United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARLEY (IN PERSON)
For the Respondent	MR HUGH HAMILL (of Counsel) Instructed By: Miss A J Wolfe Group Legal Dept Securicor Management Services Ltd Sutton Park House 15 Carshalton Road Sutton Surrey SM1 4LD


 


JUDGE D PUGSLEY:

1. This is an appeal from an Employment Tribunal. It has already been before an Employment Appeal Tribunal who identified an error which they said was arguable. Before we say anything we want first to say something about the conduct of this case before us by the Respondents.
2. Mr Hamil's his conduct of this case would serve as a template of commonsense and integrity as to how any member of the profession should act towards an unrepresented litigant. We associate, if we may, those comments with that of his instructing solicitor. Both members wished this to be mentioned because they feel very strongly that Mr Marley has been dealt with courtesy, good manners and most of all with a sense of fairness by Mr Hamil and those instructing him.
3. Mr Marley is a man who is of mature years, balding and bespectacled and what is said is that he assaulted someone else by head butting him. Whether that allegation is well founded is not a matter for us but we are concerned that in this case we do not consider that this case has received the attention it both demands and deserves.
4. It is a fundamental right that anyone who comes before a Tribunal should know why they have won and why they have lost and they should know the main outlines of the findings of the Tribunal. We are at a loss to understand why it is that the Chairman of the Tribunal thought it was appropriate in this case merely to, when asked for Extended Reasons, to reiterate what was set out in the Summary Reasons.
5. We consider the grounds that have been given are wholly inadequate to explain to the Applicant and to the Respondents the basis of the decision. It does not begin in our view to explain to the Applicant what evidence was accepted and what evidence was rejected and we think litigants are owed more than merely the conclusions of the Tribunal. They are entitled to have reasons. We make it quite clear that we are weary of cases in which if it is argued that the Tribunal did not find enough facts when there is a decision which runs into 12 or 14 close-typed pages. That is not such a case. What we have here is the reasons in fact being the conclusions and all parties, including the Respondents, are entitled to have a more comprehensive account of what were the issues before the Tribunal.
6. Mr Hamil, who appears before us has impeccably, in our view, done all that he possibly can as far as the case is concerned. He notes that the Employment Appeal Tribunal at the Preliminary Hearing commented on the procedures adopted and the Respondents do not disagree with those comments. He said that if the Court is not satisfied with the reasons of the Employment Tribunal then it is submitted the proper course would be to adjourn this order and and invite the Tribunal to find further reasons for that decision. Quite simply we do not think that is appropriate. We question whether or not that was in the spirit of the case of Reuben v London Borough of Brent [2000] IRLR 176 [2000] ICR 102, though we have not been referred to the case and we note there is a dictum of May LJ in Leverton v Clwyd County Council [1988] IRLR 239 that an appeal to the EAT should be decided on the Tribunal's reasons as originally drafted.
7. We do not think the shortcomings in this decision can be dealt with by asking the Tribunal to amplify their decision. We believe it is essential that there is a re-hearing and a re-hearing before a differently constituted Tribunal. However, it goes further than that. The Respondents did not pay the Appellant during the period when he was suspended. The Respondents have offered the £145.72 and they do not resile from that.
8. Employment Tribunal Chairmen have a difficult task. Their task may be made the more difficult because sometimes parties are not represented or not well represented. But there is, in the view of this Tribunal, a gaping hole which we believe the Tribunal were under a duty to explore. The Applicant was unrepresented at the hearing. His application says "unfair dismissal, breach of contract". It is true when it came to the Preliminary Hearing before the Tribunal there was only reference to the period of time when he was suspended.
9. We are concerned that the Tribunal did not consider the question of money in lieu of notice as a breach of contract. We accept that it is not for a Tribunal to find a case for an unrepresented litigant but where breach of contract is alleged a Tribunal should consider whether the Applicant was paid money in lieu of notice. This is a case that should have been considered as a breach of contract. Had the Tribunal done that they would have immediately, we hope, have realised that the test for breach of contract is different from the test of unfair dismissal.
10. The test of unfair dismissal is whether or not there is a reasonable perception by the employer that the employee has been guilty of conduct which justifies his dismissal. Unfair dismissal is about the perception of the employer and whether the employer had reasonable grounds for that perception having made such enquiries as appropriate. Breach of contract is different. An employer is in breach of contract by failing to pay money in lieu of notice unless summary dismissal is justified by gross misconduct. It is then for the employer to satisfy the Tribunal, not that their perception is that he had been guilty of gross misconduct is right, but that the employer had breached his contract by his behaviour and that such behaviour constituted gross misconduct. We find it difficult to see how the employer can discharge that burden if they do not call evidence of those who were witnesses of the incident. We are not saying it cannot happen but it is a completely different evidential basis. In a case of unfair dismissal an employer cannot justify a dismissal which was unfair by subsequently discovering facts that would have made it a fair dismissal because the employer is fixed with the knowledge he had at the time of the dismissal. That is not the case in the case of breach of contract. In a breach of contract case the issue is whether there was a breach and an employer can at times justify a dismissal which was apparently wrongful at the time by conduct subsequently discovered at the time of dismissal. (Boston Deep Sea Fishing and Ice Co v Ansell 39 Ch. D 339).
11. In these circumstances we direct that this case goes back to be heard afresh before a differently constituted Tribunal. We ask that it be given as an issue the attention it both demands and deserves as a matter of justice to all the parties including the Respondents who have the additional burden of stress and strain and expense of these proceedings just as the Applicant does.
12. A final word is this. Notwithstanding the fact that we have taken the issue on breach of contract, Mr Hamil has conceded that we have the jurisdiction to do so. We think it is an issue that goes to jurisdiction even though it was not mentioned before the Preliminary Hearing when Mr Marley was on his own. The Respondents have not resiled from the fact that with respect to the amount of payment covering the period when the Applicant was suspended and they will produce a cheque to the amount we have already given.
13. We want to say this. In no shape or form are we seeking to predict what the result would be but we want to say (and finish as we say) that we have sympathy for Mr Marley but we want also to express our sympathy to the employers and their witnesses because in our view this matter should not have got to the stage it has. It should have been the subject of detailed reasons when they were requested and the breach of contract should have been flagged up by the Tribunal. The appeal is allowed and is to be reheard before a differently constituted Tribunal.