Appeal No. EAT/0876/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 May 2002

Before
HIS HONOUR JUDGE PETER CLARK
MRS J M MATTHIAS
MR N D WILLIS

J L DISTRIBUTION SERVICES LTD	APPELLANT

MR J T ARMITAGE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR S BRANNIGAN
(of Counsel)
Instructed By:
Messrs McBride Wilson & Co
Solicitors
The Courtyard
Queens House
55/66 Lincoln’s Inn Fields
London
WC2A 3LJ	
For the Respondent	DR P S LEWIS
(Representative)
Newmarket
CAB
Foley Gate
Wellington Street
Newmarket
Suffolk
CB8 0HY	

JUDGE PETER CLARK:
1.	By an Originating Application presented to the Tribunal on 24 June 1999 the Applicant, Mr Armitage, complained of unfair dismissal by his former employer, the Respondent J L Distribution Services Limited.  He had commenced his employment as Transport Manager with TJK Services on 1 February 1996.  That business had been transferred first to Southern Counties Distribution Ltd and subsequently to the Respondent.  He claimed to have been summarily dismissed on 6 May 1999.  Attached to the Originating Application was a memorandum to all customers of the Respondent signed by John Law, a manager of the Respondent, dated 6 May, referring to the termination of the Applicant’s employment.  It is there said that the Applicant had been disclosing confidential business information without the Company’s permission.

2.	By their Notice of Appearance the Respondent admitted the dismissal, but contended that they were entitled to do so.  In particular it was said at paragraph 2 of their grounds for resistance:

“It was discovered by the Company that the Applicant was denigrating the service provided by the Company and informing the company’s clients of confidential [information], concerning the Company’s operations and making false allegations against another officer of the company.”

3.	The matter came on for hearing before a Tribunal chaired by Mr J Rosser sitting at Bury St Edmunds on 7 February 2000.  The Applicant, represented by Dr Lewis gave evidence on his own behalf; the Respondent, then represented by Mr Collins of counsel, called Mr Law.  It had also been the Respondent’s intention to call a Mr Murdoch, then employed as General Manager of Norfolkline, a freight transport business.  Mr Murdoch lived in Glasgow.  He had intended to fly to Stanstead airport from Glasgow on the morning of the hearing.  He was unable to do so due to a hi-jacking which caused Stanstead to be closed that morning.  

4.	Mr Collins sought to have a witness statement taken from Mr Murdoch, together with a statement from a Mr Stagg, now irrelevant for the purpose of this appeal, admitted in evidence.  Dr Lewis objected.  The Tribunal considered those statements at the outset of the hearing and declined to admit them in evidence on the basis, according to their extended reasons for decision, that the Applicant’s representative would be unable to cross-examine the witnesses.

5.	The case proceeded.  As appears from the Tribunal’s decision with extended reasons promulgated on 2 June 2000 the Tribunal found on the evidence before them:

(1)	that the Respondent had failed to establish a potentially fair reason for dismissal.  There was absolutely no foundation to the complaints of misconduct made against the Applicant.  They were used to give an ostensible reason for dismissal when in fact the Respondent, having no further use for the Applicant whom they had acquired on the transfer, simply wished to be rid of him.
(2)	he had not contributed to his own dismissal 
(3)	in the alternative the dismissal was procedurally unfair
(4)	that he was entitled to compensation totalling £15,075.

6.	Against that decision this appeal is brought.  Initially, by their Notice of Appeal, the Respondent’s sole complaint related to the Tribunals ruling that they would not admit into evidence the witness statements of Mr Murdoch and Mr Stagg.  

7.	Following a preliminary hearing before a division presided over by Lindsay P. on 8 December 2000 the grounds of appeal were amended to add a further contention that, in deciding the issue of the fairness of the dismissal, the Tribunal had erred in law in substituting their own view for that of the Respondent.  

8.	In advancing the appeal today Mr Brannigan has dealt with the 2 broad lines of attack separately, whilst submitting, correctly we think, that they are to some extent interlinked.

9.	On the admissibility issue he first submits that the Tribunal ought to have offered or, of their own motion, ordered an adjournment so that Mr Murdoch could attend to give oral evidence, he having been unavoidably prevented from doing so on the day.  We reject that submission.  It seems to us, particularly where the Respondent was represented by Counsel that it was for them to decide whether to go on without Mr Murdoch’s presence, or to apply for an adjournment.  They took a tactical decision to follow the former course; they cannot now complain on appeal if that turned out to be the wrong choice.

