Appeal No. EAT/1448/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 April 2000

Before
HIS HONOUR JUDGE PETER CLARK
MISS C HOLROYD
MR A D TUFFIN CBE

MR A GITTINS	APPELLANT

PACKARD & ORD LTD, T/A MARLBOROUGH TILES	RESPONDENT

Transcript of Proceedings

JUDGMENT

FULL HEARING
Revised

	APPEARANCES

For the Appellant	MR N SMITH
(of Counsel)
Messrs Quiney Jaggar
Vectis Court
4 - 6 Newport Street
Old Town
Swindon
Wiltshire SN1 3DX	
For the Respondent	MR C HENSON
(Representative)
Regional Director
PPC Consultants Ltd
Enterprise House
Great North Road
Little Paxton
Cambs  PE19 4BQ	

JUDGE CLARK

1	This is an appeal by the Applicant before the Bristol Employment Tribunal, Mr Adrian Gittins, against that Employment Tribunal’s decision, promulgated with extended reasons on 6 October 1998, following a hearing held on 19 August and 9 September 1998, dismissing his complaint of unfair constructive dismissal brought against his former employer, the Respondent Packard & Ord Ltd trading as Marlborough Tiles.

The Facts
2	The Appellant commenced employment with the Respondent in February 1993.  At that time his father Mr Graham Gittins, was Production Manager.  Mr Gittins senior left the company in August 1997.

3	 On Mr Gittins seniors departure the Research and Development Manager, Rachel Haley acted up as Production Manager.  At that time the Appellant was Glaze Supervisor, a position to which he had been promoted in August 1995.

4	In early October 1997 Ms Haley called the Appellant in for a disciplinary hearing before the Managing Director, Mr Lethbridge.  He was given a verbal warning in respect of 2 principal matters:
(i)	that whilst off sick in August 1997 he had been seen walking about the town and 
(ii)	a suggestion that he had sabotaged a barrel of glaze.

5	The employment Tribunal found that there was no evidential basis for the latter allegation; as to the former, the Employment Tribunal accepted evidence given to them by the production foreman, John Sprules’ wife Janet Sprules, that she had seen the Appellant walking around the town during his sick absence in August.  We shall return to Mrs Sprules evidence later.

6	As to the warning itself the Employment Tribunal found that there were procedural defects on the part of the Respondents in that in breach of their own procedure the Appellant was not given a written copy of the verbal warning, setting out the reason for the warning, giving its duration and notifying him of his right of appeal.

7	In early November 1997 the Appellant was absent from work for about 2 weeks suffering from Pleurisy.  On his return he was allocated to work in a cold and damp basement.

8	He continued in that work until mid January when he was off sick for a few days.  He produced a self-certificate form stating that he was suffering from cold and flu like symptoms from working in a cold environment.  He was then signed off by his doctor for one week.  The doctors’ diagnosis was “soft tissue injury to chest wall and mild concussion.”  The Appellant was unable to tell the Employment Tribunal what had caused that state of affairs.

9	On 21 January 1998 he handed in a letter of resignation, giving as the principal reason his move to work in the basement.  He was not required to work out his notice.  In March 1998 he presented his complaint of unfair dismissal to the Employment Tribunal.

10	His case claiming constructive dismissal relied on 2 main features, cumulatively amounting, he alleged, to a repudiatory breach of the implied term of mutual trust and confidence entitling him to treat himself as discharged from the contract and they were first, that he was unreasonably disciplined in October 1997, demonstrating victimisation by Ms Haley caused by her earlier disagreements with his father prior to his father’s departure from the company.  Secondly, his transfer to work in the basement.

11	The Employment Tribunal, having acknowledged the procedural shortcomings attendant on the verbal warning administered in October 1997, concluded that whilst unreasonable warnings might amount to a breach of the mutual trust and confidence obligation, in this case the Respondent did have reasons for calling the Appellant in; their actions were not vindictive; the warning was not fundamentally flawed.  Indeed, they felt that the Respondent could have taken more serious action against the Appellant for being seen out and about whilst off sick.

12	Secondly, the Employment Tribunal was plainly exercised by the complaint that the Appellant had been transferred to work in the basement, particularly at a time when he was recovering from a bout of pleurisy.  However, they found that there were logical reasons for putting him there in order to correct problems in the mixing area in his role of glaze supervisor and that the Respondent was contractually entitled to move him around the factory.

13	Overall, the Employment Tribunal was not satisfied that the Appellant had established a fundamental breach of the implied term of mutual trust and confidence.  They expressly rejected his evidence that Ms Haley had conducted a vindictive campaign against him.  Further, they found that even if there was a fundamental breach of contract in moving him to the basement, he had affirmed the contract by continuing to work there form November 1997 until January 1998 without complaint.    Accordingly the application was dismissed.

