United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARTIN WESTGATE (of Counsel) Central London Community Law Centre 19 Whitcomb Street London WC2H 7HA
For the Respondents	MR ADRIAN ILES (of Counsel) Messrs Charles Russell Solicitors 8-10 New Fetter Lane London EC4A 1RS


 


MR JUSTICE BELL: This is an appeal by Mr Villaneuva against the decision of the London (North) Employment Tribunal promulgated with extended reasons on 12th January 1999 following a hearing held on 9th December 1998.

1. The appellant was employed by the respondent for just over 10 years from 18th January 1988 until the effective date of his dismissal on 15th May 1998. Following dismissal he presented an Originating Application on Form IT1 dated 12th August 1998 to the Employment Tribunal. In that application he raised four complaints: firstly, unfair dismissal, secondly, indirect race discrimination, thirdly, breach of contract and finally, failure to provide written reasons for dismissal. The application was clearly drafted with the assistance of professional advice. Form IT1 was accompanied by four closely typed pages, 28 paragraphs in all, of grounds setting out the appellant's factual case and asserting all four complaints. It was met by equally detailed Grounds of Resistance from the respondent, extending to five pages and 23 paragraphs.
2. The appellant who is Filipino appeared in person before the Employment Tribunal, although he had a friend there with him. The respondent was represented by counsel who called three witnesses. The appellant gave evidence himself by reference to a proof of evidence prepared by his adviser and at the end of the evidence he handed in written submissions also drafted by his adviser, dealing with all four heads of claim.
3. The essential factual background was that the appellant was employed by the respondent at the Sportsman Club and then at the Rendezvous Casino where he worked from 1990 to 1998. He was employed as a stillroom supervisor engaged in the preparation of hot and cold food and drinks. He was the longest serving stillroom employee. It was accepted that the appellant was employed as a stillroom supervisor. There was a dispute as to whether he was the only one or whether there were three holding that position. It was common ground that in about February 1998 the appellant was notified that the casino at which he worked would be relocated and the appellant's job would no longer exist. It was also common ground that the casino did in fact close in about May 1998. The appellant's case was that the same functions as before continued at a new location. That was denied by the respondent. The appellant's case was that he was put under pressure to accept an alternative position at a lower status and less pay and that he had to make a decision on 15th May 1998 to start on 18th May 1998. That morning he was told that his mother had died and he had to go to the Philippines for her funeral. He said that he would accept one of the positions, that of Prep Chef, but that he could not start on 18th May 1998 because he had to go to his mother's funeral. The employers were not prepared to allow him to delay his starting date and he was required to take redundancy.
4. The respondent's case put very shortly was that the appellant said that he did not want to take up any of the positions offered to him. He said that he was uncertain when he would return. He had decided to accept redundancy and to take his redundancy payment and wanted the money as soon as possible. He provided written confirmation of his acceptance of redundancy.
5. Comparing the case of the appellant with that of the respondent, there were a number of factual issues between the parties, but very broadly, so far as unfair dismissal was concerned, there was question of whether this was a redundancy situation and whether the appellant decided to accept redundancy and the resulting payment and so rejected the jobs on offer or was forced out by the respondents' refusal to give him the time off which he required.
6. The allegation of race discrimination depended upon his claim that he was not permitted reasonable time off to attend his mother's funeral in the Philippines and therefore, he would say, was treated less favourably because of his race or nationality or national origins, the national origins being out forward certainly by Mr Westgate today more strongly than the question of race, if indeed there was a question of race at all.
7. The claim of failure to provide written reasons for dismissal depended upon whether letters dated 15th May 1998 and 14th July 1998 amounted to written reasons for the purposes of the relevant statutory provisions.
8. The claim of breach of contract depended upon a claim that the respondents had failed to pay a bonus which was due to the appellant. That in turn depended upon whether it was a term of the appellant's contract that to be eligible he had to be employed by the respondent at the time the bonus was paid, namely on 28th June 1998 or, as Mr Westgate originally suggested this morning, that he was still employed when the earned bonus actually vested.
9. The appellant did not cross-examine the respondents' witnesses, although he was invited to do so by the Chairman. It appears that his friend did ask one or two questions of Mr Bradley, a main witness called on behalf of the respondent, on the question of whether he asked for and was refused time to go his mother's funeral in the Philippines.
10. In an affidavit, sworn on 27th June 1999, the appellant explained that he came from Manila but had lived in England since 1977. He said that English was not his first language. He learned English while at school in Manila. He would describe his ability to understand English as quite good, although he does not understand legal jargon. He remembered the Employment Tribunal hearing very well. He said that he went on his own, but as we have already indicated that cannot be right. He had no idea of what would happen and he did not really know what he was supposed to do. He had not been provided with witness statements of the respondent's witnesses in advance. He was not able to follow all that the witnesses were saying, partly because he was a little afraid of the courtroom but also because it was all too much to take in. He remembered the Chairman telling him that if he did not cross-examine the tribunal would makes its own decision. He believed that the Chairman knew best about such things. The Chairman did ask him a couple of times to cross-examine, but he did not know how to do this. His adviser had prepared a witness statement for him to read and he did that. He had also been given written submissions to give to the tribunal at the end of the evidence and he did that. His recollection is that the hearing began at about 10 a.m., and everything had been completed by 12 p.m.. The decision was given by the Chairman at approximately 1 p.m..
11. It appears from notes made by a representative of the respondent's solicitors that the Chairman did give the tribunal's decision on all four heads of claim and quite shortly explained why the tribunal had decided that none of the heads of claim could succeed. He prefaced that by saying that a written decision would be given in two or three weeks and after giving the decision and very short reasons orally, he said that the tribunal therefore rejected all the claims and that was to be explained by written decision.
12. We have a letter from the Chairman. In that letter, dated November 1999, he says that he has read the appellant's affidavit. Mr Iles in argument stressed the appellant's own statement that his ability to understand English was quite good but the Chairman, among other matters, said in his letter:

