United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR ANTHONY SENDALL (of Counsel) Messrs Halliwell Landau Solicitors St James Court Brown Street Manchester M2 2JF
For the Respondent	MR SINCLAIR CRAMSIE (of Counsel) Messrs Owen White & Catlin Solicitors Gavel House 90-92 High Street Feltham Middlesex TW13 4ES


 


JUDGE PETER CLARK:

1. The applicant, Mr Khan, commenced these proceedings against his former employer, the respondent Ladbrokes Racing Ltd ('Ladbrokes') by an Originating Application complaining of unfair dismissal and presented to the London (North) Employment Tribunal on 8th January 1999. With that complaint he attached a Statement setting out his case. He had been employed by Ladbrokes as an engineer from 16th January 1995 until his dismissal effective on 13th October 1998. As a result of back problems, which began in early 1997, he was no longer fit to perform the heavy lifting involved in the work of an engineer. It was part of his case, set out at paragraph 14 of his Statement that:

"I applied for the jobs of security and network administrator, help desk operator and desktop maintenance analyst, and although Ladbrokes will say I was considered for these positions, given my back condition there was never going to be any opportunity for me to obtain a full time job, and when I declined the offer of the temporary position I was dismissed."

2. The claim was resisted by Ladbrokes. Their case was set out in some detail in a six page reply. In summary they contended that the applicant had been fairly dismissed on grounds of incapability; they had considered him for alternative employment but no suitable alternative employment was available for him.
3. The matter came before a tribunal sitting on 10th and 11th June 1999, chaired by Mr C A Carstairs. By a decision with extended reasons promulgated on 5th July 1999 ('the original decision') the tribunal upheld his complaint. The critical finding of fact was that among other unsuitable jobs for which he was interviewed, the applicant was also interviewed by a Mr Pearson for the post of Desk Top Maintenance Analyst ('the DTMA post'). The applicant was unsuccessful in that application. The tribunal had no evidence before it as to why he was unsuccessful (reasons - paragraph 10).
4. In their conclusions the tribunal accepted that the applicant was dismissed for a potentially fair reason, capability. In respect of two posts for which he was interviewed Ladbrokes were entitled to conclude that he was unsuited. He did not have the necessary skills or experience. However, they took a different view in respect of the DTMA post. At paragraph 19 they said this:

"However the position relating to the desk top maintenance post is different. The Tribunal knows that the Applicant was interviewed for that post but has no evidence as to why the Applicant was not selected. The Tribunal noted the suggestion that the Applicant did not have the necessary previous experience. On the other hand the Tribunal has also had regard to the other two job descriptions in bundle A2 relating to the other posts for which the Applicant had applied which also required experience which it did not appear the Applicant had and yet he was interviewed for those posts. As indicated above, the Tribunal accepted that the Applicant had 'familiarity' with the majority of the appropriate software referred to in the job description. Accordingly the Tribunal is left in the position that the Applicant appears to have been entitled to be interviewed for the post and was interviewed for the post but the Tribunal has no idea why he was not selected for that position which, it appears to the Tribunal, the Applicant could have filled. Accordingly the Tribunal has concluded that the respondent did not act reasonably in dismissing the Applicant for capability having regard to the fact that he had applied for but was not offered the position of Desk Top Maintenance Analyst. In those circumstances the Tribunal has concluded that the dismissal was unfair."

5. They then went on to deal with remedies and awarded the maximum compensatory award permitted by statute of £12,000 together with a basic award of £990.
6. Following promulgation of the original decision Ladbrokes applied for a review of that decision by a letter dated 16th July 1999 from Mr Scott, their Divisional Employee Relations Manager, who had signed the Notice of Appearance and conducted the case for Ladbrokes before the tribunal on 10th and 11th June.
7. The basis of the review application was that new evidence had come to light since the original hearing in the form of a statement taken from Mr Pearson and dated 16th July 1999. A copy of that statement was served with the application.
8. It was said that Ladbrokes were taken by surprise when the applicant named Mr Pearson as the person who had interviewed him for the post. That had only emerged on the second day of hearing. Mr Pearson had left Ladbrokes and could not be contacted.
9. Mr Scott concluded his letter:

"The Respondents also submit that there should be a review in the interests of justice. The above relates to the substantive Decision given by the Tribunal; however, the evidence contained in the enclosed Statement of Evidence would also go to remedy with regard to what is just and equitable."

