United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Ms Rachel Chambers (of Counsel) Instructed by: Messrs Archer & Archer Solicitors Market Place Ely Cambridgeshire CB7 4QN
For the Respondent	Ms Sian Scanlon (In House Legal Assistant) East Cambridgeshire District Council The Grange Nutholt Lane Ely Cambs CB7 4PL


 


Summary

Unfair dismissal – Reasonableness of dismissal

Practice and Procedure – Admissibility of evidence

Total exclusion of evidence relating to final written warning inextricably linked with sanction of dismissal following further act of misconduct. Wrong exercise of discretion, applying Wednesbury principles. Observations on exercise of case management powers of ET.


 


HIS HONOUR JUDGE PETER CLARK

1. This case is presently proceeding in the Bury St Edmund's Employment Tribunal. The parties are Mr Digby, Claimant, and East Cambridgeshire District Council, Respondent. We shall so describe them. The appeal before us is brought by the Claimant against a procedural ruling made in the proceedings by a full Employment Tribunal chaired by Mr Jeremy Cole sitting on 17-18 July 2006. That ruling, promulgated in the form of a Judgment with reasons, is dated 27 July 2006.

Background

2. The Claimant commenced employment with the Respondent as a planning officer on 17 February 2003; he was promoted to senior planning officer on 9 June 2003. In late 2004 he became the subject of the Respondent's informal capability procedure and on 14 January 2005 an internal preliminary hearing took place concerning the Claimant's capability and allegations of misconduct in the form of inappropriate behaviour towards female members of staff. A disciplinary hearing into the latter allegations took place before Mr Archer, Executive Directive Development Services, following which he was given a final written warning in respect of those matters, said to amount to sexual harassment. On 16 February the Claimant appealed that final warning. Before the warning appeal was heard the Claimant attended a routine planning inspection on 28 February, following which the planning applicants, Mr and Mrs Fox, supported by their representative, Mr Loveday, made a formal complaint to the Respondent that the Claimant had made inappropriate comments, belittling the council and other planning officers. On 15 March a preliminary hearing took place regarding the Fox incident and on 18 April his appeal against the final warning imposed by Mr Archer was heard. At that hearing he was represented by a union representative, Mr Hendrick. The appeal was dismissed.
3. On 20 July 2005 the disciplinary hearing concerning the Fox incident took place. It was conducted by Mr Archer. The Claimant was unrepresented. Following that hearing Mr Archer wrote to the Claimant on 22 July 2005. It was a letter of dismissal. Mr Archer there said:

"The reason for your dismissal is a further breach of conduct in relation to the manner in which you conducted yourself at a meeting with a member of the public on 28 February 2005, less than four weeks after you received your final written warning."

The Claimant appealed that dismissal decision. This second appeal was heard by a panel consisting of councillors. The management case was represented by Mr Archer. The Claimant was again unrepresented. The appeal was dismissed.

4. On 2 November 2005 the Claimant presented his claim of unfair dismissal to the Employment Tribunal. As to the Employment Tribunal rightly identified at para. 3 of their Reasons, the core reasons for asserting that his dismissal was unfair were the Respondent's actions in:-

(a) imposing upon him a final written warning on 4 February 2005,

(b) relying upon the consequences of that warning in taking the step of dismissal on 20 July 2005,

(c) regarding the matter for which the claimant was dismissed on 20 July 2005 as amounting to misconduct and/or misconduct justifying dismissal.

The claim was resisted by the Respondent and initially came on for hearing before an Employment Tribunal, also chaired by Mr Cole, listed for 2 days on 29 March 2006. On that occasion the Employment Tribunal informed the parties that 2 days was insufficient time to dispose of the case; it was adjourned to be relisted for a 5 day hearing. We are told that the procedural issue with which we are concerned in this appeal was not raised by the Employment Tribunal on that occasion.

5. The matter returned for a 5 day hearing commencing on 17 July. As the Employment Tribunal put the point at para. 4 reasons:-

"At the outset today, we were occupied upon ground 4(b) [see above] namely whether it was appropriate, as the claimant's evidence suggests, for the circumstances of a final warning imposed on 4 February 2005, arising from allegations of sexual misconduct, to be re-opened today."

As further appears from their reasons the Employment Tribunal heard full arguments as to the admissibility of evidence relating to the final warning imposed on 4 February 2005 and ruled it inadmissible. That ruling was couched in these terms:-

"We are not content that his case proceeds before us as Ms Chambers says it should, including evidence as to the reasonableness or otherwise of the first and final written warning given by the respondent to Mr Digby on 4 February 2005."

6. The Employment Tribunal having given that ruling, with reasons, orally on the first day of the hearing, on the second day the substantive hearing of the claim below was adjourned on the Claimant's application pending our determination of the appeal. We shall consider the reasons given by the Employment Tribunal for its ruling when dealing with the Claimant's grounds of appeal.

