United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us as a preliminary hearing the appeal of Mr P.C. Stubbings in the matter P.C. Stubbings against the Ministry of Defence. As it is a preliminary hearing the Respondent does not appear in any case, but Mr Stubbings has recently written-in. He is in personal difficulties and asked whether the matter can be considered in his absence. So there is no one before us.

1. All we do at this stage is adjourn the preliminary hearing to obtain the Chairman's Comments on the procedure which was used at the hearing on 11 and 12 January 1999.
2. The Extended Reasons are unclear as to whether the hearing ran its ordinary full course. Paragraph 2 of the Extended Reasons says that the Tribunal "heard evidence on oath" from three witnesses, there described. They are not, in terms, described as all having been Applicant's witnesses, but it looks as if it might well have been the case.
3. Assuming that there was therefore no oral evidence received from the Respondent, it is noted that the Tribunal does not say whether it received, or considered, any written evidence on the Respondent's part. It does not say that it either had in mind, or put out of mind, the Respondent's written evidence, if there was Respondent's written evidence. Nor is it clear whether any of the Tribunal's findings derived from the Respondent's evidence. For example, in paragraph 8 there might have been evidence relied upon that said that the shifts of 12 hours were not unusual in the emergency services.
4. Another example of something that might be material and which might have been gleaned from the Respondent's evidence was the description in paragraph 5 as to WPS McKeown's personal circumstances, she being temporarily excused from and also later returning to ordinary shift patterns. That might have been evidence that was derived from something put in by the Respondent rather than something put in by the Appellant. If the case was that written evidence from the Respondent's side was relied upon, but without Mr Stubbings being given the opportunity to cross-examine, if he wished to challenge it, then there may have been (we only say may) have been a procedural irregularity and that, inter alia, is what the Appellant urges to be the case. In his skeleton he says, at paragraph 22(a):

"(a) That the Employment Tribunal having heard evidence put before it by the Appellant. In then allowing an application by the Respondent for the complaints before the Tribunal to be 'struck out' Subsequently denied the Appellant the opportunity to examine (on oath) any of the Respondent's evidence before the Tribunal. In doing so the Tribunal therefore failed to 'follow a procedure which was fair to both sides'." [and he relies upon a case called Bache v Essex County Council, and he gives a reference to that case].

5. The Tribunal's decision does not disclose any strike-out as such, but there may (and we cannot over-emphasise the word may) have been some procedural lapse. Rather than immediately allowing the matter to go to a full hearing here, which could prove to be quite unnecessary, we see the better course to be first to approach the Chairman, Mr D.N. Cowling, and invite him to assist the EAT by indicating a number of things.
6. Thus, firstly, whether any evidence of the Respondent's was laid before the Tribunal at the hearing of January 1999 and received into evidence.
7. Secondly, whether the Tribunal at any point relied on any such evidence (and we draw attention, in particular, to the two examples we have given of material that might have been derived from the Respondent's side).
8. Thirdly, whether Mr Stubbings indicated that he did not wish to cross-examine any of the evidence which the EAT had received from the Respondent.
9. Fourthly, whether the Tribunal indicated to Mr Stubbings that he was at liberty to cross-examine any evidence which the Tribunal had received from the Respondent, at all events unless the Tribunal indicated to him that it did not have that evidence in mind, or put it out of mind.
10. Fifthly, whether Mr Stubbings indicated that he did wish to cross-examine the Respondent's evidence and, if so what, if any, response was given to that indication. And, more generally, what other comments might the Chairman wish to make as to the procedural context to assist the EAT in its task, he being sent a transcript of this judgment and also a copy of Mr Stubbings' Notice of Appeal.
11. Once the Chairman's observations are available, then the preliminary hearing is to be restored. We would not wish to raise false hopes in Mr Stubbings' breast. At first blush we see no case at all for any arguable point of law in the main body of the case, but we do think it just first to investigate the procedural aspects of the case in the way that we have indicated and we adjourn the preliminary hearing for that purpose.