Appeal No. EAT/179/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 June 2001

Before
HIS HONOUR JUDGE J ALTMAN
MRS R CHAPMAN
MR K EDMONDSON JP

MRS O A MORTON	APPELLANT

SCHOOL PICTURES INTERNATIONAL LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	The Appellant in person	

JUDGE J ALTMAN

1	This is an appeal from a Decision of the Employment Tribunal sitting at Nottingham on 25 September, 27 October and 7 December 2000 which comes before us today by way of preliminary hearing to determine if there is a point of law arguable in full before the Employment Appeal Tribunal.  

2	On first reading of the Decision of the Employment Tribunal it appears to contain a clear analysis of the facts and of the relevant legal principles and an application of those principles to the facts which is unassailable on the basis of disclosing any error of law.  

3	However we have resolved that this matter should go to a full hearing because having heard from Mrs Morton herself in a restrained and articulate way, it seems to us there is one issue that does require to be argued in full, and that is that it is urged before us that one of the important issues was the Appellant’s belief that her dismissal was contrived.  With hindsight, she believes she knows now much more about it than she did then.  

4	If that is so, it does appear on the face of the Decision that the Tribunal did not address that issue.  Essentially they assessed the competing accounts of the parties and the evidence of the Respondents and judged it on its merits.  We are a little concerned as to whether this issue of contrivance was raised before the Employment Tribunal.  

5	A number of matters are perhaps worth pinpointing.  In paragraph 3 (xii) which deals with the alleged conduct of the Appellant when she found out that jobs for which she might have wanted to apply were being interviewed for without her knowing, and she was in discussion about it with Mr Rogers her supervisor, the Employment Tribunal made a finding that Ms Waby’s evidence that Mr Rogers was motivated by malice was unconvincing, which lends some support to the suggestion that the issue was in fact raised.  

6	In due course, the Appellant was dismissed because of errors she made in a print run which allegedly caused loss and the employer was asked to consider, at least on appeal, the way in which others who had made similar mistakes had been dealt with more leniently.  We are concerned in relation to what we have heard today about that and the way in which the Appellant believes she could demonstrate, from the Respondent’s schedule of mistakes evidence to support a degree of distortion and fabrication in those lists.  The Employment Tribunal noted at the end of paragraph 3 (xviii):
“We accept that Mrs Morton was not specific until she gave evidence before us”

indicating that those arguments may not have been addressed to the employer at the relevant time.  

7	However, it does seem to us worthwhile to identify the chronology.  On 12 April the Appellant found out that the supervisor’s job, she being an assistant having done the supervisor’s job for nigh on twenty years, was being advertised without her having been told.  On 19 April she was suspended because of her conduct following on from that.  She was away from work till 26 April when she received a final written warning from which she entered an appeal and she returned to work on the following day, 27 April, as she said in her Originating Application, not having slept and having suffered from migraines.  She acknowledged that on her first day back she made a mistake, and in her Originating Application she says that another assistant supervisor had made a similar mistake, without his being disciplined.  Nothing appears to have happened; she remained at work and it was not until 8 May that her appeal, which had in effect leap-frogged that matter on 27 April, and dealing with the final written warning was heard.  

8	Three things may be relevant: first, the appeal modified the final written warning to make it only for two years with a review after twelve months.  Secondly, nothing was actually said at that appeal about the incident which had earlier happened on 27 April and which was later to lead to the dismissal.  And thirdly, between 27 April and 8 May, the Appellant had not been suspended, she was remaining at work.  It was only some days after the appeal on 13 May that she was then summoned to a disciplinary hearing to the matters that had earlier happened on 27 April.  And finally, it is said in the Originating Application that on that final fateful morning on 13 May, before the disciplinary hearing which led to her dismissal, she had heard the new printer and supervisor offer her job to David Brown.  

9	She has amplified the circumstances in which that occurred and it is clear that her case was, even on her Originating Application, effectively, that the decision to dismiss had been pre-determined, so that on the face of that chronology we can well understand that the Appellant is saying that there was a degree of artificiality or contrivance in her dismissal.  

10	All other matters raised being issues of fact, we therefore permit the matter to go forward to a hearing on that argument alone namely that the issue that the dismissal was to a degree contrived and artificial was not an issue which was addressed in their reasons by the Employment Tribunal. 

11	We also ask for the Chairman to provide his notes in a limited form.  We recognise the enormous burden that preparing notes of evidence, and arguments raised, imposes on a Chairman.  We would ask him to furnish his notes of evidence which deal with any fact going to the issue as to the contrivance, artificiality, maliciousness and lack of substance from the Respondents’ point of view in the reasons that they were putting forward, or from the Appellant’s point of view, when her side had been cross-examined.  We would also ask for the statements of witnesses which provided evidence in chief also to be supplied at the same time.  No doubt, the parties’ representatives will see the concern we have as to whether this was raised by the Tribunal and may wish to discuss the matter together or make any other further applications for directions that may be appropriate.  This matter will be listed for full hearing in Category C for half a day, Skeleton Arguments to be provided not less than fourteen days before the hearing is listed.