"It was clear I agree that the Applicant's command of English was poor."

The Chairman went on to say that nevertheless the tribunal paid close attention to the evidence and did ask some questions of some of the respondent's witnesses in order to establish the position. The letter continued:

"The case appeared to be a clear one on behalf of the Respondents. It seems to me that it is the duty of the parties to make sure that they attend the Tribunal properly represented or able to deal with the matters that are raised and that it creates an impossible situation if the Tribunal adjourns matters simply because parties arrive unable to understand English. It if then the duty of the Tribunal to help them which I am quite sure we did in this particular case."

13. The written decision of the tribunal was expressed in the following terms:

"The unanimous decision of the Tribunal is that the Applicant's claim is not made out and is dismissed. This decision is in extended form."

Then appears the usual heading when a decision is given in extended form, namely "Extended Reasons". The extended reasons run to four paragraphs taking just over one page of type. They deal only with the claim for unfair dismissal. Of course in some cases all that needs to be said can be said very shortly while making the reasons for the tribunal's decision and for preferring one party's case to that of the other absolutely clear. However, in this case paragraph 1 of the extended reasons is a very bare factual account of the background to the claim for unfair dismissal. Paragraph 2 reads:

"2 Evidence was given on behalf of the Respondents by three witnesses and the Applicant did not challenge the accuracy of this evidence although the Chairman warned him of the conclusions which the Tribunal might have to draw in the absence of any cross-examination by him which would cast doubt on that evidence. As the matter was not tested in cross-examination the Tribunal accepted the evidence which was given on behalf of the Respondents."

Paragraph 3 purports to describe the appellant's case. The paragraph extends to five lines and is not entirely accurate in such description as it does give of the appellant's case. Paragraph 4 is somewhat longer. It purports to set out the findings on the evidence. At one stage it declares that certain matters were clear from the evidence. It consists almost entirely of an account of the respondents' case on certain issues, thereby obviously indicating that that case was accepted. Paragraph 4 ends:

"We cannot see that there is anything to criticise in the way in which the Respondents carried out the tasks of consultation and selection presumably selection for redundancy] and consequently we find that the Applicant's claim fails and is dismissed."

