said between the two men at that vital meeting, but the Industrial Tribunal found that the employee told the employer that he would not be able to return to work because of the continuing effects of the accident, and the Industrial Tribunal preferred the evidence given on behalf of the employer to the effect that the employee accepted in those circumstances that his employment should end. The Industrial Tribunal went on to say that there was no evidence to support the employee's claim that he had in fact been dismissed at that meeting. A letter was written a day or two after the meeting which confirmed, in effect, the employer's account of what had passed.

We have been shown this morning the statement of Mr Miveld. It does not include any evidence as to what actually happened at the vital meeting on 2nd July 1997, and of course it could not do so because Mr Miveld was not there. It says that Mr Mackay had consulted him shortly before the meeting, with the meeting in mind, that he advised Mr Mackay that the employer would need obtain medical evidence before he could demonstrate that the contract of employment had been frustrated by the employee's medical inability to return to work, and that he advised Mr Mackay that he would have reasonable prospects of establishing that he had been unfairly dismissed if the employer terminated his contract without obtaining that medical evidence.

Mr Pasha arguing the matter before us today, says that was relevant evidence which the Industrial Tribunal should have taken account of, but it did not. The tribunal did not make any mention of the statement and had it done so, it should, or at least might, have reached a different conclusion about who was to be believed about what passed at the 2nd July 1997 meeting.

In our view the submissions made on behalf of Mr Mackay, very clearly by Mr Pasha to whom we are grateful, are completely untenable for these reasons. Firstly, if someone who is representing a litigant, whether it be at a tribunal or other more formal legal proceedings, wishes to put in evidence a statement in relation to matters of fact made by himself or herself, it is absolutely essential for the representative to make it absolutely clear to the tribunal that the statement is being put in as evidence, and not part of some submission which the representative is making or just part of material which might, for instance, be in a bundle of documents. We find ourselves quite unable to accept Mr Pasha's submission that it is for the Industrial Tribunal to take the initiative and ask the representative what the status of the witness statement, as the statement of Mr Miveld is headed, actually is. If the representative does not make the status of the statement or what he argues the status of the statement to be absolutely clear, then both the Industrial Tribunal and, perhaps even more importantly, the other side, may be left unaware as was clearly the case in this matter, that the material is being put in or that the representative is hoping to put it in as evidence.

The second matter is this. In any event, we cannot see how Mr Miveld's witness statement could possibly have effected the conclusion of this case; even if it had been treated as evidence. To say that particular advice has being given to a person, in this case Mr Mackay, cannot come anywhere near any kind of cogent evidence that that person ultimately in fact followed the advice which was given.

In any event, and this is third point which has moved us today, it was part of the employer's case that having written to Mr Mackay within a day or so giving its account of what had passed at the meeting, there was no comeback or challenge to the contents of the letter. That appears to be the position. Mr Miveld in his statement says that he did see Mr Mackay on Tuesday, 8th July 1997. Mr Mackay told Mr Miveld that he had been to see his Managing Director, Mr Bambery, on 2nd July 1997. He actually gave Mr Miveld the letter which had been written, which contained the sentence:

"We therefore agreed that your last day of service would be 2nd of July".

Mr Miveld's statement said that Mr Mackay told him that there had been no such agreement, but apparently absolutely no challenge to the contents of the letter was sent to the employer.

In these circumstances, we have come to the view that this appeal is hopeless. For all those reasons this appeal must be dismissed at this stage.