The Appeal

7. We should deal first with a general point of principle raised by Ms Chambers. Ms Scanlon acknowledges that the point is an important point of law, but submits that this is not an ideal case for a ruling to be made by the EAT. The question raised by Ms Chambers is whether a party appearing before an Employment Tribunal has an indefeasible right, as it is put in her grounds of appeal (para. 9), to require the Employment Tribunal to listen to and examine evidence which is of relevance, or whether the Employment Tribunal has a discretion to exclude some or all of the evidence.
8. The point is not free of authority. In Rosedale Ltd v Sibley [1980] ICR 816, an Industrial Tribunal ruled that a document sent by a Union District Secretary to head office claiming dispute benefit for the Claimant and other employees of the Appellant employer; although admissible in evidence at common law, would not be received into evidence because its prejudicial effect on those employees it did not affect outweighed its probative value in other cases. The issue in the case to which the document was relevant was whether the Employment Tribunal's jurisdiction to hear claims of unfair dismissal was excluded because the Claimants were dismissed while on strike, the position then being governed by s 62 Employment Protection (Consolidation) Act 1978.
9. On appeal the EAT ruled that the document ought to have been admitted in evidence. The primary basis for decision appears in the judgment of Talbot J (P.822 A-B) where he said:-

"But that leaves a matter of some importance to be decided, whether that gives a discretion to an Industrial Tribunal to refuse to admit evidence which is otherwise admissible and prerogative. In our judgment there is no such discretion in an Industrial Tribunal to refuse to admit evidence which is admissible and prerogative of one or more of the issues before it. That opinion has sufficiently disposed of this appeal because in our judgment the Industrial Tribunal were wrong in law in holding that they have a discretion to refuse to admit such evidence and in so refusing to admit it."

10. His Lordship then went on to hold, in the alternative, that if the Employment Tribunal had a discretion to exclude the document that discretion was wrongly exercised in law in the circumstances of that case.
11. The bald statement of principle in Rosedale has been the subject of subsequent doubt in later cases in the EAT (it has not, so far as we are aware, been the subject of direct consideration by the Court of Appeal). In Snowball v Gardner Merchant [1987] IRLR 397, Kilner Brown J (para. 11) doubted the validity of the proposition in Rosedale that an Employment Tribunal has no power to exclude evidence which is admissible, without needing to determine the point in that case. Similarly, in Krelle v Ransom [2006] AER (D) 166 Langstaff J (paras 21-24) considered both earlier case and expressed the view, again not necessary for the decision in that case, that since the introduction of the overriding objective into the Employment Tribunal Rules of Procedure since 2001; there was no indefeasible right of a party to require the Tribunal to examine evidence which is of relevance, but may in the proper exercise of its discretion, exclude evidence which, although strictly relevant, is of peripheral relevance or is, for instance, repetitive.
12. Since the point is raised directly in the present case we shall decide it. In our judgment the approach taken by Langstaff J in Krelle is correct. A Tribunal has a discretion, in accordance with the overriding objective, to exclude relevant evidence which is unnecessarily repetitive or of only marginal relevance in the interests of proper, modern day case-management. However, that discretion must be exercised judicially. It may properly be challenged on appeal on Wednesbury principles. The guiding principle is to ensure justice between the parties. Returning to Rosedale, we have no doubt that that case was correctly decided in the EAT on the alternative ground that, on the facts of the case, the Tribunal was wrong to exclude the document in question applying Wednesbury principles, expressly referred to by Talbot J at 822 D. An example of a case in the Court of Appeal in which it was held that a Tribunal was wrong to exclude relevant evidence which a party wished to call on a critical issue, the employer's reason for dismissal, is to be found in ALM Medical Services Ltd v Bladon [2002] IRLR 807. The position was stated by Mummery LJ (para. 15) as follows:

"A party is entitled to adduce evidence relevant to the issues in the case and to put questions on relevant matters to the other party and to his witnesses. It is for the Tribunal, with the assistance of the parties and their representatives, to identify the relevant issues for decision and to exercise its discretionary case management powers to decide whether the evidence adduced or the questions put to the witnesses in cross-examination are relevant."

13. That brings us to the alternative way in which the appeal is put by Ms Chambers; that if, as we have held, the Employment Tribunal had a discretion to exclude evidence relating to the final written warning in this case, its exercise of discretion to do so was wrong in law.
14. In deciding that question we begin by looking at the circumstances in which it may be relevant to hear evidence on the circumstances surrounding the giving of a warning or warnings prior to dismissal. The Tribunal in this case was referred to the Scottish EAT judgment given by Lord McDonald MC in Stein v Associated Dairies Ltd [1982] IRLR 447.
15. At para. 8 of their reasons this Employment Tribunal cited one sentence from the judgment of Lord McDonald at para 8 of his judgment:-

"Certainly if there is anything to suggest that the warning had been issued for an oblique motive or if it was manifestly inappropriate, that is a matter which a Tribunal could take into account…"

The next sentence in that judgment, not referred to by the Employment Tribunal reads:-

"There is nothing however in the present case to suggest that the evidence disclosed anything of this nature."

