Appeal No.	 EAT/211/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 November 2000

Before
HIS HONOUR JUDGE D M LEVY QC
MR B V FITZGERALD MBE
MR R SANDERSON OBE

MR JOHN HANNIGAN	APPELLANT

CABLE & WIRELESS COMMUNICATIONS PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MS HELEN GOWER
(of Counsel)
Instructed by:
Messrs Edwards Abrams Doherty
Solicitors
125/131 Picton Road
Liverpool 
L15 4LG	

JUDGE D M LEVY QC

1	This is a preliminary hearing under the new system of a proposed appeal by Mr Hannigan against the decision of an Employment Tribunal sitting in Manchester on 6 October 1999, 5 November 1999 and 14 January 2000.  The unanimous decision of the Tribunal was that Mr Hannigan was unfairly dismissed but there should be no remedy award.  

2	The decision was promulgated to the parties on 24 January of this year.  A Notice of Appeal dated 17 February was lodged as were an affidavit in support of the appeal, sworn by Mr Hannigan on 23 March.  Comments in a statement from the Chairman on affidavit received by the Court in a document dated 29 April.  Ms Gower who appears for the Appellant makes essentially three points in support of the appeal: the first is that the decision was perverse in that the Tribunal refused an application to adjourn 

3	We have considered carefully all that the Counsel has said in her Skeleton Argument and elaborated on in her oral submissions, but we take the view that the decision not to admit further evidence on the facts of the case, in the circumstances of the case, was a decision open to the Tribunal to reach on the day in question.  In fact on the third day a witness had failed to attend, and the Chairman refused an adjournment.  Counsel has submitted that in view of the importance of the witness, costs could have been a suitable compensation to the Respondent, if an adjournment was granted, but the interests of justice require a tribunal to consider the position of all parties when such an application is made.  On the facts of this case we consider that a Tribunal, properly directing itself, could properly have reached the decision that the Tribunal did namely, that no adjournment should be granted.  

4	The second point on which Counsel made submissions was that there was a cutting down by the Chairman of cross-examination by the Appellant of one of the witnesses.  The witness was Mr Ledwith.  In paragraph 3 of his affidavit , the Appellant says this:-
“During the evidence given on behalf of the Respondents a witness was called, namely Mr M I Ledwith, who is identified as the Respondents’ Human Resources Consultant.  Mr Ledwith was an important witness for the Respondents and he had been present at the meeting when I was dismissed.  I had prepared a number of questions for Mr Ledwith dealing with matters which I considered to be relevant.  After asking some questions the Chairman said that he had heard enough and that I was to be limited to 5 more questions.  I told him I had more than 20 questions left, but an adjournment was called for me to draft 5 questions which had to be checked by the Chairman before they could be asked.  This procedure was followed and the effect was that my questions for Mr Ledwith were restricted unfairly in my view.  I believe that I was making some headway with this important witness and as the head of the Respondents’ personnel department I believed that I had to ask all questions relevant to the reason for my dismissal and the fairness of the dismissal.  Once the Chairman had made the decision in limiting my questions I felt that he was against me and that the Chairman’s attitude towards me as a litigant in person was something that was acting against my prospects.  I was doing my best as a litigant in person and the Chairman’s decision in this regard was unhelpful and in my view unfair.  I felt that I should have been given more time to ask questions of Mr Ledwith and the Chairman’s decision undermined my confidence especially as I was up against a barrister representing the Respondents.  During the hearing the Chairman never interfered with the questions which were being asked by Counsel for the Respondents.”
To this, the Chairman replied in paragraph 2 of his statement:-
“2 The appellant as a litigant in person was afforded such assistance as was appropriate.  However he did not appear to be a stranger to tribunal practice. 
3 	With regard to the Appellant’s cross-examination of Mr Ledwith, this started at 3.35 pm on the first day and continued until 4.15 pm when the hearing was adjourned to the 5th November.  On that day the cross-examination re-commenced at 10.25 am.  By 11.25 am I considered that the cross-examination was becoming repetitive and oppressive.  Irrelevant matters were being introduced.  I indicated this to the Appellant and asked how much longer the cross-examination would continue.  As the Appellant could not give a satisfactory answer to this I invited him to write down for his and our benefit a list of the remaining issues which he wished to deal with and a fifteen minute adjournment was taken for this purpose.  When the hearing resumed the Appellant produced a list of 6 (not 5) questions rather than issues.  The cross-examination was then completed in twenty minutes.”
Having looked at what the Appellant had said and what the Chairman said in answer, we are not satisfied that the cross-examination of Mr Ledwith was restricted in any improper way, or indeed, as the Appellant says in his affidavit, that he was stopped from asking relevant questions.  In our judgment there is nothing to go forward to appeal on this issue either.

5	The final issue, which has been raised by Ms Gower is a relatively small one.  It is this: the Tribunal found that there had been an unfair dismissal but went on to find that there should be no award of compensation and in that regard, Ms Gower has pointed out to us that in the decision itself, there is an apparent error of law; namely on the face of the decision the Employment Tribunal appear to have taken into account the Appellant’s failure to appeal against his dismissal as contributory conduct leading to a conclusion that there should be no remedy.  

6	Hoover -Ltd -v-Ford [1980] ICR 339 provides authority for that submission.  It may well be that on all the facts before the Tribunal, they could properly have reached the decision that there should be 100% reduction, but when there is, on the face of the decision, something which is taken into consideration which is clearly wrong, this is a matter which, with some hesitation, we feel should go forward to appeal  

7	We should say that the whole basis of Ms Gower’s Skeleton Argument and her submissions have been that there was perversity in the decision; we are not convinced that there was any perversity, as she has sought to impress on us.  We thank her for her helpful submissions, but in the event we will only allow the appeal to go forward on the one ground which we have outlined.  The matter of the compensation is obliquely referred to in the Notice of Appeal which is present before us.  We will give leave for the appeal to go forward on this one matter identified on an amended Notice of Appeal which we would invite Ms Gower to submit to the Tribunal within 48 hours.  

8	We should say that on the question of the curtailing of the cross-examination, we have considered the application for the notes of the hearing but we do not think it would be of any assistance to the Tribunal in the circumstances of this case.  Category C, estimated time one hour.