Appeal No.	 	EAT/1287/98  
			EAT/1480/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 November 1999

Before
HIS HONOUR JUDGE WILKIE QC
MR L D COWAN
MRS M T PROSSER

SYNSEAL EXTRUSIONS LTD	APPELLANT

MR T PAGET	RESPONDENTS

Transcript of Proceedings

JUDGMENT

FULL HEARING

Revised

	APPEARANCES

For the Appellant	Mr A Bishop (of Counsel)
Instructed by:
Browne Jacobson
44 Castle Gate
Nottingham
NG1 7BJ	
For the Respondents	IN PERSON	

JUDGE WILKIE:
1	This is an Appeal by Synseal Extrusions Ltd against two decisions of the Nottingham Employment Tribunal arising out of a dismissal by them of Mr Paget on the 13 September 1996, for a reason which it said was gross misconduct namely the theft of its property.  

2	The matter came before the Tribunal on three separate occasions.  On the first occasion there was a finding on liability that Mr Paget had been unfairly dismissed.  That arose out of a hearing on the 19 May 1998, the decision being dated 10 June 1998.  In effect that was a finding of unfair dismissal on the basis that the Appellant had not followed its own procedure, had not done sufficient investigation, and therefore on those essentially procedural grounds the finding was that Mr Paget had been unfairly dismissed.  The Appellant does not seek to Appeal against that decision.  

3	The second decision was a remedies hearing which resulted in a decision of the Tribunal dated 9 September 1998.  That Tribunal hearing concerned the application by the Appellant to the effect that the awards made to Mr Paget, whether by way of a basic or a compensatory award, should be reduced to nil.  The Tribunal rejected that application and went on in its third decision to calculate the award on a 100% liability basis.  That second and third decision are each of them the subject of this Appeal.  

4	Mr Bishop of Counsel appears for the Appellant today.  Mr Paget appears in person as he did throughout.  Mr Bishop wasn’t the Counsel who was instructed to appear on behalf of the Appellant before the Employment Tribunal.  It appears from what he has said, that the Appellant was seeking to have the awards reduced on two cumulative grounds.  The first was under the “Polkey” principles to the effect that, the unfairness being by reason of procedural matters only, it sought to establish that, on the evidence which emerged shortly after the dismissal, had a proper procedure been adopted, Mr Paget would have been fairly dismissed, either on 100% basis or on a lesser proportion.  

5	It is clear to us on reading the second decision of the Employment Tribunal, that the Tribunal rejected this argument and it seems to us that it was right to do so.  What they were being invited to do was to engage in an exercise of total speculation on what may or may not have happened, very shortly after the dismissal and therefore on the basis of a small amount of additional evidence, over and above that which the Appellant had available when Mr Paget was unfairly dismissed.  Insofar as this appeal seeks to resurrect that particular argument, we make it clear that we reject that ground of appeal.

6	It is clear from what Mr Bishop has said, and from the second decision of the Tribunal, that the Appellant also sought at that stage to argue that, pursuant to the power in the Tribunal given under the Employment Rights Act 1996  by section 122 in respect of basic award and 123 in respect of the compensatory award and in light of the evidence which was placed before the Tribunal on the second occasion, the Tribunal should conclude on the balance of probabilities that Mr Paget had, by his conduct, so caused or contributed to his dismissal, that the amount of the awards should be reduced to nil.  In that respect the Appellant sought, and were permitted, to adduce evidence, which became available shortly after the dismissal and several months thereafter.  In effect, the Appellant sought to persuade the Tribunal that it should be satisfied on the balance of probabilities that Mr Paget was involved in a conspiracy to act dishonestly as far as the Appellant and their property was concerned.  On that basis, it was argued, it would not be just and equitable to make any award at all to Mr Paget.  Plainly on either side the issues involved were extremely serious as the Tribunal was being invited to form a view in a public forum as to Mr Paget’s honesty or dishonesty in the events leading up to his dismissal.  

7	The Appellant did not approach that task lightly.  It called to give evidence live before the Tribunal two persons, Mr Ian Thornton and Mr Draycott, each of whom had been employed by them up until the 13 September 1996, and each of whom had been dismissed for their admitted involvement in the dishonest conspiracy which undoubtedly had occurred in respect of the Appellant’s business.  

8	Each of those person’s gave evidence on oath before the Tribunal.  Having been brought to the Tribunal under compulsion of witness orders.  That evidence was to the effect that Mr Paget had been involved as one of the conspirators in that dishonest conduct.  In support of the truth of what they were saying, the Appellant sought to rely on previous consistent statements made by Mr Thornton and Mr Draycott at various times, and on various occasions.  

9	In the case of Mr Thornton, it relied on a statement which he had made to the Appellant in the course of an interview, held on the afternoon of the 13 September 1996, at a time prior to his, Mr Thornton’s, dismissal but after Mr Paget had already been dismissed.  In that statement Mr Thornton unequivocally involved Mr Paget as one of the conspirators and indicated that he, Mr Thornton, received relatively small amounts of money for giving them assistance.  Mr Thornton in addition made two statements to the Police in connection with criminal proceedings.  The first was made on 1 February 1997.  That was a document presented to the Tribunal.  In that statement he indicated that there was more than one driver involved in the conspiracy, he named one of them, not Mr Paget, but in a subsequent statement a few days later on the 4 February, he identified the person whom he had previously not named in his first statement, as being Mr Paget.  That statement also was before the Tribunal.  

