Appeal No.	 EAT/63/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 March 2000

Before
THE HONOURABLE MR JUSTICE BURTON
MR A E R MANNERS
MRS T A MARSLAND

ATLAS CARAVAN CO LTD	APPELLANTS

(1) MR A TOOMEY (2) MR T FLATT (3) MR I LOWE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellants	MR B CARR
(of Counsel)
Andrew M Jackson & Co
Solicitors
PO Box 47
Essex House
manor Street
Hull
HU1 1XH	
For the Respondents	MR A HOGARTH
(of Counsel)
Messrs O H Parsons
Solicitors
3rd Floor
Sovereign House
212-224 Shaftesbury Avenue
London
WC2H 8PR	

	MR JUSTICE BURTON:	

1.	The procedure in this matter listed as Atlas Caravans Ltd v Toomey, Flatt and Lowe has been somewhat unusual, not to say tortuous, but we welcome the fact that in the end both Appellant and Respondent and cross-appellant have been before today represented by Counsel because it has enabled a proper and full consideration to be given and certainly a substantial saving of costs.

2.	Briefly summarising that procedure, Atlas Caravans Ltd appealed against the unanimous decision of the Employment Tribunal, chaired by Mr Simpson in Hull on 17th, 18th and 19th November 1999, on two grounds. The decision of the Employment Tribunal was that the employees, Messrs Toomey, Flatt and Lowe, had been unfairly dismissed but were entitled only to compensation of 50%, which sums have been subsequently agreed subject to the outcome of any appeal hearing. 

3.	There were five issues, summarising them at their most basic, before the Employment Tribunal:

(1)	Was the dismissal on the grounds of Trade Union membership or activities?
(2)	Was there a substantive reason for the dismissal so as to justify it, namely, misconduct?
(3)	Was the dismissal a fair dismissal?
(4)	Should there be a percentage deduction for contributory fault by the employees? 
(5)	Should there be a Polkey deduction, and if so, what?

4.	The conclusion of the Tribunal was that:

(1)	 this was not dismissal on grounds of Trade Union membership or activities, the employees having engaged in conduct which the Tribunal unanimously concluded to be reprehensible and to go beyond the ambit of lawful Trade Union activity;
(2)	the ground for the dismissal was misconduct and there was substantial misconduct such as to be a proper ground for dismissal;
(3)	but the dismissal was unfair on procedural grounds, on the basis that the Appellant, as it was put in paragraph 22 of the decision ignored “the conventional disciplinary process or indeed the further enquiries that might have been appropriate in the ordinary case”. 
(4)	The finding of the tribunal was that there was 50% contributory fault, and so the amounts that they awarded were to be reduced by 50%. 
(5)	The Tribunal made no Polkey deduction. In paragraph 22 of its decision it recorded the submission that was made by the Appellant that within Polkey it would have been utterly futile to carry out the proper process, and rejected that submission, and there has been no appeal against that finding; but the Tribunal then went on to consider whether there would be a Polkey deduction, that is on the basis that even had the proper process been carried out the employees would still, or that there was a fair and quantifiable chance that they would still, have been dismissed. In paragraphs 22, 23 and 24 of the decision the Tribunal said:

“22. … We are not satisfied that the Respondents have indeed established that it would have been futile to carry out such an enquiry and such a process. It may well be that at the end of the enquiry and the process the Respondents may still have concluded that dismissal was the appropriate sanction, but we do not know and the Respondents cannot satisfy us that this was the case. In those circumstances we are of the view that the failure by the Respondents to afford the Applicants the normal disciplinary process and the failure of the Respondents to carry out the further enquiries which we as a Tribunal would have expected the employer to carry out is such that procedurally the dismissal was unfair.
23.	It then falls to the Tribunal to consider the second proposition postulated in Polkey, namely the “what if proposition.” What if the Respondents had carried out the appropriate enquiries and appropriate disciplinary process? Would the result have been the same? We cannot say that it would.
24.	We are satisfied that had the Respondent gone about matters in a proper way then the chances are that there would not have been a dismissal. …”

5.	The employers were naturally content with the first two findings of those five issues and in relation to the third, namely that the finding of the dismissal was unfair by virtue of procedural impropriety or irregularity, they did not seek to appeal.