14. Mr Westgate has today argued a number of grounds of appeal against the tribunal's decision. The first relates to the weight attached by the tribunal to the appellant's failure to cross-examine the respondents' witnesses and to what Mr Westgate contends was the tribunal's failure to test by cross-examination the evidence of the respondents' witnesses in circumstances where the appellant clearly felt unable to cross-examine and his friend only asked one or two questions. Mr Westgate's argument seems to us to boil down to a contention that where the tribunal's investigations of the issues cannot be carried out fairly without questioning to challenge and test the witnesses' evidence and it is apparent that one party is incapable of doing that, the tribunal must make appropriate enquiries by cross-examination itself. He referred us to Rule 9(1), Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, which reads as follows:

"The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to admissibility of evidence in proceedings before courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings."

Mr Westgate stresses the words "the tribunal shall make such enquiries of persons appearing before it and witnesses". He contends that the Rule imposes a positive obligation to adopt an inquisitorial role, especially where, as here, one party is disadvantaged in carrying out an inquisitorial role on his own account. He referred us to various authorities and to Article 6 of the European Convention on Human Rights and contended that the authorities and the Convention together pointed away from a restrictive meaning being put on Rule 9(1). Mr Westgate submitted that Rule 9(1) imposed a positive burden on the tribunal. The tribunal ought to be ready to achieve an even balance by probing the issues before it, even if that involved actual cross-examination of the witnesses of one party.

