Appeal No. EAT/913/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 January 2001

Before
MR RECORDER UNDERHILL QC
MR J R CROSBY
MR S M SPRINGER MBE

MR P MURPHY	APPELLANT

QUALITY COMMISSIONING LTD 	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	The Appellant in person	

MR RECORDER UNDERHILL QC

1	The Appellant claimed before the Employment Tribunal that he had been dismissed by the Respondents for raising health and safety concerns, and that the dismissal was necessarily automatically unfair by virtue of Section 100 of the Employment Rights Act 1996.  

2	The Tribunal held, as a matter of fact, that that was not the reason for his dismissal, which was simply redundancy; and since he had been employed for less than a year they dismissed his application.  

3	The Appellant appeals on the following grounds, which we quote from his Notice of Appeal:

“Orders made from a previous Tribunal were not obeyed fully regarding exchanging of documents, witnesses and their statements.  These points were raised by myself during the start of the hearing but were dismissed as “irrelevant”.  Given my circumstances and the detriment towards my case caused by these issues, an adjournment would have been a reasonable act.”

Those grounds were amplified by a letter sent to the Tribunal, together with the Notice of Appeal.  This stated:

“At the start of the hearing I pointed out to the panel that I was seeing several documents and statements for the first time, and that witnesses differed from ones declared in previous correspondence with the respondent.  
     Both these issues were dismissed as “irrelevant” to the case, by the chairman, and I feel this put me at a disadvantage.  It also gave the respondent a clear advantage as I could not read documents and keep up with proceedings at the same time. 
     Some of these documents proved crucial to the case, many issues I could not challenge properly and I feel may have helped the decision in favour of the respondent.  
     Not being legally represented and unaware of rights of procedure, I feel the points I raised should have been taken more seriously at the start of the hearing, and an offer of adjournment would have been a reasonable decision.”

4	As we understand it, the position about the documents and the witness statements appears to have been as follows:

(1) At a pre-hearing review on 12 May 1999 the Chairman ordered, among other things, the exchange of lists of documents within 14 days and the supply of copies of documents requested within 7 days thereafter, together with exchange of statements of witnesses of fact 7 days before the hearing.  

(2) On 25 February 1999 the Respondents wrote to the Appellant enclosing a list of documents, making it clear that copies could be obtained on request, and identifying five witnesses whom they would be calling.

(3)  On 11 June 1999 the Appellant asked for copies of documents from the Respondents’ list .

(4)  Those copies were never received.  On 8 March 2000, the Respondents wrote to the Appellant, stating:
“On checking our records regarding the above, we have noted that all documentation requested by yourself on 11th June 1999 has inadvertently gone to a wrong address.  
We apologise for this error and enclose copies as requested.”

It was then some twelve days before the hearing.

(5)  On 17 March 2000, the last working day before the hearing, the Respondents wrote again in the following terms:
“Please find enclosed information which was omitted from our letter to you on 8th March 2000.”

That letter was not received by the Appellant before the hearing.  The documents which were enclosed with it, it now appears, consisted of a fairly substantial wad of documents - we have not counted, but perhaps 40-50 pages - and one short witness statement from Mr Miller.  The documents were of course in addition to those which had previously been sent, but they were not insignificant.

(6)  It became clear to the Appellant at an early stage in the hearing that the Respondents were referring to documents which he had not seen, and were proposing to call witnesses other than those of whom he had been notified in the letter of 25 May 1999.  To be precise, they were proposing to call two witnesses, whose identities have not been given, and not to call three of the witnesses whose identities had been given.  He had not, of course, seen witness statements from any of them.

(7)  It was at that point that he protested in the terms he says are summarised in his letter and that his protest was overruled.

(8)  He says that he was, as a result, put at a serious disadvantage.  The witnesses gave oral evidence without any warning to him of what the contents of their statements would be, and there was frequent reference to documents which he had not had a chance to see beforehand.  

5	The Chairman has been asked for his comments.  In a letter dated 20 September 2000, he makes it clear that he cannot recall the hearing, but that his notes did not bear out the Appellant’s assertion that he had objected.  He said it is his normal practice to ensure parties are not taken by surprise by the late delivery of documents, particularly when they are unrepresented.  He said it would not be his normal practice to offer an adjournment, but he might allow a short period of delay for parties to assimilate anything that comes to them fresh, at the start of the hearing.  

6	We believe that there is an arguable question whether the Appellant can have had a fair hearing in circumstances where there had been such a serious disregard of interlocutory Orders, and that the Tribunal should have taken more positive steps than it appears that it did to see that any such disadvantage suffered by the Appellant was removed.  We attempted to explore with Mr Murphy the extent to which he was, in truth, disadvantaged in dealing with the crucial issues; it may turn out in the end that he was not, but we did not feel able, on this preliminary hearing, to establish this with confidence.  

7	Finally, a further point emerged.  The Tribunal said in paragraph 4 of its Reasons that:

“the first time that a health and safety reason for dismissal was alleged was in the preliminary hearing held in this case.”

It was pointed out to us, so far as we can see correctly, that that is simply wrong, since the Appellant’s IT1 states in terms:

“The Applicant contends that he was dismissed because of his refusal to work twenty eight days without a break as required by the Respondent, believing that to do so would be in breach of Health & Safety regulations and would jeopardise the safety of himself and his work colleagues.”

And the Respondents certainly so understood the application in putting in their Grounds of Resistance.  

8	It seems to us clearly arguable that what appears to have been a mistake on the part of the Tribunal was sufficiently fundamental to the issues to vitiate their conclusion, particularly since the fundamental question was whether the Appellant was raising this allegation late in order to get over the difficulties about his qualification to bring unfair dismissal proceedings. 

9	Accordingly, we will allow the appeal to proceed.  A number of directions appear to us to be necessary.  

10	First, we give leave to the Appellant to amend the Grounds of Appeal and add the new point which we have indicated.  That should be done within 14 days, and we very much hope that Mr Murphy will have the assistance of the ELAAS representative who we know has been advising him in formulating that point.  

11	Secondly, the Tribunal will be assisted by full materials as to what occurred in relation to the interlocutory Orders and at the hearing.  We accordingly direct: 
(a) that the Chairman be requested to produce his notes of the hearing;
(b) that the Appellant lodge within 28 days a copy of the bundle of documents initially sent to him and the additional documents sent to him on 17 March; 
(c) that the Appellant should give a written statement within 28 days, doing two things: 
(i), explaining what he says was the importance of the documents which were delivered late, 
and 
(ii) giving his best recollection of what objection was made at the hearing, and how that objection was dealt with (we do not think in the circumstances of this case that it is necessary that that statement be a sworn statement) and finally

(d)  that the Respondents, within 21 days thereafter, lodge a statement stating what documents they produced and when and what witness statements they served, and giving such comments as they are able as to the question of what objection the Appellant raised at the hearing and how it was dealt with.  

12	Skeleton Arguments should be exchanged within 14 days before the hearing.  Category C - three hours.