14	Before the Employment Tribunal the Appellant was represented by Mr Gittins senior and the Respondent by its Managing Director, Mr Lethbridge.  It is apparent that there was some rancour between the 2 as a result of the circumstances in which Mr Gittins senior had left the company.  We have before us affidavit evidence from Mr Gittins senior as to the conduct of the proceedings and comments on that evidence from the Chairman.  The Respondent has chosen not to file evidence, that opportunity having been given at a preliminary hearing held in this case on 14 October 1999.

15	The real points, it seems to us, taken by Mr Smith in this appeal on behalf of the Appellant concern the conduct of the proceedings by the Chairman, Mr Colin Sara.  A further point in relation to the Employment Tribunal’s alternative finding that the Appellant approbated the contract does not materially effect the outcome of this appeal.  We consider it no further.  The principal submission is in relation to the evidence of Mrs Sprules.

Mrs Sprules
16	Prior to the first day of hearing the Appellant was unaware of the identity of the informant who had told the Respondent that he had been out and about whilst on sick leave in August 1997.  The identity of the informant only emerged during Mr Gittin’s cross-examination of Ms Haley on the first day of hearing, when she named Mrs Sprules.

17	At the end of the first day only Ms Haley had given evidence for the Respondent.  The Chairman then directed that the Respondent take witness statements from the remaining witnesses.  There was no direction for service of those witness statements on the Appellant prior to the resumed hearing on 9 September.

18	On the morning of the 2nd day, before the Employment Tribunal sat, Mr Gittins senior was shown a letter from the Respondent to the Employment Tribunal in which reference was made to “vital new evidence” which the Respondent wanted to introduce.  What that evidence was was not there revealed.
19	When the hearing resumed the Chairman allowed the Respondent to call that evidence.  It was the witness Mrs Sprules.  We interpose that in his witness statement, put before the Employment Tribunal, the Appellant contended that the person who had been seen out whilst he was sick in August 1997 was his brother and not him.

20	Mrs Spurles gave evidence to the effect that it was definitely Adrian whom she saw with his father.  There had been an altercation between their respective dogs.

21	In cross-examining Mrs Sprule’s Mr Gittins senior accused her of lying.  He did not seek an adjournment to call evidence which he now wishes to call to challenge the veracity of Mrs Sprules evidence in particular, the suggestion which she made in evidence that she knew it was Adrian because he looks like his mother.  In fact his mother lived 150 miles away in Stoke-on-Trent, having separated from Mr Gittins senior, and the Appellant seeks the opportunity if this appeal is allowed and the matter remitted for re-hearing, to call his mother to say that she had never met Mrs Sprules.

22	We accept that that evidence from Mrs Sprules may have had a material effect on the outcome of the case, not so much in relation to the merits of the verbal warning administered in October 1997, but on the issue of credibility.  We are satisfied that the Appellants evidence on the question of whether he was out and about during sick leave was plainly rejected on this issue (see paragraph 6 of the Tribunals reason).  That may have had a knock on effect, as Mr Smith submits, in other areas of credibility for example, whether or not the Employment Tribunal accepted the Appellant’s evidence that Ms Haley had victimised him.  They made a finding rejecting his evidence on that point.

23	However, the question in this appeal is whether there was here any procedural irregularity such as to vitiate the proceedings.

24	Mr Smith submits that there was.  The Chairman ought to have invited objections from Mr Gittins senior.  First, when the matter of the new evidence was first raised on the morning of the second day, and secondly, when Mrs Sprules gave her evidence.  Alternatively he ought to have been invited to apply for an adjournment so that he could call further evidence in rebuttal of that given by Mrs Sprules.  He did not do so.  Reliance is placed on the decision of this Appeal Tribunal in Aberdeen Steak House –v- Ibrahim [1988] ICR 550 and Hotson –v- Wisbech Conservative Club [1984] ICR 859.

25	In Ibrahim an application was made by Counsel for the Respondent employer to recall a witness in order to deal with a matter which arose during the course of evidence.  That application was refused.  On appeal the Employment Appeal Tribunal (Wood J presiding) held that although the Employment Tribunal has a wide discretion in conducting its own proceedings that discretion had to be exercised judicially and that in the interests of justice the Employment Tribunal ought to have allowed the Respondent to recall the witness.

26	In Hotson the Applicant employee was dismissed, ostensibly on the grounds of gross inefficiency.  That was the pleaded basis for the Respondent’s defence to her complaint of unfair dismissal.  During the course of the hearing it emerged that the Respondent’s case was that in fact the reason for dismissal was the Applicant’s dishonesty.  Without objection by the Applicant’s representative the case proceeded on that basis to a finding that the Applicant was dismissed for suspected dishonesty and that the dismissal was fair.  On appeal the Employment Appeal Tribunal (Waite J presiding) held that dismissal for dishonesty was such a serious matter that the Applicant ought to have been given a proper opportunity to deal with the allegation.  She was not and the decision of the Employment Tribunal was set aside.

