United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARTYN WEST (Representative) Peninsula Business Centre Riverside New Bailey Street Manchester M3 5PB


 


JUDGE D PUGSLEY

1. This is an appeal from the Tribunal sitting in Birmingham and we have had the benefit of hearing argument from Mr West who is a representative from Peninsula, a firm concerned with the presentation of Employment Tribunal cases.
2. The Tribunal in its Extended Reasons sets out, in a short but comprehensive form in our view, the reason why the Applicant was unfairly dismissed. Unfortunately in paragraph 2, they say this

"In arriving at our decision, we take into consideration the written witness statements, the agreed bundle of documents and the oral evidence of the witnesses. Oral evidence was given by the applicant and Mr David Collin Griffiths who is a director with the respondent company."

They then proceed to set out the facts of the case at paragraph 3 onwards. They direct themselves as to the law. That

Under Section 98(1) of the Employment Rights Act 1996 . . . in determining whether the dismissal . . was fair or unfair, it is for the employer to show –

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that is either a reason falling within sub-section (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

The judgment then goes on to say that Section 98(2) lists four potentially fair reasons for dismissal. It then in its conclusions states as follows at paragraph 7

It is for an employer to establish a reason for the dismissal. The respondent relies on "some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held" under Section 98(1)(b) of 1996 Act as the potentially fair reason for dismissal.

The respondent has not called any evidence from Mr Marron nor anyone else from Wincanton. It relies upon Mr Marron's letter of 23^rd November 1999 and the evidence of Mr Griffiths to establish the dismissal was as a result of client pressure

Paragraph 9 of the decision reads

"We have considered carefully whether the reason for the dismissal genuinely was due to client pressure or for some other reason. We have looked carefully at Wincanton's letter of 23^rd November 1999. It is clear from that letter that the customer's criticisms are not solely, or even primarily, directed against the applicant. The criticisms Mr Marron makes are largely criticisms of the respondent. His only reference to the applicant is in the third paragraph where he states: "I do not know what games are being played by the current manager but I do not subscribe to them and will not tolerate them." However, the remainder of the letter is an attack on the failure (as he sees it) by the respondent to deal with his complaints of the equipment supplied, the quality of the equipment itself and a sense that his grievances were not being handled satisfactorily. We consider it significant that the applicant was not dismissed or even warned as a result of that letter. The letter is dated 23 November 1999 but the applicant was not dismissed until 31 January 2000. She could not therefore have been dismissed directly as a result of that letter. Indeed, there was a lengthy meeting on 21 January between the applicant and Mr Griffiths when several issues were discussed in detail such as the applicant's sickness record. There is no direct evidence whatsoever of any client pressure to dismiss nor is there any evidence of a causal link. Merely because the respondents say the dismissal was due to client pressure does not make it so. We do not accept their evidence as reliable or frank. It flies in the face of the documentary evidence, such as it is, before us.

Accordingly, as the respondent has failed to establish that the reason for the dismissal falls within any of the potentially fair reasons under Section 98(1) or Section 98(2) of the 1996 Act, or for some other substantial reason of a kind such as to justify dismissal, the dismissal must be unfair."

3. The grounds of appeal state this

"The Tribunal decision is defective in that they refer to the consideration of the evidence from the Respondent [that means the applicant in the context of this case] and D C Griffiths. However in such consideration the evidence of the Respondent was adduced in the form of a written statement, in respect of which the Appellant was afforded no opportunity to cross examine, despite the Respondent's presence at the hearing. Mr Griffiths gave his evidence orally and was subject to cross examination. The Tribunal fails to explain the rationalisation of the evidence, and why the Appellant's evidence was not accepted in relation to all the factors which featured in the decision to dismiss.

In failing to afford the Appellant an opportunity to cross examine, yet accept the Respondent's evidence, the Tribunal did not adopt an even handed approach and thereby denied the Appellant a fair hearing.

In rationalising the reason for dismissal, the Tribunal err in that the correct approach is to ascertain the reason, then determine if that is a substantial reason. In failing to do so, or to properly explain their approach, they erred in law."

We have had the benefit of a skeleton argument. It is right to say that the chairman was asked about the suggestion that the Applicant's cross examination was not permitted and he said this

"Cross examination of the applicant was not "barred". There was no evidence taken from the applicant as the respondent failed to demonstrate that the reason for dismissal fell within one of the potentially fair reasons for dismissal under Section 98 ERA 1996 (paragraph 10 of the decision)."

