Appeal No. EAT/521/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 16 September 1994

	Before

	THE HONOURABLE MR JUSTICE FRENCH

	MR K M HACK JP

	MR W MORRIS

MR M D WILLIAMS	APPELLANT

SHICO (UK) LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR N DEAL
(Of Counsel)
Messrs Smeath Mann & Co
45 Sheep Street
Northampton
NN1 2NE

For the Respondents	MR T KERR
(Of Counsel)
Messrs Courts & Co
15 Wimpole Street
London
W1M 8AP

	MR JUSTICE FRENCH:  As may be inferred from the length of our retirement, the Tribunal finds itself in difficulty in deciding this matter, a difficulty which depends in large measure upon the fact that we do not know what, put at its highest, Mr Gandolfi, if called would say.  

	Accordingly, we consider that we must see the affidavit of Gandolfi and that will assist our decision on this preliminary point and I think that any suggestion that this Tribunal might be prejudiced by anything that appears in the affidavit is one which we would reject.  

	We are grateful to counsel for the able way in which they conducted their respective arguments before us.

[The affidavit of Mr Gandolfi was handed up and the Employment Appeal Tribunal considered it].
	This is an appeal from a decision of the Industrial Tribunal, sitting at Bedford.  The decision is dated 1 April 1992 and reads as follows:

"The unanimous decision of the Tribunal is that Mr Williams was not unfairly dismissed.  This case is therefore dismissed".

	Two points are raised before us.  The first is that the decision was perverse in that while holding that the dismissal was not unfair the Industrial Tribunal, in their reasons said that the employer should have dismissed, not summarily as they did, but on notice.

	The Appellant concedes before us that this first point is wrong in law and we need say no more about it.  The second point is whether the Employment Appeal Tribunal should give the Appellant leave to adduce evidence not before the Industrial Tribunal, and should remit the matter to the Industrial Tribunal for consideration by a differently constituted Tribunal. 

	It is common ground that evidence not adduced to the Industrial Tribunal can only be received if the following conditions are met.  Those conditions are first, the evidence could not have been obtained with reasonable diligence for the use of the Tribunal.  Secondly, the evidence would probably have an important influence on the result of the case and thirdly, that the evidence is apparently credible.

	In our judgment two of those conditions are met namely one, that the evidence could not have been obtained with reasonable diligence for the use of the Tribunal and thirdly, that the evidence is apparently credible.  The second however, is not in our judgment fulfilled.  The evidence in question would not, we consider, probably have had an important influence on the result of the case.

	The factual background to the Industrial Tribunal hearing and to the hearing before us, is to be found set out in paragraphs 1 to 5 inclusive of the Industrial Tribunal's reasons.  We see no point in reading them in extenso.  To avoid further expenditure of time and paper we incorporate paragraphs 1 to 5 inclusive into this decision by reference.  To the same end, we will append the evidence which the Appellants wish to tender as appendix 1 to this decision.

	We consider that the identity of the supplier of the tape with adhesive on both sides was properly a trade secret.  The supplier was called Tangent.  Tangent, following research and experiment by the Respondents, proved to be the only suppliers of such material as met their requirements.  

	Tangent were not told by Mr Katan, the Respondents's director, the purpose for which the tape was required when the Respondents ordered the material from Tangent.  Tangent did indeed supply adhesives to industry generally, but the Respondents were the only customers of theirs who were shoe manufacturers.  That is, until Gandolfi entered into the market as competitors of the Respondents, rather than as, until then, distributors of the Respondents' ballet shoes.  True, Mr Gandolfi had discovered the secret of Tangent's identity by a lucky chance.  Before doing so he had, perhaps wisely, discarded the idea of trying to get from Mr Katan the name of the suppliers.  But that does not have the consequence, assuming that Gandolfi's evidence be accepted, that the secret was not in the eyes of Mr Katan, still a secret.  There is nothing to suggest that on 22 and 23 August, the dates relevant to the dismissal, Mr Katan knew that Gandolfi had discovered the secret, nor was there anything to suggest that Gandolfi would have divulged the secret (now known to two manufacturers) to other manufacturers.  It would not have been in Gandolfi's interests to do so.

	The Industrial Tribunal had reason to doubt the reliance properly to be placed on the evidence of the Appellant.  The Appellant said, at the meeting which ended in his receiving his letter of dismissal, that he wanted the material for a garment dance wear manufacturer who was not a competitor, and added that it would have been easy for him to find out the name of the supplier by asking the driver of the van.  

	The Industrial Tribunal took that as an admission that the Applicant had asked for the source of the material and that the passage just referred to was his alleged motive in asking for the information.  However, Mr Williams said in his evidence to the Tribunal, that what he had said at that meeting about the purpose for trying to discover the identity of the supplier of the material had been a mistake; that he should have said that it was needed for chairs, and that the material was not for himself but was for a friend and that friend was his sister, and that his sister had a project for making chairs which would, in some way, assist handicapped people.

	The Industrial Tribunal were entitled and still would be entitled to ask why the Applicant should not have given a straightforward and credible answer if his conscience in the matter had been clear.  However that may be, we do not consider that the second pre-condition to the admission of fresh evidence is fulfilled.

	Nothing in Mr Gandolfi's affidavit goes to diminish the force of the Respondents' case or to increase that of the Appellant.

	This appeal is dismissed.