10.	However, his secondary position is on firmer ground.  It is that the Tribunal was wrong to exclude the witness statement of Mr Murdoch.  Dr Lewis does not quarrel with that proposition.  We think that concession is properly made.  The reason given by the Tribunal in their extended reasons for excluding the witness statement, that the Applicant could not cross-examine Mr Murdoch, is in our view a bad one.  That will always be the case when a witness cannot be called.  The witness statement ought to be admitted; it will then be for the Tribunal to decide what weight, if any to give to the statement.

11.	We note, from paragraph 9 of the President’s judgment at the preliminary hearing, that when contacted subsequently, the chairman expressed the view that even if Mr Murdoch had attended it would have made no difference to the decision whatsoever.  Both advocates submit, we think correctly, that we ought not to take account of that observation, which did not form part of the Tribunal’s extended reasons.  See Reuben v. Brent London Borough Council (2000) ICR 102.

12.	Dr Lewis nevertheless submits that even if that procedural ruling was flawed, failure to admit Mr Murdoch’s witness statement would have made no difference to the result, which was plainly and unarguably correct, given the Tribunals findings of fact.  See Dobie v. Burns International (1984) ICR (Court of Appeal).

13.	That brings us to Mr Brannigan’s second line of attack, that the Tribunal impermissibly substituted their own view for that of the Respondent.  See Iceland Frozen Foods v. Jones (1983) ICR 17; approved by the Court of Appeal in Foley v. Post Office (2000) ICR 1283.  

14.	The first issue for the Tribunal in this unfair dismissal complaint, dismissal being admitted, was what was the Respondent’s reason for dismissal?  The question here is a subjective one, did the Respondent have a genuine, even if mistaken potentially fair reason for dismissal.

15.	We accept Mr Brannigan’s submission that at this stage the Tribunal appears, from paragraphs 3 and 4 particularly of their extended reasons, to have asked themselves, on the evidence before them, whether the Appellant had in fact misconducted himself in the way alleged by the Respondent.  They found, emphatically, that he had not.  From there they proceeded to find that the Respondent’s avowed reason for dismissal was not genuine.

16.	We have difficulty with that approach, particularly in light of the finding, at paragraph 4 of the extended reasons, that Mr Murdoch’s fax to the Respondent of 28 April 1999 was not a genuine complaint.  If they were entitled to reach that conclusion on the evidence before them, was not Mr Murdoch’s witness statement relevant evidence to confound such a finding?  We think that is was, subject to the weight to be attached to it.  

17.	If the Tribunals finding as to the reason for dismissal was, as we think, reached impermissibly, that gives rise to further difficulties namely:
(1)	although the Tribunal made an alternative finding that the dismissal was procedurally unfair, they did not answer the further Burchell questions; did the employer carry out a reasonable investigation; did they have reasonable grounds for their belief in the misconduct alleged?
(2)	In these circumstances the Tribunal did not consider the Polkey question?, might a fair procedure have resulted in a fair dismissal and if so, what was that chance expressed as a percentage?
(3)	In finding that the Applicant had not contributed to his dismissal, might that finding have been different had they considered and weighed the evidence contained in Mr Murdoch’s witness statement?

18.	We should deal with two further submissions made by Dr Lewis.  First, he relies upon the Tribunal’s summary reasons.  That is not permissible.  The Tribunals extended reasons represent their final reasoning.  In so far as there is any conflict between the summary reasons and extended reasons, the latter must always prevail.  Secondly, he contends that Mr Murdoch’s evidence did not in fact go to the Respondent’s expressed reason for dismissal.  We cannot agree.  The complaint by Mr Murdoch was that the Applicant had disclosed confidential information about Norfolkline’s customers to a competitor of Norfolkline, Fridgecrosse.  It is that allegation which appears in the middle of paragraph 2 of the Respondent’s grounds of resistance, set out earlier.  Indeed, the forensic point which Dr Lewis takes on Mr Law’s evidence (his witness statement paragraph 5, the number is omitted) that the Applicant was disclosing confidential information concerning the Respondent to its, the Respondent’s competitors, shows the importance of the Tribunal at least considering Mr Murdoch’s written evidence, which makes the nature of his complaint, potentially damaging to business relations between the Respondent and Norfolkline, clear.

19.	For all these reasons we have concluded that this decision cannot stand.  The appeal is allowed and the case remitted to a fresh Tribunal for complete re-hearing.  At that re-hearing it will be open to the parties to call such relevant evidence as they see fit including, in the case of the Respondent, Mr Murdoch.