United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS S BELGRAVE (of Counsel) Instructed by: Messrs Shoosmiths Solicitors Regents Gate Crown Street Reading Berks RG1 2PQ


 


MR RECORDER UNDERHILL QC

1. We have decided to allow this appeal to proceed. Normally, in such circumstances, we would say as little as possible, but in this case we do feel the need to explain briefly the Orders which we are making.
2. There are broadly two aspects to the appeal. The first concerns the complaints which the Appellant makes about her treatment up to and including her dismissal on 24 September 1999. The second concerns the Tribunal's finding that although that dismissal was unfair she should have no compensation because she would have been dismissed fairly in any event, for gross misconduct that is, for assisting in a fraudulent application to the Respondent for a tenancy in the course of her activities as a trainee solicitor.
3. As to the former aspect of the appeal, we have had great difficulty identifying from the materials before us exactly how the case was put before the Tribunal, what issues the Tribunal thought it was deciding and what decisions the Appellant now wishes to challenge. This is to some extent a criticism of the Tribunal's Reasons, which we have not found easy to follow at all points. It is also a criticism of the Appellant: the original Grounds of Appeal are difficult to relate to the Tribunal's Reasons and do not fully correspond to the Skeleton Argument submitted for this hearing by Ms Belgrave. We were also presented, for the first time this morning, with a bundle containing among other things the written closing submissions which were presented to the Tribunal. We have had no opportunity to analyse these properly; and they were in any event incomplete. But it is clear that they cover a great deal of ground which is not fully reflected in the Tribunal's Reasons, and which it is also difficult easily to match up with the Grounds of Appeal.
4. In these circumstances, we have invited Ms Belgrave to recast the Grounds of Appeal in order to go chronologically through the treatment about which the Appellant complains identifying each act and omission complained of, the basis on which that act or omission is said to have been unlawful, and the basis on which the Tribunal's Reasons, in that respect, are attacked - either on the basis that they failed to deal with the point at all, or identifying what error of law the Tribunal is said to have made.
5. Ms Belgrave has produced draft amended grounds accordingly. They were produced over an extended luncheon adjournment, so they are in fairly summary form, and they are not perhaps ideally expressed; but Ms Belgrave is satisfied that they raise substantively the points which she wishes to pursue. We give leave to the Appellant to substitute these grounds for the original Grounds of Appeal. There remains some tidying up to do, and we give leave to the Appellant to lodge the grounds in a cleaned-up version in the next 48 hours.
6. We are satisfied that, viewed as a whole, those amended grounds do raise arguable points as to how the Tribunal dealt with the first aspect of the case. Some of the points may be more arguable than others; but we have not felt able in our present state of knowledge, confidently to disentangle what may be the wheat from what may be the chaff.
7. The unsatisfactory state in which the case came before us makes it necessary to spell out what is always implicit, that is, that the fact that we have allowed the appeal to proceed does not indicate any view on its merits beyond the fact that there appear to be arguable points here. Nor does it indicate that all the issues taken are, in fact, necessarily open on appeal. As indicated, we have had real difficulty in identifying what detailed issues and evidence were before the Employment Tribunal, and if there are issues as to whether any of the points now included in the Grounds of Appeal are open to the Appellant, those issues remain to be dealt with on the full appeal if necessary.
8. We turn to the second aspect of the case, that is the Tribunal's decision that the Appellant would have been dismissed in any event for fraud. Here, the issues are much clearer: the Appellant says that she had no notice of this serious allegation and was prejudiced by that lack of notice; that the Tribunal gave no adequate reasons for so serious a finding; and that it reached a view which it could not have come to on the evidence. We are satisfied that there is an arguable point here.
9. Various procedural points however arise on that aspect of the case.
10. Firstly, the finding, in that regard, did not in fact, form part of the Tribunal's formal decision at the hearing from which this is an appeal. Although it makes the finding quite clearly in its Reasons, it does not form part of the formal Order recited at the beginning of the Reasons, no doubt because it goes formally to remedy, rather than to what - for want of a better word - we will call "liability". There could be no substantive difficulty about that point, but the necessity to work out exactly what the formal position is is removed by the fact that there has in the meantime - so we were told this morning - been a remedies hearing, of which we were given the Tribunal's reasons; and in that hearing the Tribunal, consistently with its finding on the liability hearing, awarded nil compensation. We understand that an appeal has been lodged against that decision, and we have directed that that appeal be consolidated with the appeal which is at present before us. Therefore questions of remedy and liability will come up together.
11. Secondly, there is an application by the Appellant to introduce fresh evidence in the form, as at present envisaged, of short statements from Ms Vagjiani and from Mr Bhardwaj. We are not in a position to deal with that application, in the absence of the Respondents, and in any event it has not been formally made; it was merely intimated in the Skeleton Argument. It seems to us that the correct way forward is to give leave to the Appellant, if leave is needed, to make a formal application to the Tribunal within 14 days, containing, firstly, copies of the statements on which it is intended to rely by way of fresh evidence: those need not necessarily be limited to the statement of Ms Vagjiani, which we have seen as signed, and the statement from Mr Bhardwaj, which we have only so far seen as a draft. They should be supported by an affidavit explaining any matters that need to be explained in support of such an application, including principally why the evidence was not relied on or adduced before the Employment Tribunal. If that application is made, within the specified time, we direct that it should be adjourned to the hearing of the substantive appeal, and it will have to be resolved as part of that hearing.
12. We give liberty to the Respondent to apply, if it takes the view that that fresh evidence application should be heard as a separate matter in advance of the main appeal. We are not encouraging such an application, but it would be wrong, in the absence of the Respondent, to make an Order which it is conceivable that the Respondent will think is the wrong way of dealing with such an application. We intend merely to leave that point open, in case the Respondent wishes to take it.
13. That is all we need to say about the second aspect of the case. There are various directions which need to be made in relation to both aspects. We direct that the entirety of the Chairman's Notes be produced for the purpose of the appeal. We have given thought to whether it is possible to be selective; but the uncertain state of our knowledge about precisely what was argued, and about the interrelationship between the different points, means that this would be an unsafe course, and although we are conscious of the burden on the Tribunal of having to produce the notes of the full four days hearing, we do not see any other fair alternative.
14. We also direct that there be before the Appeal Tribunal all written submissions that were available to the Tribunal below. We have now, as we have already mentioned, seen the Applicant's final submissions, the Respondent's closing submissions and a document headed "Applicant's Response to the Respondent's Closing Submissions"; but it has become clear that the first of those - that is to say the Applicant's final submissions - is incomplete in the version which we have, and it also seems likely that there was a document headed "Respondent's Response to the Applicant's Closing Submissions" which also needs to be before the Appeal Tribunal. If there were any written openings, which is probably unlikely, it is important that those should be available as well; and of course the Appeal Tribunal will need to have available to it all witness statements and the full bundle of documents that was before the Tribunal.
15. We have considered how long the appeal is likely to take. If it is properly prepared, and the argument is properly focused, with clear Skeleton Arguments, we see no reason why it should not be completed in a full day, but we think it would have to be a full day, that is to say the Tribunal should not have any preliminaries listed on the same day. We direct that it be listed as Category B.