United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


MR RECORDER UNDERHILL QC

1. We intend to allow this appeal to proceed but it is important that we indicate the basis on which we do so, which is essentially two-fold.
2. First, the Tribunal did not deal with the claim referred to in the Appellant's Originating Application for breach of contract. Although it is not at all clear from the Originating Application it is made clear by the Notice of Appeal (point no. 2 at the end of the Notice of Appeal) that this was a claim for 10 days wages, although it appears from what the Appellant has told us that the amount outstanding may now only be 4 days. This claim was not dealt with at all by the Tribunal. We have the Chairman's explanation for this omission (fortuitously, because he was asked to comment on other allegations in the Notice of Appeal relating to potential unfair conduct at the hearing) and it is clear from that explanation that there was a complete misunderstanding by the Tribunal of what was intended by the breach of contract case. It is plainly arguable that the Tribunal ought to have ascertained clearly from the Appellant what the nature of the case was and dealt with it. The Chairman in fact suggests that now that he understands what the claim is, it could be dealt with on a review. That is not something which we can direct, but it is something that the parties should at least consider. But if that route is not taken the matter will clearly have to be dealt with at a full appeal. Since all that that can lead to, even if the Appellant succeeds, is a remission to the Employment Tribunal, we would urge the parties to see whether they cannot settle this claim, for what is a very small sum of money, by agreement between themselves. We would have thought that the objective facts were not difficult to ascertain and it should be clear what the true position is, either way but if that really cannot be resolved all we can do today is to allow the appeal to proceed.
3. The second ground on which we allow the appeal to proceed is that it is at least arguable that the Tribunal's Reasons are not sufficiently detailed to enable the Appellant to understand the grounds on which he failed. The hearing took place over two days. Several witnesses were called. The Tribunal provided Summary Reasons of about a page and a half. When the Appellant applied for Extended Reasons all that he received back were the identical Summary Reasons with three introductory paragraphs and this short explanation:

"It is considered that the contents of the summary reasons sent to the parties on 30 May 2000 are adequate to explain the reason for the Tribunal's decision. Accordingly, these extended reasons will simply reiterate what was set out in the summary reasons."

That is not a course which any of the members of this Tribunal have seen followed before. It might be appropriate in cases where the original Reasons have indeed, although technically described as summary, been extremely full; but that cannot be said to be the case here. We think it is arguable that the reasons are inadequate.

4. The Appellant's grounds of appeal go over seven pages and are fairly diffuse. If he was legally represented we would take this opportunity to ask him to revise the grounds of appeal in the light of our judgment. We do not think that would a useful course in this case, nor do we propose to undertake a prolonged commentary on it but there are two points we wish to make.
5. Firstly, it is clear that a principal complaint raised by the Appellant is that the Tribunal did not hear evidence from the primary witnesses of the misconduct of which the employers found him guilty. He feels aggrieved by this because he believes that if those witnesses had been available he would have been able to demonstrate that the charge against him was ill-founded. But we have explained to him, as it appears the Chairman did below, that the focus of the enquiry in the Employment Tribunal is limited to the reasonableness of the employer's investigation and we have sought to make it plain to him that it is not an admissible ground of appeal that the Employment Tribunal did not undertake an enquiry into whether he was in fact guilty of the misconduct.
6. Secondly, at the beginning of the Notice of Appeal, there are what appear to be allegations of unfairness or misconduct against the Chairman. In accordance with the practice of this Tribunal the Chairman's comments were sought and at the same time an affidavit was sought from the Appellant. He asked the Tribunal why an affidavit was necessary and the matter was more fully explained to him by letter dated 26 September 2000. In his reply dated 28 September 2000 he states, among other things:

"I did not complain about the conduct of the Employment Tribunal under paragraph 9 of the Practice Direction. If I had I would have identified the nature of the complaint and filed a sworn affidavit to support it."

In those circumstances, it appears to us plain that that aspect of the appeal is not being proceeded with.

7. One aspect of the appeal which we should perhaps briefly mention is that the Appellant makes points about the reasonableness of the employer's investigation. He mentions, in particular, their failure to examine video evidence which he said would have been available and would have assisted in establishing his innocence. We do not feel in a position to say anything about this aspect of the appeal. It is precisely because the Reasons of the Tribunal are so limited that it is impossible to know, either whether this point was raised before the Tribunal or, if it was, how it was dealt with and whether it was dealt with in a way which was capable of upholding a decision that the employers had acted reasonably.
8. Perhaps unusually, in view of the grounds on which we are allowing this appeal to proceed, we are all of the view that the Employment Appeal Tribunal at the full hearing may be assisted by having available both the full bundle of documents before the Tribunal and the Chairman's Notes. Because of the very limited nature of the Tribunal's Reasons we cannot be sure whether it will be useful to examine those notes; but it seems to us that it may well be, and in those circumstances we direct that a request be made to the Chairman accordingly.
9. We would direct that this case be listed as Category C with a time estimate of three hours.