United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M WEST (Representative) Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB
For the Respondent	TED SANDALL Manager Torquay CAB 11 Castle Road Torquay Devon TQ1 3BB

SUMMARY

A tribunal as part of case management is entitled to refuse to allow a party to adduce documents on the hearing day when directions have not been followed. It should give reasons for any such contested application, if not at the time then in the written or oral reasons on the substantive Hearing.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case concerns the refusal by an Employment Tribunal to allow the Respondent to produce a bundle of 61 pages on the day of the hearing and the consequences said to flow from that in relation to the assessment of compensation for unfair dismissal.

2. We will refer to the parties as Applicant and Respondent.

Introduction

3. It is an appeal by the Respondent in those proceedings against the decision of an Employment Tribunal sitting at Exeter, Chairman Mrs C M Christensen, registered with Extended Reasons on 28 November 2003. Representation in this case was important. The Applicant was represented by Mr Ted Sandall of Torbay Citizens Advice and the Respondent by Mr P Knapton, its Office Manager. The Applicant claimed unfair dismissal. The Respondent denied the claim. The Tribunal upheld the Applicant's contention, found he was unfairly and wrongfully dismissed and ordered the Respondent to pay him £17,412.

4. The Respondent appeals against that decision on a single ground which relates to the conduct of the hearing. Directions sending this appeal to a Preliminary Hearing were given in Chambers by Mrs Justice Cox. When the case came on for Preliminary Hearing before us, Mr Martin West, Consultant, appeared for the Respondent and agreed to our suggestion that we adjourn the hearing, the papers be referred to the Chairman for her comments, which would be then sent to both parties and the Preliminary Hearing be resumed on paper. Comments have been received from the Chairman and both parties and written submissions in opposition to the Preliminary Hearing were also submitted pursuant to Mrs Justice Cox's Order.

The Facts

5. The Applicant was employed as a Team Leader Environmental Engineer by the Respondent which is engaged in Water and Ventilation Maintenance Services. It had very limited HR support, given by Mr Knapton. The Applicant was engaged for four years eight months until he was dismissed. His work was entirely satisfactory although paperwork was not his strong point. The Respondent began to be concerned about paperwork of all its workers and called a meeting on 23 June 2003. There is a disciplinary procedure which contains elementary safeguards.

6. On 27 June 2003 the Applicant was dismissed for gross misconduct. The Tribunal said this:

“10 …In taking this decision on 27 June, we find that the Respondent failed in almost every respect to follow its own disciplinary procedure and where there is any conflict between the Respondent and the Applicant regarding whether or not meetings took place, we prefer the evidence of the Applicant where such conflicts exist. The applicant was at all times a very credible witness and the respondent's evidence was obscure and unclear.

11 We also note the procedure adopted in fact by the Respondent to dismiss the applicant is incompatible with normal standards of good practice in relation to discipline found in the ACAS code on Disciplinary Procedures.

12 The Applicant was summarily dismissed on the 27 June. This was preceded by an informal chat on the 23 June in which the Applicant was warned to ensure that his paper work was more fully completed in the future. We find that although a verbal warning was issued after this meeting the Applicant had no knowledge before this informal chat took place that it was to be convened as disciplinary hearing.

13 Secondly the Applicant was warned on the 25 June which warning was not preceded by any meeting and which warning the Respondent expressed to be a final and third warning. In relation to this warning we listened to the Respondent's explanation for moving to a final and third warning at this stage and we are not satisfied that there was any reasonable or legitimate reason to have done so.

14 Thirdly on the 27 June the Applicant was summarily dismissed with no proper notification under the procedure in relation to the meeting at which he was dismissed and we also note that the final act for which he was dismissed amounted to nothing more than a failure to enter administrative details regarding the time at which various jobs finished on his job sheet.”

7. The Tribunal found there was nothing in the Respondent's arguments which could amount to gross misconduct and so the Applicant was both unfairly and wrongfully dismissed. The procedure was wholly inadequate. The decision to dismiss him was unfair and not one which would have been taken by a reasonable employer. If the Applicant had been given an opportunity to put forward his explanation, he would not have been dismissed. The Tribunal found that the Applicant with a lifetime's service in one industry would have difficulty getting himself back into work and ordered the future loss, 9 months, to be paid.

The Respondent's case

8. The Respondent's case is that the Tribunal wrongly refused to allow it to adduce a bundle on the day of the hearing, additional to those papers which had already been exchanged. Had those documents been introduced, they would have shown that the Applicant's poor record meant that he would have been dismissed at some stage in the future and the Tribunal was wrong to order 9 months' future loss.

The Applicant's case

9. It is contended in written submissions on behalf of the Applicant that the Tribunal was correct in refusing to admit the documents and in any event there was nothing in them which would require a different decision to be made. An agreed bundle was made in accordance with bespoke directions made by the Employment Tribunal.

Conclusions

10. We have come to the conclusion that no error occurred at the Employment Tribunal. We accept the arguments of the Applicant that directions were given to the Respondent to prepare the documentation needed at the hearing. An Order had been made on 6 August 2003 to provide a single agreed bundle and this was a breach of the Order. The Chairman's notes indicate that there was no explanation for the Respondent's failure to comply. The oral Order made by the Chairman on behalf of the Tribunal was that the documents would be excluded unless they were relevant to an issue. No explanation is recorded in the Chairman's notes as to why the Respondent thought the documents were relevant.

11. It seems to us this is ordinary case management. Sensibly, in advance of the hearing, orders were given for the production of documents which the Respondent did not follow. It was open to the Tribunal to allow the material and we cannot see any error in principle in its decision as to the way in which this case was to be managed.

12. However, the Applicant's case goes further and indicates that there was no material in the documents which could have affected the Employment Tribunal's decision since the central relevant issues where the three warnings given in June 2003, all of which are the subject of the Tribunal's findings (cited above). Even if there were any valid criticism of the Tribunal's decision to exclude the bundle, as a matter of substance we accept the Applicant's contention that any material relevant to the assessment of compensation was before the Employment Tribunal. Given the trenchant findings against the Respondent's substantive and procedural decisions to dismiss the Applicant, and its firm findings that the Applicant's performance was satisfactory, it could not be said that the Tribunal did not have the Applicant's record in front of it or that it overlooked it when deciding on the future losses. We would like to thank Mr West for his submissions and Mr Sandall for his submissions in writing. The appeal is dismissed.

Guidance

13. We are grateful to the Chairman for producing her extract from her notes so as to inform us of the reasons for the refusal of the documents. We see the decision made by the Tribunal as normal case management. When such a decision is made after contested submissions, reasons should be given. It would be quite satisfactory for these to be included in reasons given orally or in writing for any judgment at the Hearing since it is effectively a judgment on a contested procedural issue.