6.	The appeal, which they put in in time, was an appeal against the fourth and fifth findings, namely, they sought to submit that the contributory fault should have been higher than 50% and indeed 100%, and they complained in relation to the Polkey deduction, either that there should have been 100% Polkey deduction, or at any rate, there should have a percentage Polkey deduction in the light of the Tribunal’s findings of fact.

7.	There was no appeal by the Respondents. The Respondents however put in a draft Respondents’ Notice and cross-appeal.

8.	Today is the hearing of the preliminary hearing of the appeal by the employers. It is noted that in the Respondents’ PHD Form, for the purposes of this preliminary hearing, the Respondents state:

“The cross-appeal alleges that several findings of fact were perverse or were not open to the Tribunal on the true construction of s.152(1) of TULRA 1992. The evidence will therefore be crucial.”

	This was for the purpose of a submission that Notes of Evidence would be required if the employers’ appeal proceeded. It is right, therefore, that there is mention of what is described as a ‘cross appeal’. 

9.	This Tribunal convened this morning expecting that it would be necessary to raise the potential existence of a cross-appeal with Counsel for the employers as part of the consideration as to whether the appeal should go ahead and if so on what basis, but in fact we found Counsel for the Respondents present, not to assist on the ex parte application on the Appellant’s appeal, but to argue a preliminary hearing on its cross-appeal. On the face of it, that is an inappropriate course, because by the very description of their cross-appeal as a cross-appeal, it is not an independent appeal, and the time for a preliminary hearing would not arise and has not arisen. We, however, have been pleased to hear both Counsel for reasons that will appear, because it has enabled us fully to understand the position and to reach a proper and reasoned conclusion all on one occasion. 

10.	So far as the procedure is concerned on the cross-appeal:

(1)	Mr Hogarth has sought leave to appeal out of time on the basis that his cross-appeal should stand as an independent appeal, irrespective of whether Mr Carr obtains leave to proceed on his appeal. If it had been an independent Notice of Appeal, it would have had to have been served within 42 days of the decision of the Tribunal and in fact assuming that it should not be deemed to have been an independent Notice of Appeal, it would have been and was 18 days out of time, and so he would need leave to appeal out of time.

(2)	If  in fact we were to give leave to appeal to the employers on their appeal, that would be the time when Mr Hogarth’s draft cross-appeal would then trigger in, pursuant to Rule 6 of the Rules, as an effective cross-appeal and then there would be power to hold a preliminary hearing on his cross-appeal, insofar as it contained matter going wider than a Respondents’ Notice or a genuine response to the original appeal, as indeed this cross-appeal, as we shall explain, plainly does. Thus we would be faced in a few weeks time, in any event, with an ex parte preliminary hearing on that cross-appeal.

	We have dealt with today, on the basis, so far as the Respondents’ application is concerned, of a double-headed hearing:

	(1)	an application for leave to appeal out of time; and
(2) 	whether or not that is granted or would be granted, an accelerated hearing of what, in any event, would have been a preliminary hearing on the Respondents’ cross-appeal, 

but we have been able to do it simultaneously with the employers’ appeal.

11.	The basis of the employees’ cross-appeal, or would-be appeal, is, as I have indicated, considerably wider than the grounds of the employers’ proposed appeal. They seek to attack the first two issues of the Tribunal’s conclusions. They seek to say that the Tribunal erred in relation to its conclusion that this was not a dismissal for Trade Union membership or taking part in Trade Union activities, and that there was no misconduct justifying dismissal. They obviously take no issue with the finding that the procedure was unfair, but they would seek to attack the conclusion of contributory fault and, whereas the employers would seek to increase the finding of 50% they would seek to say that the Tribunal erred in making any finding of contributory fault at all. 

12.	It is thus quite clear that the Respondents’ so-called cross-appeal, so far as it relates to the head of contributory fault, is a genuine cross-appeal, in the sense of seeking to challenge, but with a different intended result, the same decision, but on different grounds, decision as is in any event challenged by the employers. However their other two grounds relating to Trade Union dismissal and misconduct as a ground for dismissal at all, are independent grounds, would certainly need the complete reopening of all the evidence, not simply an assessment of the misconduct as found by the Tribunal, and would lead, if successful, not simply to the restoration of the missing 50% of the compensation awarded by the Tribunal, but to the substantial additional compensation which would follow from a finding of dismissal on Trade Union membership grounds.