10. Mr Pearson said in his statement that he had become the Desktop Infrastructure Manager in August 1995. In early 1998 he had a vacancy for a DTMA. He was told by the applicant's manager, Mr Colfer, of the applicant's interest in the post. He subsequently saw the applicant, although he did not formally interview him, in early 1998. He described their discussion as being of an exploratory nature. He quickly formed the view that the applicant was not suitable for the post due to his lack of knowledge, familiarly and experience. Following that informal discussion Mr Pearson informed Mr Colfer that he could easily tell that the applicant was not suited for the post. Mr Colfer said he would pass that on to the applicant.
11. No more was heard from the applicant and in the event Mr Pearson never actually filled the post. He said that he had subsequently been informed that following a reorganisation the post was scrapped.
12. The Chairman, Mr Carstairs, considered that application for review and by a decision with extended reasons promulgated on 3rd August 1999 ('the review decision'), he summarily dismissed the application under Rule 11(5) of the Employment Tribunal Rules of Procedure.
13. The Chairman took the view that the evidence of Mr Pearson could have been reasonably known of or foreseen at the time of the original hearing, because:

(1) The applicant had referred to his having applied for the post in his Originating Application (see paragraph 14 of his Statement set out above).

(2) Mr Scott had informed the tribunal that it was known that Mr Pearson's position covered that of the DTMA post.

(3) On the first day of the hearing the applicant gave evidence that he had been interviewed for the post by Mr A Smith. On the second day he changed that to Mr Pearson.

(4) No explanation was provided as to why no statement had been obtained from Mr Pearson prior to the hearing. He had apparently left Ladbrokes in October 1998.

14. In these circumstances the application for review under Rule 11(1)(d), the new evidence rule, failed.
15. An alternative ground, the interests of justice under Rule 11(1)(e) did not assist Ladbrokes. By reference to cases of Flint v Eastern Electricity Board [1975] ICR 395 and General Council of British Shipping v Deria [1985] ICR 198, the Chairman concluded that Ladbrokes were seeking a second bite of the cherry. He referred to the principle of finality of proceedings.
16. We note also that the Chairman referred to Mr Pearson's final observation that he had been told that the post had been scrapped. The Chairman observed that that was evidence that must have been available to Ladbrokes, the obvious inference being that Mr Pearson had been informed of that fact by a serving officer of Ladbrokes when he made his statement in July 1999.
17. At that stage Mr Scott handed the conduct of the matter over to solicitors, who entered a Notice of Appeal against both the original decision and the review decision on 11th August 1999.
18. At a preliminary hearing held before a division presided over by Judge Pugsley on 23rd November 1999 the appeal was permitted to proceed to this full hearing. No application was then made for the Chairman's Notes of Evidence, and consequently no such direction was given.
19. The full appeal came on for hearing before this division on 17th July 2000. On that occasion it became clear during the course of Mr Sendall's opening submissions that certain notes of evidence were required in order properly to consider the appeal. Consequently we gave a direction for Chairman Notes on terms as to payment of the applicant's costs thrown away. Those notes are now before us.
20. The particular point arising from the notes is this. It is common ground that on the second day of the hearing before the tribunal, following the tribunal's oral decision on liability, Ms Balsdon was recalled and gave some evidence about the DTMA post during the remedies part of the hearing. The difficulty is that the note taken by the Chairman of her evidence on the second day does not advert to that matter at all.

The submissions

21. In this appeal Mr Sendall challenges the tribunal's decision as to both liability and remedies and the Chairman's decision to dismiss the review application under Rule 11(5) without a review hearing taking place before the full panel. In order to consider the rival contentions it is convenient to approach the matter in these stages:

(1) The liability decision

The crux of the tribunal's finding on liability was that there was no evidence from Ladbrokes to counter the applicant's evidence that he had applied for and been refused the DTMA post; had been interviewed for it by Mr Pearson; that he was able to do the job, but it was not offered to him. Consequently, the tribunal found the dismissal to be unfair on the single ground that Ladbrokes had acted unreasonably in failing to offer the applicant that alternative post.

It seems to us that on the state of the evidence at the close of the liability hearing that was a permissible finding. In particular, there was then no evidence before the tribunal from Mr Pearson.

(2) The remedies hearing

It is a matter of some concern to us that although it is accepted between the parties that Ms Balsdon gave some evidence as to the deletion of the DTMA post, that is not recorded in the Chairman's Notes and formed no part of the tribunal's reasoning, although the applicant himself, we see, had given evidence on the first day of the hearing to the effect that he did not think anybody was appointed to the DTMA post but he might not be correct about that.