27	We have carefully considered those cases; in Ibrahim an application to recall the witness was made and refused.  In Hotson, the nature of the change in the Respondent’s case was so radical that a proper opportunity to deal with the new case ought to have been given to the Applicant.  

28	In the present case, no application was made by Mr Gittins senior for an adjournment to call further evidence.  Nor did he object to Mrs Sprule’s giving evidence.  It is well established that an Appellant cannot rely on the inexperience of his representative who appeared below, Kunchyk –v- Derby City Council [1978] ICR 116; Mensah –v- East Hertfordshire National Health Service Trust [1998] IRLR 531.  Further there was no suggestion that in cross-examination Mr Gittins put to Mrs Sprules that she had never met his former wife  (compare Hotson where the new issue was plainly identified to the Employment Tribunal during the course of the hearing).

29	In these circumstances, whilst regarding this case as being close to the borderline of procedural unfairness, we are unable to conclude that the Chairman, in conducting the proceedings in this respect, crossed that line.  Accordingly, Mr Smith’s principal submission falls.

30	The second line of attack relies on the principal of natural justice, that the Employment Tribunal must not objectively give the appearance of bias.  Peter Simper & Co Ltd –v- Cooke [1986] IRLR 19.

31	In support of this submission Mr Smith has referred us particularly to allegations set out at paragraphs 6, 7, 11, 14 and 15, the affidavit sworn in this appeal by Mr Gittins senior on 4 June 1999.  The specific complaints may be summarised in this way: -

“Throughout that first day the Chairman Mr Sara had interrupted the questioning on a number of occasions.  I thought that his approach was very bombastic and domineering.  I asked for permission for Paul Warman to attend for the second adjourned day.  Although Paul had given his evidence I was aware that he was the only person who would know if the Respondents were telling the truth.  Mr Sara very abruptly told me that “I have told you once all witnesses that have given evidence are released”.  It was obvious that the Respondent’s witnesses were being coached.

We would like Paul to return to challenge some of the lies being told, but after this response by the Chairman we not dare challenge him.  The Chairman’s approach was erratic, we didn’t know if he was going to bite our heads off, or if he was going to be pleasant.  Having never conducted a court case before, I found his fluctuating attitude bewildering and at times, highly disconcerting.

Given the evidence which we have subsequently obtained, we would have been able to properly rebut Mrs Sprules’ evidence if we had been given an opportunity to do so.  The representative for the Respondents was Mr Lethbridge the Managing Director.  I felt that he deliberately led the witnesses.  I objected to this on a number of occasions, however I felt that the Chairman allowed the Respondents a great deal of leeway, and chose to overlook this ‘coaching’ of the witnesses.  The Chairman dismissed a lot of my objections about leading the witnesses saying: “Mr Gittins will you please let them get on with it or we will be here all day.”

I consider that the Chairman’s actions and the manner in which he conducted the Hearing was a breach of natural justice.  As a lay person I felt bullied and intimidated by the Chairman’s aggressive and abrupt stance.  I considered that the Chairman wanted to bring the proceedings to an end as swiftly as possible, rather than allow us a fair hearing.
It seemed to us that after hearing the evidence of Janet Sprules the Chairman had made up his mind as to the outcome of the case.  I considered that his demeanour was such that I realised we were fighting a losing battle, and I was convinced that we were no longer being treated fairly.”

The Chairman Comments;
I remember the case reasonably well.  It is not easy to deal with the rather general comments of Mr Graham Gittins who represented the applicant.  I recall that there was considerable animosity between Mr Gittins senior, who had himself been dismissed from a senior management position with the respondents, and Mr Lethbridge the manager acting on behalf of the respondents.  Neither side had professional representation and it was inevitably necessary for me to ask a number of questions to clarify the issues.  I am sorry that Mr Gittins thought that I was “bombastic and domineering” and “erratic”.  I thought that my questions were even-handed, but searching.”

32	We have carefully considered the complaints raised in Mr Gittins senior’s affidavit and set those against the test laid down in Peter Simper and later cases particularly the speech of Lord Goff in R –v- Gough [1993] AC 646.  We are not satisfied that this complaint is made out in law.  It seems to us that the Chairman adopted a brisk and robust approach to the conduct of these proceedings and that is as far as it goes.  

33	Mr Gittins senior was no doubt upset, first, because he was called upon to appear as an applicant for the first time.  Secondly, because his case was lost.  However, we are not satisfied that there are grounds before us to satisfy us that the Employment Tribunal’s decision is vitiated on the basis of an appearance of bias on the part of the Chairman.

34	In these circumstances, having considered the way in which the case is put before us, we are unable to discern any error of law in the Employment Tribunal’s conduct of these proceedings and consequently this appeal must be dismissed.