13.	The reason for the process being a cross-appeal and not an independent appeal and being out of time, was very frankly put before us by Mr Hogarth, and that is, he tell us, that the employees and those advising them, which clearly includes in this case the Union, took the view that the result was about right in terms of the 50% result. It is not one with which of course they were content, but it was one which they were or would have been prepared to accept. However, once the employers put in an appeal which could have had the result of reducing that 50% to nil, then they would have wished to have put in the present appeal or cross-appeal, in order to counter that, and as I have indicated, indeed, if successful, to result in a substantial increase of the compensation. But it is a genuine cross-appeal in the sense that they would not have appealed if the employers had not done so. That must reflect two matters. First, it goes to the lack of a good reason for an extension of time to be an independent appeal, although that of course would only deal with the suggestion that we should consider their appeal even if we dismissed the employers’ appeal. It would not on the face of it be relevant to the question, on a preliminary hearing, of the merits of the appeal itself, if an extension of time was not needed, but, as I have indicated, it appears to us that it must be relevant when one is considering whether they should be entitled to run their appeal independently,  given that they did not think it sufficiently significant to bring it in within time, and have no reason for not doing so except their lack of enthusiasm. Secondly, it must inevitably be relevant, although clearly as a matter of law, not determinative, when one is considering a submission, such as they make, that the decision of this Tribunal was perverse, which of course, traditionally, includes the notional ‘shock horror’ reaction of the recipient of it. The shock horror of this recipient did not lead it even to consider appealing, never mind immediately to conclude that it was perverse.

14.	It is against that background that we come to consider both a preliminary hearing on the employers’ appeal and the question as to whether the employees should be permitted to bring an appeal out of time and/or a preliminary hearing or anticipatory preliminary hearing of a cross-appeal.

15.	What appears to unite both parties is a desire to make a difference to the result. Equally, it appears to us, that what was very much in the minds of the Tribunal was what appeared to them to be a fair result. Looked at briefly, our views are as follows: that the ground of appeal by the employers on grounds of contributory fault, the ground of appeal by the employees on grounds of contributory fault and the grounds of appeal by the employees in respect of dismissal on Trade Union grounds and substantial misconduct are all wholly fact based, and depend upon an arguable case that this experienced Tribunal unanimously erred in making a perverse decision. 

16.	We have been greatly assisted by both Counsel in their submissions, but we are wholly unpersuaded that there is any arguable ground which would enable the matter to go forward, resulting in an appropriate course of reopening the facts of this case, simply because, for example, the Tribunal Chairman did not set out in the decision the reasons which he accepted on the part of the employers as being the grounds for dismissal other than by reference to a paragraph of a witness statement, or that he did not in terms recite the counter-allegations by the employees, which plainly the Tribunal unanimously did not accept.

17.	No doubt both sides take the view that the conclusions of fact were adverse to them and were wrong or inadequately expressed or not based on a proper consideration of the evidence, but we do not believe that there is an arguable case of perversity. We do not believe that this Tribunal arguably addressed themselves to the wrong considerations or took into account inadequate or inappropriate considerations. 

18.	So far as the ground put forward by the employer based upon the Polkey deduction, we have of course inevitably, because both parties have been here, taken into account not only what Mr Carr has said about the apparent inconsistency between paragraphs 22 and 24 of the decision, but also have taken into account the submissions of Mr Hogarth. Mr Hogarth very fairly, as one would expect, sympathised with the submission made by Mr Carr on the Polkey ground. But it appears to us that the Polkey question cannot be disentangled from the totality of the conclusions of this Tribunal. Whether one mouths the magic new phraseology of proportionality, or one simply indicates that it is always open to any Tribunal on appeal to look at the totality of the decision of the Tribunal below, and conclude that, even if the reasoning may have been inadequate, the end result was right, or that if one figure moves up another figure would move down, such a course can and should be taken by an appellate tribunal. It may well be that the right conclusion here would have been for the Tribunal to have expressed itself somewhat differently, for example, in concluding that there was only 25% contributory fault rather than 50% and then make a 25% Polkey deduction, or something of that kind. But it appears to us quite clear that this industrial jury looked, as they would be entitled to do, at the appropriate questions, which they had to ask themselves, and arrived, having asked themselves the right questions, at an appropriate, sensible and unassailable result. In those circumstances, we are satisfied that both these appeals, even allowing for the possibility of extending time for the cross-appeal, should be dismissed.