4. We have had the benefit of hearing Mr West. We do not wish to embarrass Mr West but we think that with hindsight, he would accept that unfortunately there have been crossed wires. He has put before us a rather different account of what happened. He says that at some stage the Tribunal took a comfort stop, or that is what it is assumed to be, came back and asked the representative for the employer, a Mr McCaren solicitor, whether or not their case was based on third party pressure. He said "yes" and they said we do not accept that, and it was not so much that the Applicant elected through the advocate not to call or give evidence, it was just that the Tribunal decided there and then that on that basis they did not accept the evidence called and that in those circumstances a dismissal was unfair. Mr West is in some difficulties, Mr McCaren is not here and we do not think it would be right to tie Mr West to a definite position but he did indicate there was some discussion between Mr McCaren and the chairman saying some cases were cited as to third party pressure.
5. It is, we think, time to go back to first principles. Principle one is that there is a duty on the employer cast by the Act, as the decision makes clear, to show what the reason was and that that reason was a potentially fair reason. Mr West does not challenge that. We can see nothing wrong with the Tribunal indicating, at the end of the employer's evidence, that they do not accept that the employer has discharged the burden imposed by the Act of showing what the reason was and that it was a potentially fair reason. To use a rather old fashioned example; If the lord of the manor dismisses a butler saying that he has seen him drinking his sherry, then there would be nothing wrong with the Tribunal indicating that they just did not accept that evidence, and the Tribunal, having asked and cross examined the lord of the manor, coming to the view that the real reason for the dismissal of the butler was that he had a well publicised financial misfortune and could no longer afford the services of the butler.
6. The reason for dismissal is one that lies exclusively within the mind and within the knowledge of the employer and in this case we cannot see that the Tribunal erred. It is unfortunate they inaccurately stated the position in saying, as they do, that they heard the oral evidence of the Applicant. Merely because the employer say that the dismissal was due to client pressure does not make it so. The Tribunal were entitled to say they did not accept their evidence as reliable or frank. The Tribunal noted that it flies in the face of the documentary evidence that was before them (see paragraph 9).
7. Mr West has pointed out that of course the Applicant's statement was before the Tribunal and in paragraph 2 they say that they have considered all the statements. We accept it might be wrong to found a case on a written statement made by one party who had not be called, and the other party had not had the opportunity to cross examine, if that was an issue live before the Tribunal. But there is no indication in the decision, that we can see, that the Tribunal based their view on anything said by the Applicant in her written statement. It was merely that they did not believe that the employer had discharged the burden of showing the reason for the dismissal.
8. Mr West has invited us to consider that we should allow him to amend his Notice of Appeal to say there was a procedural irregularity and that the Tribunal did not give adequate opportunity to the employer's representative to argue and submit that the employer did discharge the burden imposed upon him. He has indicated there seems to be some discussion.
9. This is a case where the employer was professionally represented. If he felt there was something unfair about the procedure adopted by the Tribunal we do not think it imposes too high a burden to say that should have been spelt out at the hearing itself. In particular, we think, it should have been spelt out in the grounds of appeal and the chairman asked to comment on it. We think it is far too late in the day for that to be mentioned by a side wind during the course of argument and to become the principal reason of the appeal.
10. In the exercise of our discretion we do not consider it would be proper to allow that issue to be canvassed at this stage with all the problems there would be. We say that, having regard to the fact that this case was heard as long ago as February and it is now December. We think that if one wants to allege that there was a procedural irregularity then one should do so at the first available opportunity; certainly not months after when inevitably memories have faded.
11. Quite simply it is open to a Tribunal to find they do not accept an employer's evidence. What the Applicant says about the matter is not of crucial significance, indeed of any real significance, if the Tribunal at that stage does not find that the employer has discharged the onus imposed of them by statute of establishing what the reason was, and that was a reason which was potentially fair.
12. We consider that reading this decision it is quite clear why the Tribunal have reached the decision they have. They have set it out in a way which is adequate. It is unfortunate the decision is blemished by referring, as it does, to the Applicant having given oral evidence but that was corrected by the statement of the chairman. We do not wish to give ourselves all the wisdom of hindsight, but Mr McCaren was there and he should have known whether or not the Applicant gave evidence and we do feel that if the real issue is the procedural irregularity, that should have been raised earlier.
13. Mr West has put his argument before us in an attractive way. Nonetheless we cannot identify an arguable ground of law. In these circumstances we consider the appeal shall be dismissed.