(3) The review decision

This is the nub of the appeal. Mr Sendall submits that:

(a) it was not clear from the IT1 Statement that it was the applicant's case that the unfairness of the dismissal lay in Ladbrokes' failure to offer him alternative employment in the form of the DTMA post.

(b) consequently Ladbrokes were not on notice at the start of the tribunal hearing on 10th June 1999 that Mr Pearson would be a necessary witness, he having by then left the company.

(c) the position was exacerbated by the applicant initially giving evidence on the first day that he had been interviewed for that post by Mr Smith, and then changed his evidence to name Mr Pearson on the second day.

(d) attempts at that stage to contact Mr Pearson failed. Had he been called his evidence might have had a significant effect on the outcome as to liability.

(e) on the second point, Ms Balsdon's evidence on being recalled that the DTMA post had been deleted in a reorganisation was not recorded by the Chairman, nor considered either at the remedies stage nor at the review application stage.

(f) in these circumstances the tribunal ought to have reviewed their liability decision at the remedies stage or, failing that

(g) at the very least the Chairman was bound to order a review hearing so that the full panel could consider whether to admit Mr Pearson's evidence on review and then to reconsider their substantive decision, but

(h) instead, he decided the review application summarily by impermissibly finding that Ladbrokes ought to have foreseen before the substantive hearing that Mr Pearson's evidence would be necessary. That was a perverse conclusion which fatally undermines the decision to dismiss the review application under Rule 11(5), coupled with the Chairman's observation that Ladbrokes could have led evidence that the DTMA post was 'scrapped' (review decision reasons – paragraph 7). They did. It was the evidence of Ms Balsdon given when she was recalled but not recorded in the Chairman's notes. Those two errors mean, he submits, that the review decision ought to be set aside.

22. Mr Cramsie submits that the Chairman reached a permissible conclusion on the review application. Ladbrokes ought to have sought an adjournment of the liability hearing in order to call Mr Pearson. They failed to do so. The DTMA post had been mentioned in the IT1 Statement at paragraph 14. If the position was not clear then further particulars ought to have been sought. Mr Pearson was the manager responsible for that post; the Chairman was entitled to conclude that Mr Pearson's evidence could and should have been obtained in time for the hearing. As to the evidence of Ms Balsdon, we should be slow to speculate as to precisely what that evidence was in the absence of any note of it by the Chairman. The proper inference is that the Chairman and members did not regard that evidence as significant; indeed it did not feature in Mr Scott's closing submissions on remedy, recorded at paragraphs 23 and 24 of the tribunal's reasons for their original decision.

Conclusion

23. We shall allow this appeal against the Chairman's review decision. In our judgment, on the factual circumstances of the case, it was not open to the Chairman to conclude that Ladbrokes were on notice prior to the tribunal hearing that Mr Pearson's evidence would be needed. The question of suitable alternative employment was not clearly raised at paragraph 14 of the IT1 Statement of complaint. The problem was compounded by the applicant first saying in evidence that he had been interviewed by Mr Smith and then changing his evidence to name Mr Pearson on the second day. It was that finding which formed the basis of the Chairman's conclusion that Mr Pearson's evidence could not be admitted on review. Secondly, it is clear that the Chairman overlooked Ms Balsdon's evidence that the DTMA post had been deleted in the reorganisation when he found at paragraph 7 of his reasons for the review decision that was evidence which he considered ought to have been led by Ladbrokes at the original hearing. It was.
24. In these circumstances the question for us is whether the matter should be remitted to the same Employment Tribunal for a review hearing or, as Mr Sendall submits, whether we should set aside the original decision and remit the entire case to a fresh tribunal for rehearing.
25. The review procedure is designed to result in a speedy review by the tribunal which originally heard the matter, hence the 14 day time limit for review applications. That, it seems to us, is no longer possible, some 18 months now having elapsed since the original hearing. In these circumstances we have concluded that the appropriate course is for the case to be remitted to a fresh Employment Tribunal for a full hearing, that tribunal to be appointed by the Regional Chairman.
26. In view of our decision on that part of the appeal which concerns the review decision it is strictly unnecessary for us to determine the appeal against the liability and remedies decision, that is the original decision and consequently we make no order on that part of the appeal.