United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	SOPHIE PARENT (of Counsel) Camden Community Law Centre 2 Prince of Wales Road London NW5 3LG
For the Respondent	Debarred


 


HIS HONOUR JUDGE J R REID QC

1. This is an appeal against a decision of an Employment Tribunal which was given on
   16 June following a hearing on 6 June. By that decision the Tribunal, which was sitting at London North, held unanimously that the Applicant, Mr Nevrides, was not dismissed and that his claim of unfair dismissal failed. The Tribunal did however award him in respect of wrongful dismissal and unpaid holiday pay a total of £1,490.75. The conclusion primarily related to the holiday pay which he had not had and a certain amount of 'rounding up' for the period 12 –20 January which equated to an extra day.
2. The hearing in fact was a second hearing because there had been an earlier hearing on 12 May at which the Respondents had not appeared. A director turned up just at the end of the hearing whilst the decision was being announced. The Tribunal then decided to revoke the decision that it had reached and direct a fresh hearing before a freshly constituted Tribunal.
3. The problem that arose in this case was that Directions were given for the exchange of witness statements and bundles of documents not less than 14 days before the new hearing. That did not take place. What did happen was that when the parties were going in for the re-hearing the Respondents turned up with counsel and a witness, that is to say the wife of the employer, or the corporeal manifestation of the employer, and as they were going in the barrister gave to Mr Nevrides a bundle containing 27 pages plus 2 witness statements comprising together 3 sides. The hearing then got under way. The fact that the documents had been served late was not brought to the attention of the Chairman until the hearing had been underway for some considerable time when Mr Nevrides, who had had to put his case first since the issue was whether or not he had been dismissed, told the Tribunal that he had not received the documents or the witness statements until just before the hearing. The Tribunal determined that Mr Nevrides could look at the statements over the lunch break and so think about them before he cross-examined the Respondent's witnesses. There was then no further reference after lunch to the delay in handing over the witness statements or the documents. The hearing went on to the result that I have already detailed.
4. The complaints that were made against what happened were to the effect that Mr Nevrides was taken by surprise. He appears to have been taken by surprise first of all by the need for him to go first, and second by the documents. Then it is said that he was then disadvantaged having been taken by surprise because he did not have his appropriate second pair of reading glasses with which to read the documents, and that he did not really have a fair chance to read everything over the lunch adjournment (although it appears that he accepts that he did not tell the Tribunal at the time that he had problems about his glasses).
5. From his verified statement his complaint is not about any inability to put matters from the documents to the Respondent's witnesses, but that when he did cross-examine he felt that there was no point in asking anything because every question he asked was objected to. What is said on his behalf is that he did not get a fair hearing and that the Tribunal should have first of all asked him how long he wanted rather than simply telling him he could have the lunch adjournment to look at the documents. The Tribunal should have adjourned the matter to give him substantially more time to prepare his case.
6. So far as the documentation is concerned, the witness statements were extremely brief. So far as the bundle of documents was concerned, it looks as though there was virtually nothing in it which he had not seen before apart from an MOT certificate which was at best of very marginal relevance. There was also a form sent by the Department of Social Security to the employer which had been filled in by the employer and returned. That form, apart from a number of 'tick' boxes, had on it 5 lines of narrative setting out the employer's account of the termination of Mr Nevrides employment.
7. In our judgment it was essentially a matter for the Tribunal to determine how the hearing before them should be conducted. It was for the Tribunal to determine as they saw it what was necessary for the hearing to be conducted fairly. Given the very limited amount of material that was in fact new to the Applicant, Mr Nevrides, it would not have been at first blush unfair to suggest that he could read through documentation over the lunch adjournment. It appears to have been only just before the lunch adjournment that he first indicated that he had only had the documentation at the last moment. He did not thereafter ask for any further time. His complaints centre to a large extent on the fact that he was taken by surprise at having to begin, and on the fact that his style of cross-examination led to objections and led him to feel that there was no purpose in his continuing to ask questions.
8. The issue for us is whether the Tribunal got it so wrong that we can intervene. This was, as we say, essentially a matter for the discretion of the Tribunal. We regret that nothing that has been said to us today indicates that there was any error which was so apparent as to entitle us to interfere with the way in which the Tribunal exercised its discretion. It may be that had we been members of the Tribunal we might have dealt with the matter slightly differently. We might, for example, have asked Mr Nevrides what length of time he needed. We might have asked him again after the lunch adjournment whether he was ready, but it does not seem to us that the fact that we might have dealt with the matter rather differently indicates that there was any error of law with which we can interfere in the way in which the Chairman and his members exercised their discretion on the day. It follows therefore that the appeal will be dismissed.