United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS JANE GILBERT (of Counsel) Instructed by: Mr J D Barker Messrs Richmond Anderson Goudie Solicitors Flake Cottages Cone Terrace Chester Le Street Co Durham DH3 3QH
For the Respondent	MR SIMON DEVONSHIRE (of Counsel) Instructed by: Mr M O Heath Messrs Watson Burton Solicitors 20 Collingwood Street Newcastle upon Tyne NE99 1YQ


 


JUDGE D M LEVY QC

1. The Appellant, Mr P Murphy, was employed by the Respondent, Quality Commissioning Ltd, on site from 27 May 1998 until 16 December 1998, undertaking to work in marine on and offshore construction. On the latter date, he was dismissed. He made a claim for unfair dismissal; the claim was heard by a Tribunal sitting at Newcastle upon Tyne on 12 May 1999, 25 and 25 November 1999 and 20 and 21 March 2000.
2. Summary Reasons for the Decision were sent to the parties on 18 April 2000. Paragraph 4 of those Summary Reasons stated that the Respondent contended that the Applicant was dismissed as a result of a down-manning instruction given to it by its immediate superior. The Applicant contended that he had been dismissed by reason of the Respondent's disapproval of his refusal to work twenty eight days at a time with four days off, the Applicant preferring to work twelve days on and two days off. The Tribunal found that the reason for dismissal was redundancy arising out of the need to reduce the labour on site, such need being required by the Respondent's immediate superior contractor.
3. Having received the Summary Reasons, the Appellant wrote a letter to the Employment Tribunal dated 1 May 2000 in these terms:

"Following the tribunal's decision regarding the above case number, I am requesting you to consider a review. The grounds for this request are based on the fact that I did not receive notice of the proceedings, and the very late exchange of incomplete and inaccurate documents from the respondent.

I did not receive any written confirmation regarding the date of the hearing, only to find out the details following a telephone enquiry (by chance) to the staff of the tribunal offices on or about 8^th March.

Some of the respondent's documents, I received on the 9^th March, and although being a very late exchange, I was prepared to tolerate this, but documents posted on the very last posting date possible before the case, (retrieved after the case) and documents I did not see until during the hearing, I feel may have unfairly influenced the panel's decision in favour of the respondent.

The combination of these grounds, contributed significantly to my disadvantage, in both the preparation and defence of my claims.

It is quite apparent that my knowledge on legal proceedings, such as these circumstances, are far from being expert, but I do feel a sense of injustice surrounding this whole event.

I have acted in good faith regarding the instructions from the pre-hearing review, and at times naïve, as I thought I had only two weeks to send the names of witnesses to the respondent along with documents.

This I know is not relevant to this issue, but was the sudden appearance of witnesses I knew nothing about on the respondents side, relevant to the grounds of injustice."

4. That letter was treated by the Tribunal as an application for a review of its Decision and by a document dated 19 May the Applicant's application for a review was refused. The learned Chairman signing the document said:

"I have considered the original decision in this matter, the notes of evidence and the letter seeking review and have come to the conclusion that an application for review has no reasonable prospects of success and I therefore refuse it."

There was no appeal from the Review Decision. Extended Reasons for the Decision were promulgated on 9 June 2000. There was an appeal from that Decision by a Notice of Appeal dated 16 July 2000.

5. There was a preliminary hearing of the appeal before another panel of this Tribunal on 29 January 2001. The judgment was sent to the parties on 20 March, permitting the matter to go forward and certain directions were given as to evidence. Today we have had appearing for the Appellant Miss Gilbert and for the Respondent, Mr Devonshire, neither of whom appeared below. Below, the Appellant represented himself and the Respondent was represented by its Managing Director, Mr James Mayne.
6. Miss Gilbert who appears for the Appellant makes two points: One she says that the procedure at the Tribunal was unfair in all the circumstances, and secondly, she submits that the case of the Appellant was not properly considered, namely that there was some other reason for the dismissal. It would be convenient to take the second of her points first. We look at the judgment of the Employment Tribunal we see within paragraph 3, it is said:

"The applicant, however, alleged in the professionally drafted originating application that the true reason for his dismissal was not redundancy but his refusal to work 28 days without a break and this refusal was actuated by a genuine concern about health and safety which had been communicated to the respondent."

In the next paragraph it is said:

"The Tribunal accepted that the first time that a health and safety reason for dismissal was alleged was in the preliminary hearing held in this case."

Miss Gilbert is quite right in saying that it was mentioned in the Appellant's Originating Application but we do not think anything turns on this.

At paragraph 5:

" The applicant put to the respondent's witnesses (and particularly to Mr Mayne) that he had raised health and safety concerns with "Garry" prior to his dismissal; this was denied by Mr Mayne and the Tribunal accepted the denial. Further the Tribunal accepted that in fact the applicant did not at any stage work 28 days without a break."

Then paragraph 6 goes into the other evidence given to the Tribunal, and then the final sentence in the paragraph reads:

"6……………………….The Tribunal did not accept that this wish was expressed in any way that was relevant to health and safety matters and further did not accept that any health and safety matter arose (or was genuinely thought by the applicant to have arisen) as a result of the pattern of work actually worked by the applicant."

