At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
MR D A C LAMBERT
MR K M YOUNG CBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING EX PARTE
For the Appellant | MR ANDY GEORGE (of Counsel) Appearing under the Employment Law Appeal Advice Scheme |
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
"The Respondent decided to proceed with the disciplinary hearing and reiterated that the opportunity for the Applicant's union representative to present her case and cross-examine witnesses would remain available. The Applicant declined to attend and instructed her union representative not to attend on her behalf."
The disciplinary hearing did go ahead in Mrs Hill's absence. There was oral evidence at the hearing from thirteen witnesses and written evidence from a further seventeen. Ultimately gross misconduct was found. Mrs Hill appealed and attended the appeal but then discontinued her attendance there on the afternoon of the second day.
"The respondent faced a difficult decision. To proceed in the absence of the applicant would incur the risk of being criticised for unfairness. To postpone for the short period sought by the applicant offered no realistic prospect, in the light of medical evidence, that she would be fit to attend at the resumed hearing. To postpone for the lengthy and indefinite period implied by the medical evidence would foreseeably cause the exacerbation of existing problems with other staff, would involve a further lengthy period of suspension on full pay for the applicant and offered no certainty that the applicant would be fit to attend a resumed hearing whenever that might be."
The Tribunal continued:
"To those facts we had to apply the now well-established law. The question was not what would the Tribunal have done but, rather, was what this respondent did a course of action which was open to a reasonable employer; was it, in other words, within the range of reasonable responses. In all the circumstances, the Tribunal were satisfied that the respondent did all it could to convene a fair hearing and permit the applicant's case to be put and argued by her representative, Mr Mack, either in her presence or in her absence, depending on the state of her health and her wishes. We could not categorise the course of action adopted by this respondent in the difficult circumstances it faced as unreasonable."
"They were granted an amnesty to that extent, namely that they would not be penalised for their late disclosure of allegations. Importantly, they were not offered any amnesty to exempt them from disciplinary action for any offences that they may themselves have committed."
"I have stated in my notice of appeal that I was unable to properly challenge all the allegations made against me. I presented my case in person before the Employment Tribunal when my husband who was present endeavoured to assist me he was advised that he would be removed from the room if he "interrupted". The Employment Tribunal denied me the opportunity of properly putting my case in that my evidence consisted of me being questioned by the Respondent's legal representative."
That is one allegation that there had been something that could conceivably amount to some degree of impropriety or misconduct levelled at the hearing by the Tribunal. There is another point of a similar character because in paragraph 3 Mrs Hill continues:
"When the Employment Tribunal asked if I had any further evidence that they wished to consider I drew their attention to a substantial bundle of documentation that I had collated. That documentation was considered over a lunch break and it is quite clear that there was insufficient time for that documentation to be considered by the Tribunal (page 1-51). I contend that the Tribunal erred in law in failing to allow me a proper opportunity to present my case."
So, there is another allegation of some degree of procedural impropriety.
Mr George, what do you say about - first of all, how long will it take to amend the Notice of Appeal and then how procedurally do we cope with Chairman's notes and affidavits and so on?
Sir, an Amended Notice of Appeal will take fourteen days, although on other occasions here a transcript of the panel's decision has been provided, which obviously makes it easier to ensure that the grounds match the decision. I don't know how long that takes at the moment sir?
Well, I'm afraid we do have problems about typing! I think the better course is for you to frame . - I mean you know what you've said - we haven't actually in terms ruled out anything that you've said, so that to that extent you don't need the transcript, but I would have thought fourteen or twenty one days should suffice.
Might I ask for twenty one just to ensure I can ..
Yes, very well. Twenty one days to amend the Notice of Appeal and submitting it to me as I mentioned.
Sir, as far as the affidavit is concerned, I will certainly explain to Mrs Hill the significance and the import of that. I would have thought it would be procedurally be possible for Mrs Hill, having set out her recollection, much as she has done, to have an argument for that to be sworn in any appropriate form, and I shall have to offer see if there are places .
Yes, how long?
Perhaps twenty one days for both, then both can come to you together sir? My submission would be that Chairman's notes of evidence .
Twenty one days for the affidavit and then we will need to send off the affidavit and, I would think, the Amended Notice of Appeal for comment from the Chairman. Do you think you see any real need for Chairman's notes beyond comment?
No sir, insofar as . that would be a discrete issue was there, at that particular procedural impropriety, and what was said to the Applicant's husband . clearly, if the Respondent is going to assert that, for whatever reason, any of the matters I have put to you today were dealt with and notwithstanding the lack of reason, as it were, there was an evidential consideration, that may hereafter give rise to .
Well, at any rate you don't ask for them at the moment?
Quite so, sir.
Very well, if circumstances change fresh application can be made. I think that's everything we need.
Sir, might I raise just two matters for clarification of your decision? First, that the Applicant's [inaudible] was in person and the trade union representative was a witness at the case and gave no .
At the Tribunal? he was merely a witness was he?
Secondly, just . obviously the Mr McKenzie issue occurred in the context of the appeal, as you rightly said in your decision the word 'disciplinary hearing' - I'm sure the other side would not be confused, but just to make it quite clear that the panel are well aware that there was a disciplinary hearing, but it was the appeal .
Yes, certainly.
I'm grateful sir.