Appeal No. EAT/709/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 1 November 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR J C RAMSAY

	MR S M SPRINGER MBE

MR S N WAITE	APPELLANT

MULTILIFT LIMITED	RESPONDENTS
(NOW CARGOTEC UK LIMITED)

	Transcript of Proceedings

	JUDGMENT
	
	FULL HEARING

Revised

	APPEARANCES

For the Appellant	Mr Adrian Lyon
(Of Counsel)
Messrs Steggles & Mather
Crown Buildings
121A Saughall Road
Blacon
Chester
CH1 5ET

For the Respondents	Mr Damian Brown
(Of Counsel)
Mr Nicholas Chronias
Legal Adviser
Engineers Employment Federation
Broadway House
Tothill Street
London SW1

	MR JUSTICE MUMMERY (PRESIDENT):  This is an Appeal from the Decision of the Industrial Tribunal held at Shrewsbury on the 19th November 1992.  For Reasons notified to the parties on the 25th January 1993 the unanimous Decision of the Industrial Tribunal was that the dismissal of Mr Waite by Multilift Limited was unfair but Mr Waite had contributed to his own dismissal to an extent assessed by the Industrial Tribunal at 100%.

	Mr Waite was dissatisfied with that Decision and appealed by Notice of Appeal dated the 15th February 1993.  The complaint in the Appeal was that the Industrial Tribunal had reached the conclusion on a 100% contribution, without any prior suggestion from the Chairman of the Tribunal during the deliberations on the evidence and submissions that questions of remedy and contribution were being considered.  In his originating application presented to the Tribunal on the 19th October 1991, Mr Waite had claimed re-instatement. The basis for the further ground of appeal was that the issue of re-instatement had not been addressed at all by the Tribunal.  Mr Waite's representative had not been given any opportunity to address the Tribunal on that point or on compensation, prior to the Industrial Tribunal's Decision adverse to him.

	On those grounds, Mr Waite seeks on this Appeal, for reasons advanced by Mr Lyon on his behalf, to have this case remitted to the same Industrial Tribunal, which will then hear submissions on the questions of contribution and re-instatement.  The submissions presented by Mr Lyon correctly and inevitably start from the premise that he cannot dispute the findings of primary fact made in the Decision. 

	Any submissions which he wishes to make on a remission to the Tribunal would be based on those facts alone.  It is not proposed by Mr Lyon that any evidence would be given to the Tribunal, in relation to contributionor re-instatement, in addition to that which has already been heard by the Tribunal.

	The way in which the case is put is that it was an error of law on the part of the Tribunal, quite regardless as to whether there was to be any further evidence or not, to reach a Decision on re-instatement and contribution without giving an opportunity to Mr Waite's representative to make submissions on those issues.  In order to determine whether those are sound submissions, it is necessary to look a more closely at the Decision of the Tribunal. 

	Mr Waite complained that on the 18th September 1991, he was unfairly dismissed from his position as a military project engineer (design), with Multilift.  The defence put forward by Multilift in their Notice of Appearance dated 27th November 1991, was that, after commencing his employment with the company in 1988, Mr Waite was, on a number of occasions, absent without authorization and late for work.  There were disciplinary warnings in 1989, 1990 and 1991 for unauthorised absence and lateness.  The immediate reason for his dismissal was, that on the 17th September 1991 he was absent for half a day without authorization.  He was dismissed after a disciplinary interview.  His appeal against that decision was unsuccessful.

	The Tribunal examined the facts, in particular, the incident on the 17th September, which led to his dismissal.  The Tribunal found that Mr Waite's dismissal was unfair on procedural grounds.  In paragraph 8 of the Decision, the Tribunal stated that it was satisfied that there was a lapse on the part of the company in its procedure.  There was a disciplinary hearing of which Mr Waite was given due notice.  He was present.  He heard the major part of the allegations against him.  He was given an opportunity of being heard.  So far, so good.  But the procedure fell down because Mr Waite was not supplied with sufficient information and details about what was alleged against him.  