10	Mr Draycott also had, in support of his account of the matter, placed before the Tribunal the records of what he had said in the past.  First there was a statement made to the Appellant on the 7 October 1996, that is to say some few weeks after Mr Paget had been dismissed.  In that he is recorded as admitting his liability in the matter.  He was asked who else was at it and he said, “only those you know about”.  At that stage the state of the Appellant’s knowledge was that they “knew about” Mr Paget because he had, a few weeks before, been dismissed, precisely because of his alleged involvement in these matters.  That document was placed before the Tribunal.  

11	In addition Mr Draycott had made two witness statements to the Police.  The first was dated 10 February 1997.  In that statement he named one person, not Mr Paget, but indicated that there was another person involved.  In a further statement to the Police, dated 21 March 1997, Mr Draycott stated that the person who he had not named in his earlier statement was Mr Paget.  

12	That was the evidence placed before this Tribunal, on the basis of which the Appellant sought to persuade the Tribunal in the balance of probabilities that Mr Paget had been involved in the dishonesty and therefore had contributed to or had caused his dismissal at maximum 100%, so as to reduce his entitlement to an award, on the just and equitable principle. This was an extremely serious issue. The evidence before the Tribunal was in the form of evidence given on oath, statements made to the police carrying with it a statutory warning, in the case of Ian Thornton a contemporary statement involving Mr Paget, and in the case of Mr Draycott a statement made within weeks.  One would have hoped and expected that the Tribunal would have considered it very carefully.  If the Tribunal was not persuaded by that body of evidence, one would have hoped and expected it to have set out carefully and accurately the reasons why it rejected that evidence.  

13	We have been addressed today by Mr Paget carefully and seriously he has put forward a number of reasons why the Tribunal might have decided to reject those statements as being statements made by persons who, at various times, had their own interests to pursue.

14	Unhappily we look in vain in the decision for any such careful and serious consideration, of this evidence and the reasons for its rejection.   What we do find, unfortunately, are few reasons given for not accepting the evidence of Mr Thornton and Mr Draycott and, such of them as are to be found in the decision, unfortunately appear to be based on misconceptions.  In particular, doubt appears to be cast on the veracity of Mr Thornton when he identified Mr Paget as the other person, in the two successive police statements to which we have referred.  But there is nowhere any mention of or consideration of the fact, that this was not the first occasion when Mr Thornton had named Mr Paget, and that he had named him as early as 13 September 1996.   Thus the point that appears to be made in the reasoning of the Tribunal that Mr Thornton did not get around to naming Mr Paget until several months later is simply factually misconceived.  As far as Mr Draycott is concerned the point is made by the Tribunal, that in his interview with the Appellant Mr Draycott doesn’t name Mr Paget and therefore he did not get around to naming him specifically until the 21 March 1997.  Once again that appears to be based on a misunderstanding of the sequence of events.  It is clear from looking at the history of the matter, that when Mr Draycott is reported as saying on the 7 October that the others who were at it, “were only those you know about”, at that stage Mr Paget had already been dealt with by the Appellant.   They plainly “knew” that he was one of those involved.   That comment on a fair and true reading of it must refer to Mr Paget amongst others. 

15	Those were the only points made by the Tribunal in purporting to disbelieve Mr Thornton and Mr Draycott on oath.  There were reasons and no doubt are reasons which may be put forward which might cast doubt upon the veracity of Mr Thornton and Mr Draycott. Unfortunately those potentially substantial and substantive reasons, if they were those which persuaded the Tribunal, do not find their way into the decision. The reasons which did are both thin and on any view, are factually misconceived.  

16	It therefore follows that this very serious matter, with serious implications both for Mr Paget and the Appellant has been decided on a wholly unsatisfactory basis and this Appeal must succeed.  This is not a case where, on the material that has been placed before us, we can form a view whether any reasonable Tribunal properly approaching the evidence would find one way, or the other on this issue.  But what we do find is that this particular Tribunal, making this particular decision, plainly misunderstood the evidence that was placed before it, and its reasons are manifestly and fundamentally flawed.  Therefore it is our judgment, very unfortunately, that this decision simply cannot stand, and therefore we allow this appeal.  

17	The question which arises, however, is whether we have before us sufficient material which would enable us to substitute our judgment for that of the Tribunal.  We have thought long and hard about this.  This is quite a long standing matter.  If it goes back to a differently constituted Tribunal, the evidence will have to be gathered together again.  It may be that witnesses will have to be brought to the Tribunal to give evidence.  It will mean some substantial delay in the matter being relisted.  That is a matter of cumulative inconvenience which ought to be avoided if at all possible.  

18	This is a matter which concerns a statement by a public quasi-judicial body touching on the honesty or otherwise of Mr Paget.  We have not seen or heard either Mr Thornton or Mr Draycott giving evidence.  We have not taken evidence from Mr Paget.  In our judgment justice can only be done as between the contending arguments, by a body which has the opportunity to see those who are called to give evidence on these issues, to see them subject to cross-examination, and to have the opportunity to question them themselves.  We do not have that opportunity and it would be quite wrong for us to attempt to second guess a Tribunal having all of those advantages.  

20	Therefore, although we understand that it is extremely inconvenient for both sides and will result in justice being further delayed, we feel that we have no option but to remit this matter to a differently constituted Tribunal to hear the question of Mr Paget’s remedies arising out of his unfair dismissal.  Any arguments which the Appellant might make to reduce the otherwise available award of compensatory and basic award on either of the grounds set out in Section 122 and 123 of the 1996 Act will be considered by that Tribunal on the evidence before it.