7. The Tribunal having heard the evidence from the applicant and the respondent's witnesses came to the conclusion that the only reason for the applicant's dismissal was redundancy in a genuine redundancy situation. It followed from this finding that none of the matters set out in section 100 Employment Rights Act 1996 ("health and safety cases" ) arose for the Tribunal's consideration."

In our judgment the issue of whether there was any other reason for the dismissal was fairly and squarely dealt with by the Tribunal and the appeal on this ground fails.

7. The other ground on which the appeal was advanced is that there had been prejudice and unfairness to the Appellant by the way the matters were dealt with both by the Respondent and by the Chairman of the Tribunal hearing the appeal. Effectively, a number of documents were sent to the Respondent very, very shortly before the hearing, and another bundle of documents was produced on the day of the hearing. The Appellant says this made it much more difficult for him to conduct his case. He did not have the opportunity properly to examine the documents which were sent, and if he had had the documents sooner and had been able to prepare his case better, other factors would have emerged for the Tribunal's consideration.
8. We have looked at many of the documents which he received late. Many of them were documents of the Appellant. We well understand the difficulties that an applicant has appearing in person, and we well understand the difficulties that an applicant has if documents are, so to speak, thrown at him with no opportunity to look at them. However, we have carefully read his statement and the reply of the Chairman to it; we have also looked carefully at the Chairman's Notes of Evidence. As to the Chairman's comments, the Chairman said this in a letter dated 20 September 2000:

"I have received your request for comments on the Notice of Appeal in this matter. The Notice of Appeal asserts that the applicant "pointed out to the panel that (he) was seeing several documents and statements for the first time" and that "witnesses differed from one declared in previous correspondence with the Respondent" and that as a result the applicant was at a disadvantage.

The hand-written notes of the hearing that I have seen do not bear out these assertions - my memory of the hearing is limited to that which I can glean from those notes; I can say however that it is my normal practice to ensure that parties are not taken by surprise by the late delivery of documents particularly when they are unrepresented. It would not be my normal practice to offer an adjournment out of the list although a short period of delay for the parties to assimilate anything that comes to them fresh at the start of the hearing would normally be offered. The hearing in the case of Murphy appears to have been comfortably completed within the day and I can think of no reason why (if the Applicant had indicated that he was seeing documents for the first time) such a delay would not have been offered."

The Notes of Evidence are of the hearing on 20 March 2000 and as Miss Gilbert submits, it looks as if most of the evidence was heard before lunch; we can see from the penultimate case of the Chairman's notes that there was an adjournment before Mr Mayne was cross-examined, and then the submissions followed.

9. We can see that Mr Murphy may well have had difficulties at the hearing, but of the cases we have been referred to, we will only cite one which was cited to us by Miss Gilbert, which the decision in Bache -v- Essex County Council [2000] IRLR 251. At paragraph 35 of that decision of a Court of Appeal, Lord Justice Mummery said, agreeing with the judgment of Lord Justice Peter Gibson:

"(1) At the hearing the tribunal must follow a procedure which is fair to both sides. It must normally allow each party to call relevant evidence, to ask relevant questions of the other side's witnesses and to make relevant submissions on the evidence and the law."

We cannot see that this was in any way not followed at this hearing.

"(2) The tribunal is responsible for the fair conduct of the hearing. It is in control. Neither the parties nor their representatives are in control of the hearing."

It is not in dispute that the Chairman here was in control of the proceedings. It is alleged by the Appellant that he did not fairly control them.

"3) Procedural fairness applies to the conduct of all those involved in the hearing. Just as the tribunal is under a duty to behave fairly, so are the parties and their representatives. The tribunal is accordingly entitled to require the parties and their representatives to act in a fair and reasonable way in the presentation of their evidence, in challenging the other side's evidence and in making submissions. The rulings of the tribunal on what is and is not relevant and on what is the fair and appropriate procedure ought to be respected even by a party and his representative who do not agree with the ruling. If the party and his representative disagree with a ruling, an appeal lies against it if the tribunal has made an error of law.

(4) A tribunal makes an error of law in its procedural rulings if it either has no power to make the ruling or if, in the exercise of its discretion, it makes a ruling which is plainly wrong in the sense that no tribunal properly instructed could have made that ruling.

(5) Even if the appeal tribunal or the Court of Appeal find that a ruling has been made in error of law, it does not follow that the appeal should be allowed and that the case should be reheard by the tribunal in whole or in part. This is not to diminish the importance of procedural fairness: it is as important in many ways as the application of the substantive law to the facts of the case. But the response to the finding of an error of law in procedure should be proportionate. If the appeal tribunal is sure that the result of the case is unarguably right and that the outcome would have been the same, even if the error of procedure had not occurred, it would be unnecessary, unjust and disproportionate to remit the case to the tribunal for a rehearing. There are no good grounds for ordering a rehearing of this case."

10. We are not satisfied that there was any prejudice or unfairness to the Appellant in the course of the hearing before the Chairman. Having carefully gone through the documents, as we said, we think that he was given the opportunity to cross-examine the witnesses and, indeed, he was able to put forward that case as we find that he did, that there was some reason other than redundancy for his dismissal. However, if we are wrong with that, having looked at all the documents which we were asked to consider, we are satisfied that if there were procedural errors below, this is one of the cases where we can safely say that the result is unarguably right, in those circumstances, we thank Counsel for their submissions and dismiss this appeal.