	The Tribunal looked at the evidence more widely and said this, in an important paragraph:

		"9.	During the course of what was a comprehensive hearing, the Tribunal had the benefit of taking evidence not only from Mrs Hall and Mr Waite but also from the Managing Director, Mr Eden and also from Mr Locker, the applicant's immediate superior.  The Tribunal was able to learn the full facts relating to the allegation of unauthorised absence and on the conclusion of the evidence, the Tribunal found as a fact that the evidence of Mrs Hall was greatly to be preferred to that of the applicant.  The Tribunal also found that in spite of some confusion with regard to the company's records with regard to warnings, nevertheless that was a substantial case for saying that here was an employee with an extremely bad record, as far as attendance and absences were concerned.  What also concerned the Tribunal was that literally fourteen days before the disciplinary meeting, this applicant had been suspended by his Manager without pay.  It was the sort of event which should have set the bells ringing in his mind to warn him that if he did not keep his ship in order in the future, the company would be entitled to take serious action against him.  It was with that background the applicant behaved in such an irresponsible way, by taking time off, without obeying what was a reasonable procedure.  It was a completely unauthorised absence, contrary to procedure and in the view of the Tribunal was a serious form of misconduct."

	The Tribunal went on to say that, in finding the dismissal unfair, they had come to a decision of a somewhat technical nature relating to the procedures adopted by the Tribunal for disciplinary matters, but, in dealing with the contribution question, the Tribunal was entitled to take into account all the circumstances, including subsequent circumstances which came to the fore after dismissal had taken place and the entire record of the employee during the last month or so before dismissal.  Having examined all those matters, the Tribunal came to the conclusion that the proper course was to say it was a case where contribution was as great as 100%.  

	The complaint is that, after hearing the evidence on which that decision was reached, and after hearing submissions from the representatives of each side, the Tribunal simply came back, announced their Decision, both on liability and remedy without hearing any submissions from Mr Waite's representative.  The Notes of Evidence, which have been supplied, show indeed that that is what happened.

	There was no application made by Mr Waite or on his behalf for a review of the Decision.  Such an application could have been made on the basis of the rule of procedure then in force, the [1985] Rules, under which the Tribunal has powers to review its decisions on various grounds.  Under Rule 10, the Tribunal could review a decision on the basis that the interests of justice require a review.  

	Instead, there was an Appeal. In order to succeed in an appeal to this Tribunal, however, it is not enough to show that the interest of justice require a different decision.  What has to be shown is that the Industrial Tribunal erroneously interpreted or applied the law. There must be an error of law.  In this case, it was submitted on behalf of Mr Waite that there had been an error of law.  The argument went this way.  No indication had been given to Mr Waite's representative that contribution and re-instatement would be considered at the same time as liability.  No opportunity was given to make submissions on the questions of remedy.  As a general proposition, if a Tribunal considers remedies, when either party reasonably believes that it is not yet under consideration and accordingly, may not have made submissions, there will be a failure of natural justice.  The consequence of a failure of natural justice is that there has been an error of law.  The Decision of the Tribunal would be unlawful.

	The main case on which reliance was placed was the Decision of this Tribunal in Ferguson v Gateway Training Centre Ltd [1991] ICR where it was observed by Mr Justice Wood at page 666, that, if it was intended to deal with compensation, and the Applicant might have sought either to call further evidence or to submit that he could not argue the question of compensation until he knew how the Industrial Tribunal was going to decide the question of liability, there might have existed a misunderstanding.  In such a case, an Applicant would submit that his representative had not been asked to address the Tribunal on the issue of remedy. 

	We agree that, as a general rule, a Tribunal is entitled to consider and decide liability and remedy separately.  It is a common course of procedure.  There may well be cases in which there is evidence relevant to remedy which has not been called or tested on the hearing on liability.  In such cases, it obviously is right for the Tribunal to proceed separately to deal with remedy, to hear the evidence and further submissions.  In many cases, where this course is adopted, the Tribunal will adjourn the question of remedy to be dealt with on a subsequent occasion, after each side has seen the Full Reasons given by the Tribunal for its Decision on liability.