15. We agree with the contention of Mr Iles, on behalf of the respondents, that the express wording of Rule 9(1) gives the tribunal a very wide discretion to make such enquiries "as it considers appropriate" and to conduct the hearing "in such manner as it considers most appropriate for the clarification of the issues before it and generally for the just handling of the proceedings". He referred us to the case of Mensah v East Hertfordshire NHS Trust [1998] IRLR 531, as authority, admittedly in a rather different context, for the proposition that there is no duty on a tribunal to take over the conduct of an unrepresented applicant's case and to act as an advocate. In particular he pointed to paragraph 21 at page 535 of the report where Peter Gibson LJ, giving the leading judgment, approved what had been said in the case of Dimtsu v Westminster City Council [1991] IRLR 450, to the effect that no doubt should be cast "on the propriety of the long-established practice whereby chairmen of industrial tribunals give assistance where it is needed in the formulation and presentation of the cases of persons before them, be they applicant or respondent, who have not got the benefit of professional representation and indeed on some occasions when they have such representation, but this must be a matter for the judgment of the industrial tribunal in each individual case and should not be erected into an obligation which if not fully complied with leads to a conclusion that an error of law has been committed."
16. In our view Article 6 adds nothing to the domestic law on this particular point. The tribunal must do its best to achieve a hearing which is fair to both sides. We do not feel that we can give useful guidance as to the particular circumstances in which fairness may require the tribunal or its Chairman to test the evidence of one side's witnesses because the other side is incapable of doing so or of doing so in any effective or competent way. That must be left, in our view, to the judgment of the particular tribunal in the particular case. In making that judgment the tribunal will no doubt bear in mind any disability from which the disadvantaged party suffers, the nature of the issue and the evidence and, not least, the need to appear even-handed and not to appear to be cross-examining in a partisan way one side's witnesses as if the tribunal or the Chairman were the advocate for the other. In this case the tribunal did ask some questions of the respondents' witnesses. The issues in the case were many. Following up with the respondents' witnesses each of the issues or indeed any significant proportion of them, would, in our view, have risked the Chairman appearing to be partisan. We would not fault the tribunal or the Chairman in this case for not asking more questions of the respondents' witnesses than he did.
17. On the other hand, in our view, it is clear that it should not be held against an appellant such as Mr Villaneuva, who is less than fluent in English and might well have been overawed by the proceedings, that he did not cross-examine the respondents' witnesses even though invited to do so. That, in our view, would be quite wrong and unfair, unless it was clear, which is not suggested in this case, that he was desisting from cross-examination because he accepted the evidence in question. Of course lack of efficient cross-examination, or of any cross-examination at all, may mean that apparently credible evidence remains credible. There can be no criticism of such an approach by a tribunal to what happens in front of it, and Mr Iles contends that the tribunal in paragraph 2 of its extended reasons was stating no more than that obvious fact. He says that the last sentence in paragraph 2, which we have already quoted, must be interpreted in the light of what was said immediately before. The tribunal was saying no more than that credible evidence was unshaken by cross-examination.
18. We bear in mind the frequently expressed cautions against microscopic examination of an Employment Tribunal's reasons. We bear in mind that we must take paragraph 2 and any constituent part of it in the context of the whole of the decision, including the references in paragraph 4 to the tribunal considering the evidence before it, but we, and by that we mean each one of us individually and all three together, have come firmly to the conclusion that the proper and most obvious construction of paragraph 2 of the tribunal's extended reasons is that the tribunal accepted the evidence of the respondents' witnesses simply because the appellant did not cross-examine them. That is the only construction which we can put on the last sentence of paragraph 2 of the reasons, even bearing in mind what was said immediately before it and elsewhere in the extended reasons. If that is not the proper construction of the last sentence of paragraph 2, then that last sentence was ineptly drafted. At very least it appears to us that the Employment Tribunal erred in attaching far too much weight to the lack of cross-examination in this case. That was unfair to this appellant. We add that it may well have been unjust to the respondents, because there may well have been perfectly good reasons why the evidence of the respondents' witnesses should be preferred and indeed Mr Iles referred to some of those factors. But on this ground alone, we consider that this appeal must be allowed and the question of unfair dismissal, at least, be remitted to a fresh tribunal for adjudication.
19. The second ground of appeal depended upon the tribunal's failure to deal at all in its extended reasons with the appellant's claims of race discrimination, breach of contract and failure to provide written reasons for dismissal.
20. We heard an interesting argument on this point. Mr Westgate referred us to Rueben v London Borough of Brent [2000] IRLR 176, and particularly to paragraph 15 of the judgment of Morison J, then President of this tribunal, to the effect that appeals against the decisions of the Employment Tribunal can only be decided in relation to the promulgated decision of the Employment Tribunal. It is inappropriate, Mr Westgate submitted, to look at the notes of any oral reason which may have been given when those notes have been taken by one party only. He and Mr Iles referred us to Rules 10(2), (3), (4) and (9) in Schedule 1 of the 1993 Regulations. Mr Iles suggested that the omission to give a decision and reasons in respect of the discrimination claim, the claim to give failure to give written reasons and the claim of breach of contract, was a mere slip which could now be remedied under Rule 10(9). He contended that it is clear from Rules 10(2) and (3) that there is no time limit on the provision of extended reasons as required in this case in respect of the discrimination claim by Rule 10(4)(a) and in respect of the other claims by Rule 10(4)(d). He pointed out that there was a conflict of opinion of this Employment Appeal Tribunal with regard to giving an Employment Tribunal the opportunity to give further reasons. That conflict appears from the case of Rueben on the one hand and Yusuf v Aberplace [1984] ICR 850, on the other. He suggested that the circumstances of this case were closer to the facts of Butler v Buckinghamshire County Council and Wycombe District Council (Unreported decision of the EAT on 19th January 1998). In that case the Employment Tribunal had given a written decision and extended reasons on a claim for unfair dismissal, but omitted to do so in respect of claim for breach of contract. This tribunal pointed out that there was no time limit on the provision of written reasons and said that it would be unfair to a successful party to be put at the risk of a decision in its favour being nullified at some uncertain future date by reason simply of the omission of the tribunal for which the successful party could not be responsible and which it had no power to prevent: even more strongly so, Mr Iles suggested, in this case where the tribunal had given oral decisions and reasons in respect of the three heads of claim omitted from its written extended reasons.
21. We find that an interesting but difficult point. We do feel that it would be unrealistic to allow the tribunal to give written reasons has even if it felt able to do so on the three heads of claim omitted from the extended reasons, when we have expressed the views which we so far have on the merits of the appeal against the rejection of the appellant's case of unfair dismissal. But, in any event, Mr Iles accepts that even if he succeeded on his submissions on this ground, it would not help him, if we propose to allow the appeal and remit the matter for a new hearing on the first ground. Mr Westgate agrees that winning on this second ground would add nothing to his victory on the first ground. We therefore say no more about this second ground of appeal.
22. The third ground of appeal depends upon the argument that there was nothing in the evidence to support the tribunal's statement in paragraph 4 of its extended reasons that:

"We find that they [the respondents] would have been prepared to wait until the Applicant returned and then to continue exploration of the position to see if they could offer him a new job."

23. That ground, too, if successful, would not advance the appellant's case nor, if unsuccessful, would it avail the respondents in the light of the decision which we have made on the first ground.
24. However, Mr Iles did go on to argue that following what was said in the case of Dobie v Burns [1984] IRLR 329 and Bache v Essex County Council [2000] ICR 313 to the effect that there is no point in an appellate tribunal or court remitting a matter for hearing in respect of decision which are plainly right, we should not remit for hearing the claims in respect of alleged race discrimination, breach of contract and failure to give written reasons for dismissal. We cannot accept Mr Iles' submission so far as race discrimination is concerned. It may well be that if and when the matter is further enquired into it will appear that insofar as the appellant was less fairly treated, if at all, that was purely because of geographical distance, but it seems to us arguable that it was because of nationality or national origin, even if not race. So we remit that matter also.
25. So far as written reasons for dismissal and breach of contract are concerned, in letters of 15th May 1998 and 14th July 1998, the respondents gave very full and clear reasons for the termination of the appellant's employment. Mr Westgate referred us to section 92(1) of the Employment Rights Act 1996 which says:

"An employee is entitled to be provided by his employer with a written statement giving particulars of the reasons for the employee's dismissal-

(a) if the employee is given by the employer notice of termination of his contract of employment, …"

He said however that that was not the end of the matter, because by section 93(1) it is provided that:

"A complaint may be presented to an employment tribunal by an employee on the ground that-

…

(b) the particulars of reasons given in purported compliance with that section are inadequate or untrue."

Mr Westgate's argument was that even if one accepted that very full reasons for dismissal were given in the May and July 1998 letters, if the appellant's case succeeded at a rehearing, it would follow that the reasons given in those letters were either inadequate or untrue.

26. It seems to us, as Mr Iles argued, that that argument is not sustainable. It could hardly be said that the reasons given in those letters, especially taken together, were in any way inadequate. As Mr Iles has reminded us, "untrue" for the purposes of section 93(1)(b) means untrue in the mind of the respondent employer. There is no suggestion here that what was written in the letters was untrue in the mind of the respondent employer. We do not think that the claim for written reasons could possibly succeed if the matter were remitted and there is no point therefore in remitting it.
27. So far as the claim for breach of contract is concerned, it is quite clear to us, as Mr Westgate was in effect bound to concede, that the relevant wording of the contract makes it quite clear that an employee of the respondents was only entitled to payment of a bonus which he might otherwise have earned, if he was still employed at the time of payment of bonuses. The appellant was not employed at that relevant time which was 28th June 1998. It is clear from the contract therefore that he had no entitlement to bonus. There is no point in remitting the claim for breach of contract therefore since it would be bound to fail.
28. For all those reasons we allow the appeal to this extent: that the claims for unfair dismissal and alleged race discrimination should be remitted to a fresh Employment Tribunal for hearing and adjudication.