United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR HORNE (of Counsel) Instructed by: Vauxhall Community Law & Information Centre VNC Millennium Resource Centre Blenheim Street Liverpool L5 8UX


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us as a preliminary hearing the appeal of Ms Leonore Santamera in Santamera -v- Express Cargo Forwarding t/a IEC Ltd. It is a case that concerns a Decision at Liverpool relating to unfair dismissal; today Mr Horne has appeared for Ms Santamera.
2. On 12 June 2000, Ms Santamera lodged an IT1 for unfair dismissal, unlawful deduction from wages, failure to pay money in lieu of notice and holiday pay. She said that her employment had run from June 1994 until 16 March 2000. She is now fifty three years old.
3. On 7 July, the employer, Express Cargo, put in its IT3. It claimed that Ms Santamera had been dismissed for gross misconduct, harassing and bullying other employees. On 4 and 5 January 2001, there was a hearing at Liverpool. It seems to have related only to unfair dismissal. Quite what had happened to the other claims - whether they were consensually abandoned or not - it does not immediately appear, it does not either need to be dealt with at this stage.
4. On 26 April a majority Decision was sent to the parties. The Tribunal was sitting under the chairmanship of Mr E Lloyd Parry and the majority Decision was that the Applicant was fairly dismissed. On 1 June a Notice of Appeal was received from Ms Santamera. There is a thoughtful Notice of Appeal set out in five paragraphs, and of the five grounds, paragraph by paragraph, ground three, paragraph three is, as we understand it, abandoned. So that does not need to go to a full hearing.
5. Of the remaining four, all raise reasonably arguable issues, although ground five has been recast in a better form in paragraphs 20 - 23 of Mr Horne's Skeleton Argument and I will ask him in a moment whether it would be prudent to amend ground 5 to accord with those paragraphs of the Skeleton.
6. The case, as it seems to us, gives the Employment Appeal Tribunal the opportunity to consider, in the light of Ulsterbus -v- Henderson [1989] IRLR 251 paragraph 21, and Harvey DI/1515, how far, if at all, an ability to see and hear one's accusers is ordinarily to be regarded as an essential part of a fair disciplinary hearing, and if it is, what factors might justify departure from that ordinary rule The case also gives rise to the question of how far it is proper for those conducting the disciplinary process to consult others in such a way that the employee concerned does not know the nature of the consultation.
7. In particular, in this case, how far does it suffice for an Employment Tribunal to be told, without the employee having any face-to-face opportunity to test the witnesses in that regard, that the witnesses felt intimidated by the presence of the Applicant and were terrified of her. Questions such as that do arise here and are questions of general application and justify the matter going forward, in our view.
8. We mark it Category A, and Skeleton Arguments are to be exchanged not less than fourteen days before the hearing. Mr Horne says that at this stage there is no application for Chairman's notes. It is hoped that the parties will be able to agree any disputes as to evidence. If it does prove that Chairman's notes are to be sought, then, in the first place, the application should be in writing to the President. So we let the matter go forward, and it only remains to see whether there needs to be an amendment to the Notice of Appeal, in the manner we mentioned earlier.