United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P WALLINGTON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE CHARLES: The parties to this appeal are a Mr Gregory, who was the Applicant in the Industrial Tribunal and is the Appellant and BHS Plc, the Respondent.

Mr Gregory has appealed against a decision of the Industrial Tribunal contained in Extended Reasons dated 8 July 1998. The Chairman of that Tribunal refused to review that decision. His reasons for refusing that review are set out in a decision dated 27 July 1998. Those reasons clearly reflect the approach of the Tribunal that the Respondent's only reason for dismissing Mr Gregory was that he, on his own admission, gave a misleading reference in respect of Miss Bailey and thus that the issue in the Tribunal was whether, in the circumstances, dismissal for that offence was within the band of possible responses of a reasonable employer.

Mr Gregory was represented before us by Mr P. Wallington under the ELAAS scheme. He explained to us that Mr Gregory was unable to be present because he was engaged in moving house. Mr Wallington had however spoken to Mr Gregory who was content that he should represent him before us. Mr Wallington confirmed to us that Mr Gregory wished to pursue his appeal.

The matter comes before us on a preliminary hearing and we therefore have to consider whether a reasonably arguable point of law has been raised by this appeal.

In our judgment it has. We are of this view because if it had been established that there was more than one reason for the dismissal, there would have been an arguable case as to whether or not the dismissal was then fair or unfair and it seems clear on the documents before us that the Chairman indicated before having heard any evidence from the employer that there was one, and only one reason for the dismissal. This assertion of the Chairman is not in line, or in total line, with the response of the employer contained in its Notice of Appearance.

Secondly, we will, although we have greater doubt about it, also permit the Notice of Appeal to contain a ground that insufficient reasons were given as to why the decision of the employer was a reasonable one, even if the primary, or only, reason was the giving of the reference. But we wish to make it clear that the principal reason we are permitting this appeal to go forward is that we accept that it is reasonably arguable that the issue as to what the reason, or reasons, for the dismissal was, or were, was not adequately investigated before the Tribunal and therefore there were inadequate findings as to that by the Tribunal.

So far as directions are concerned this is a Category C case.

In their PHD form the Respondents ask for the notes of the evidence of identified witnesses. We are at present unpersuaded that notes of evidence are necessary, the reason being that it seems to be common ground that Mr Gregory was prevented from giving evidence, which could form the proper subject matter of cross-examination of the later witnesses as to the reason, or reasons for the dismissal. Subject to what we say later we direct that the Respondents should write to Mr Gregory indicating what they say the evidence of the witnesses they have identified contained and inviting him to agree whether or not he accepts that this is an accurate summary of their evidence. If there is no agreement as to that then application will have to be made again for notes of evidence in the normal course.

However, we add that we are doubtful that notes of evidence would assist. As we understand it the Respondent seeks such notes to show that there was evidence before the Tribunal that the reason, and only reason, for the dismissal was the giving of the reference. But, on the assumption that this is the case, we are very doubtful that this would enable the Employment Appeal Tribunal to deal with this matter. This is because Mr Gregory was prevented from (a) giving evidence to the effect and (b) fully exploring in cross examination whether there were other reasons for his dismissal and therefore this factual issue was not fully investigated before the Tribunal. If, in the light of these observations, the Respondents decide that they do not wish to investigate with Mr Gregory whether the content of evidence given by the Respondents' witnesses can be agreed they need not do so, pursuant to the direction we have given earlier.