United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Craig Farman A Representative


 


HIS HONOUR JUDGE PROPHET

1. Mr Dunseith presented, without legal representation, an application to the Employment Tribunal at Shrewsbury on 2 May 2002, complaining of an unfair dismissal by his former employers, Quartz Eclipse Ltd, with whom he had worked as the Graphics Business Manager for some fourteen months. The employer, also without legal representation, resisted the complaint, giving in the Notice of Appearance, gross misconduct as the reason for dismissal.
2. An Employment Tribunal sitting at Shrewsbury on Tuesday 14 January 2003, under the Chairmanship of Mr Williams, with Mr Butchart and Mr Hitchings as the lay members, decided unanimously that Mr Dunseith had been unfairly dismissed from his employment. An unusual feature of the hearing is that it proceeded in the absence of Mr Dunseith, who apparently thought the hearing was to take place on the following Friday, but who gave no satisfactory explanation as to why he could not, and indeed did not, attend on the correct date.
3. Pausing there, there is no obligation on a complainant to attend a hearing before an Employment Tribunal, although it is usually considered to be a considerable disadvantage to him if he fails to do so. On this occasion, however, as indeed is always possible, his complaint of an unfair dismissal was successful, despite his absence.
4. However in the absence of Mr Dunseith, the matter of remedy was adjourned and duly listed for hearing on 28 April 2003. On that occasion the Tribunal had the same Chairman, but two different lay members. Nothing is said in the Tribunal's Reasons as to why the Tribunal was differently constituted for the remedy hearing. At that second hearing Mr Dunseith was awarded compensation in the sum of £4,435, to which the recoupment regulations applied.

The Notice of Appeal submitted on 29 May 2003 by the employer challenges only the assessment of compensation. This is a preliminary hearing today in respect of that Notice of Appeal. Mr Farman, the Managing Director of the employer has attended at the hearing today.

5. The principal thrust of the appeal, as we understand it, is that Mr Dunseith contributed to his dismissal. The Employment Tribunal say nothing at all about contribution in either of its judgments. Now, there is an odd twist, in our view, to both the absence of Mr Dunseith from the first hearing and to the unexplained change in composition of the Tribunal at the second hearing. Mr Farman has said to us today that he cannot explain why the second Tribunal was differently constituted.
6. Although contribution is strictly speaking a matter relating to remedy, it is usual for most of the evidence from which contribution may be ascertained to be given at the liability hearing. Thus in this particular case, two things happened. First, the employer was denied any chance at the first hearing of cross-examining Mr Dunseith in respect of matters which could relate to contribution. Secondly, the new lay members at the second hearing had not heard of any possible relevant evidence given by the employer at the first hearing.
7. Where an employer has no legal representation, it is usually expected that an Employment Tribunal would look at contribution on its own initiative if the details in the Originating Application and the Notice of Appearance suggests that contribution could well be a matter for consideration. Notwithstanding that this Employment Tribunal took the view at the first hearing that the principal reason for dismissal was capability not conduct, that does not necessarily preclude contribution arising from blameworthy conduct being found on the part of the employee.
8. It is, we conclude, arguable from the facts that contribution as a factor in the eventual award was not properly dealt with by the Employment Tribunal as it should have been. That being so, it is sufficient for this case to proceed to a full hearing when both sides can present arguments. We give a time allocation for the full hearing of two hours, Category C.
9. It may also be helpful to the next Tribunal if Mr Williams could explain the reason for the change in the composition of the Tribunal at the second hearing. Although, usually, this Tribunal allows cases to go forward at a preliminary hearing without any transcribed judgment, I have asked for one to be given in this case, as the circumstances are rather unusual, and a note on how we see the case at this juncture may be helpful, although not, of course, in any way binding on the Employment Appeal Tribunal which will in due course decide this appeal.