United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	JOHN MACKRELL Representative 91 The Meadows Lyndhurse Hampshire
For the Respondent	MR R MACKAY Solicitor MESSRS MACKAY SIMON Solicitors 58 Queen Street Edinburgh EH2 3NS


 


THE HONOURABLE MR JUSTICE MORISON (PRESIDENT): This hearing is a meeting for directions to determine what should now happen in relation to Mrs Woodgate's appeal against her former employers, Courage Limited.

The appeal came before the Employment Appeal Tribunal, presided over by His Honour, Judge Clark, on 20 October 1998. The court identified the question at issue which should proceed to a full hearing, namely, whether the Employment Tribunal erred in law in failing properly to consider whether on their own findings of fact the Respondent was in fundamental breach of the implied term of the contract, more particularly identified in a case referred to as McConnell, whose full title is W A Gould Permac Limited v McConnell (1995) IRLR, 516.

For the determination of the appeal, the court ordered the Chairman to provide notes of the evidence given by one of the employer's witnesses in cross-examination relating to delays in his investigations, if any, between 4 March to 8 May 1996, and secondly evidence given by the same witness regarding the extent of his investigation, if any, of the facts complained of by the Appellant in her letters of 27 February and 23 March 1996. Pursuant to that order, notes of evidence had been produced by the learned Chairman, for which we are grateful. Mr Mackrell wonders whether firstly, those notes are his complete notes in relation to the relevant issues.

It seems to us that in the absence of any evidence to the contrary, that we should assume that the Tribunal has properly carried out its duties in relation to providing us with the notes of evidence. A legally qualified Chairman is required not only to prepare the written decision in a case such as this, but also to keep a proper record of the proceedings and the notes of evidence are evidence of the record which is kept. I am not prepared to order that the Chairman be asked any further questions about the sufficiency of his note or whether has fully produced it because I assume that he has acted in accordance with this duty.

Mr Mackrell is concerned because he believes that during the course of the evidence he obtained a certain of number of answers from Mr Jackson in cross-examination, that being the Respondent's witness, which showed effectively that no proper investigation had been carried out by the company of what his daughter was saying, and that there were certain, what he would recall admissions made which were in his view were made by Mr Jackson in the course of evidence but which are not recorded in the Chairman's notes.

It seems to us that the way the thing works, so far as this appeal court is concerned, is that the Chairman keeps the record and that is the record of the proceedings, it is to be assumed that they are correct. It would be intolerable if that were not so because each party might produce a further conflicting note of their own as to what they thought a witness had or had not said, and it would be really quite impossible for the Employment Appeal Tribunal to determine which note reflected best the evidence given by a witness. I am not therefore able to accede to Mr Mackrell's request, which is as I say relates to the absence in the notes of reference to that part of the evidence he says if significant and important. This appeal will have to be dealt with on the basis of the Employment Tribunal's decision which was arrived at at the Preliminary Hearing and on the basis of the notes of evidence which have been produced.

It is plain from the judgment of the EAT on 20 October 1998 that there is an arguable point of law which should be considered at that hearing. Whether the notes of evidence will be helpful at resolving that issue is another matter, but if the notes of evidence do need to be referred to it will be the Chairman's notes of evidence and nobody else's. Accordingly this application must be refused, but I should say to Mr Mackrell that I am grateful to him for the pleasant and modest way in which he put his submission to me this morning.