16. It should be appreciated that, unlike the present case, there was no exclusion of evidence about the warning given to Mr Stein. The Employment Tribunal heard the evidence and, the EAT accepted, that evidence did not suggest any oblique motive or that the warning was manifestly inappropriate.
17. What seems to have struck Mr Cole's Tribunal is that there was no 'essential ingredient' (reasons para 17) such as to trigger an enquiry as to the circumstances of the warning given in this case. We accept Ms Chambers submission that that is an approach which has no basis in law. More importantly, the reason given by the Tribunal for finding that the warning was not inappropriate or administered for an oblique motive was, in our judgment, to use the language of Wednesbury, an irrelevant factor, namely, that after his internal appeal against the final warning was dismissed, the Claimant then took no further steps to express his disquiet with that warning. Ms Scanlon has referred us to the Respondents disciplinary procedure (Core Bundle P.95), which makes clear that the decision of the appeal hearing is final. There was nothing further for him to do. The fact that his Trade Union representative had no complaint to make about the process (reasons para 18; on this aspect we reject Ms Chambers interpretation of that paragraph and prefer that advanced by Ms Scanlon) is nothing to the point. The matter was closed internally. Ms Scanlon submits that it was open to the Claimant to resign and complain of constructive dismissal on the basis that the issuing of the warning amounted to a repudiatory breach of contract of employment. True, that course was open to him; see BBC v Bechett [1983] IRLR 43, cited by Mr Recorder Langstaff QC in Stanley Cole (Wainfleet) Ltd v Sheridan [2003] IRLR 52, para 68, a case to which we have been referred, but it would be quite wrong, in our judgment, to deprive a Claimant of the opportunity to challenge a final warning which was integral to the eventual sanction of dismissal in a direct unfair dismissal case on the basis that he had not immediately given up his employment and complained of constructive dismissal.
18. In these circumstances we have concluded that the Tribunal's ruling, on a point of admissibility raised by the Tribunal itself and not by the Respondent, is a rare example of a discretion exercised impermissibly in law. It is based on an irrelevant consideration and is manifestly wrong as a matter of fairness between the parties. By excluding all evidence relating to the warning the Tribunal was effectively preventing the Claimant from advancing his case of unfair dismissal. It went to a highly material issue in the case, the reasonableness of the decision to dismiss (see, by analogy ALM v Bladon).
19. However, that is not quite the end of the matter. Ms Scanlon makes the point, in a robust defence of the Tribunal's approach, that the Tribunal looked at the documentary material before it and concluded that it would be disproportionate to allow a substantial body of evidence to be led on this issue. That, she submits, was a permissible case-management decision. We have found that it was not, but, as a matter of principle, we have also concluded that it is open to a Tribunal, exercising its case management powers, to keep the evidence and cross-examination within reasonable bounds. If the point is reached during the hearing that, in this instance, the attack on the final warning is becoming prolix or tangential, then it is for the Chairman to reign back the exuberance of counsel and to control the evidence to that which is necessary to fairly determine the issues between the parties.

Disposal

20. We shall allow this appeal and rescind the direction given by this Tribunal, excluding evidence as to the reasonableness or otherwise of the final warning administered on 4 February 2005 altogether. That is not to say, as we have earlier indicated, that in reaching that conclusion we are seeking to fetter the proper exercise of the Employment Tribunal's discretion to manage the case during the substantive hearing.
21. As to that substantive hearing, which has yet to begin after 4 days of the Tribunal's time being devoted to the case this far, Ms Chambers invites us to direct that it be heard by a fresh Employment Tribunal. Ms Scanlon points out that Mr Cole's Tribunal has read into the case, and submits that it would be proportionate, baring in mind the costs incurred on both sides so far, for the matter to return to that same Tribunal.
22. We do not doubt the professionalism of the original Tribunal to hear and determine this case in accordance with our directions; however we are concerned that to remit to that Tribunal may give rise to a complaint by the Claimant of an appearance of bias if the matter were finally to be concluded in favour of the Respondent. We say that particularly in the light of comments, it is common ground between the representatives, which were made by the Chairman when Ms Chambers applied for the hearing to be postponed pending appeal on the second day. Taken out of context, remarks to the effect that this very experienced Chairman knew the Judges of the EAT including the President, Elias J and that he had never successfully been appealed, might give the impression that he would not be well-disposed to this Claimant if, as is now the case, he was the first litigant to dent that enviable record.
23. In these circumstances we shall direct that the substantive hearing before the Tribunal take place before a fresh Tribunal panel.