	It is important to bear in mind, however, that questions of procedure are in the discretion of the Tribunal.  If that discretion is exercised in a way which is fair and not productive of injustice, actual or potential, there is no error of law by the Tribunal.  In the Rules then in force, and substantially repeated in the [1993] Rules, the Tribunal is entitled to regulate its own procedure.  It is provided by Rule 12 of the [1985] Rules, that subject to specific provisions, not relevant to this question, a Tribunal may regulate its own procedure.

	Under Rule 8, it is provided that the Tribunal shall conduct the hearing in such manner, as it considers most suitable to the clarification of the issues before it, and generally to the just handling of the proceedings.  We mention this, because it is the basis of Mr Lyon's submission that an error of law is always and automatically committed by a Tribunal which deals with remedy at the same time as liability, without indicating to the parties in advance that that is what they are going to do.  That is too sweeping a submission.  In order to see whether there is an error of law, the proper approach is to see what was in fact done, and to inquire whether the procedure adopted did bring about an injustice in the particular case, or carried with it a risk that an injustice may have been committed.  No hard and fast rule can be laid down that it will always be a breach of natural justice to proceed in the way in which the Tribunal proceeded here.

	We have reached the conclusion that we should not accept Mr Lyon's submissions.  We asked him to clarify whether any further evidence was to be called.  He tells us, No.  We asked him what submissions would in fact be made to the Industrial Tribunal if this were remitted, on an appeal being allowed.  He said, "Well, there would be largely emotional submissions, referring to the long period of service of Mr Waite, to his record as a good worker".  He would also wish to submit that it was wrong to place the entirety of the blame on Mr Waite, when it had been held by the Tribunal that the dismissal was unfair, because of the procedure adopted by the employer at the Disciplinary Tribunal.  It was he said, not right to say that Mr Waite was a 100% to blame, when there was some blame on the unfairness of the dismissal to be laid at the door of the employer.

	In our view, the Tribunal would not come to a different conclusion than a 100% contribution, on the basis of the facts found by this Tribunal, and on the basis of the submissions which Mr Lyon would wish to make to the Tribunal if it were remitted.  So far as "the emotional submissions are concerned, they should not sway a reasonable Tribunal.  The matter is to be looked at in the light of the evidence, not of the emotions.

	The position about contribution is laid down in Section 74(6) in relation to compensation awards and in Section 73(7B) in relation to basic awards.  The matter that the Tribunal has to look at is whether the dismissal was, to any extent, caused or contributed to by an action of the complainant, and if it was, then it reduces the amount of the award by such proportion as it considers just inequitable, having regard to that finding.  

	 We accept the submissions on behalf of Multilift Limited, that in this case, there was no error of law.  In his submissions Mr Brown pointed to the findings of fact made by the Tribunal, before coming to the conclusion as to 100% contribution.  He submitted, that looking at the facts of this case, there was no injustice or error of law in the course adopted by the Tribunal.  

	Mr Waite was legally represented throughout.  No inquiry was made as to whether the issues on liability or remedy were to be dealt with together or separately.  No review was ever asked for.   He pointed out correctly that there was no separate point to be made on re-instatement.  If 100% contributory fault was found, then re-instatement was simply out of the question.  More importantly, he pointed out that there was no more evidence to call and therefore there was no point in remitting for submissions, if we were satisfied that any submissions that could be made on the facts now would make no difference to the outcome.  
	He pointed out, as we have said, that failure to hear the parties does not amount to a breach of natural justice in every case.  It is necessary to look at the particular circumstances.  We have done that and we have come to the conclusion that in this case, no error of law has been committed in the procedure that was followed.  It has not produced an injustice, because the submissions which would have been made, if there had been a separate argument about remedy, would have made no difference to the result of the case.  

	No grounds have been shown for disturbing the Decision of the Tribunal.  The Appeal will be dismissed.