Kataorha v Butlers Warehousing & Distribution Ltd [1992] UKEAT 354_90_2906

EAT
Kataorha v Butlers Warehousing & Distribution Ltd
[1992] UKEAT 354_90_2906 · 1992-06-29
The Appellant's first ground of appeal alleges that he was faced on the first day of the hearing with the Respondent's bundle of documents. He maintains that the Tribunal was in error in failing to adjourn the matter in order that such documents could be consulted. It does not appear that any application was ever made for such an adjournment. We have admitted in evidence an affidavit from Ms Gleave who represented the Appellant. It became obvious that her recollection of events (in particular that she had been obliged to submit, at short notice, written submissions) was, and was admitted to be erroneous. In the event we felt we could attach little weight to the document. It is accepted that the Respondents' bundle was served on the morning of the hearing and the Chairman's observations on 21st June 1990 confirms that no complaint was made. Moreover the application for Review which contains 42 paragraphs and is extensive by any standard, makes no mention of this alleged defect in procedure. While it is obvious that late delivery of documents initially inconveniences the representative of a party, it is fair to point out that of the 118 pages, 42 were occupied by the Appellants own letters and that the majority of the remainder comprised answers to those letters. It follows that a considerable proportion of the documentation would have been known to the Appellant at the time. Further, the Respondents' witnesses were not called until the second day. The Appellant therefore had the period of the adjournment to consider the documents. We do not accept that any material difference would have occurred in the outcome had the Appellant seen in advance page 2 of the bundle which dealt with disciplinary grievances where the top half of the document was blanked out because the whole of that document was already in his possession. In total we cannot see that the late delivery of the bundle inflicted any injustice upon the applicant and no criticism can be attached to any Tribunal for not adjourning when no such application is made.The second and third grounds allege that the Tribunal failed to appreciate or even read the transcripts of the conversations with Mrs Simmonds and Mr McCarthy relating to the alleged alteration of the overtime sheet, and further that the Tribunal failed to understand the issues arising from such overtime sheet. An overtime sheet which originally showed that the Appellant had worked seven hours was altered by the Appellant to show that he had worked 6 1 / 2 . Someone, it is alleged added the figures 11 1 / 2 to that sheet. The Appellant had become very suspicious concerning the motives of those around him at work and kept a tape recorder to hand. He supplied the Industrial Tribunal on 15th March 1990 with 36 pages of excerpts from conversations with nine fellow-employees. It was alleged before us that while the transcript bundle was in fact before the Industrial Tribunal the only reference to it at the time of the hearing was the Chairman's comment

"We'll come to those later"

The Respondents were unable to confirm that that comment was ever made. It is said that the evidence of the Transcripts must have been overlooked because the only reference is that at paragraph 15 of the Reasons:"He was given a fair hearing by Mr Bell. He was given a fair hearing by Mr Rice. The fact that he saw fit to conceal a tape recorder is an indication of the way in which the applicant had allowed his feelings of grievance to distort his entire perspective".We reject the view that this indicates that the Tribunal failed to consider the transcripts. Moreover it is the duty of the parties to bring to the Court's attention specific passages in documents or bundles if they wish them to be considered in detail. It is claimed that the Industrial Tribunal failed to consider the two excerpts in the transcripts which dealt with the accounts from Mrs Simmonds and Mr McCarthy about the way in which the overtime sheet came to bear the figure 11 1 / 2 . It is said that this aspect is crucial to the Appellant's case and that the Tribunal ought to have given a reasoned account in relation to the contradiction between the two transcript excerpts. The Tribunal's findings were -The applicant, for a reason which we cannot understand, believed that he might have been falsely accused of altering his overtime sheet because Mr McCarthy had allowed him to work the 6 1 / 2 hours. It is a matter we do not understand but we are satisfied that the conduct of Mr McCarthy was in the applicant's favour, that nobody ever made any accusation against him and that there was a perfectly simple explanation of the writing on his overtime sheet having been done for the pay clerk."It is obvious that the Tribunal considered that the account that the Appellant gave of fearing a false accusation was groundless because the sheet itself records specifically that the time claimed by him was 6 1 / 2 hours. It is noteworthy that while the original allegation in his application to the Industrial Tribunal was that
"His overtime declaration was altered by the management without his prior knowledge or permission"
by the time matters were placed before us this had developed into a specific allegation of forgery against a named fellow-employee. In our view the Tribunal was fully entitled to take the view that it did.The next ground is the allegation that the Tribunal's finding that the Applicant was not being required to change his job was perverse in that the Tribunal had clear evidence before it that the Applicant's job had been altered from a non-mobile to a mobile grade. In the alternative it is claimed that the Tribunal was perverse and/or misdirected itself in that it failed to understand the nature of the change of terms of the plaintiff's employment which arose from the Respondents' requirement that the Applicant sign a new contract of employment. It will be noted that both of those alternatives rely upon perversity. In fact there was ample evidence before the Tribunal. The letter of 22nd March 1989, paragraph 5 sets out -
"Your status as an administrative supervisor within this company has not been changed nor is there any intention to demote or diminish or reduce this role. Your primary responsibility remains the supervisory control of Waitrose administration, which has been your role for roughly 20 months. However, you are also responsible for undertaking all other reasonable duties as required by the company. Additionally, you are required to provide reasonable assistance and aid to other company employees, where necessary."

Again by a letter dated 10th April 1989

"I must once again stress that this company regards you as a competent employee. Your status is not under threat and you continue to report to management on your responsibilities although your line manager has been changed."
In addition there was the evidence of Mr Rice (which was accepted by the Tribunal and is set forth at paragraph 10 of the Reasons). Finally, by paragraph 15 the Tribunal found -
"The Tribunal is satisfied that at no time was the applicant's job altered. We are satisfied that Mr Bell went to great lengths to discuss the applicant's complaint with him and having seen the job description and having heard Mr McCarthy and Mr Rice we are satisfied that there was no change to the applicant's job. He perceived the geographical change as changing his job. He was mistaken. ..."
The evidence fully justified that finding.Finally it is contended that where respondents' counsel enumerated the issues for consideration his omission of the issue of undermining the Applicant's position by removing his responsibility for staff management matters affecting those working for him removed the issue from the Tribunal's consideration. It is said that the Tribunal's findings indicate that they had not understood that that was one of the grounds relied upon in relation to the constructive dismissal. Paragraph 15 of the findings is specific about this point
"...We are satisfied that at no point was there any attempt made to undermine the applicant's authority, to undermine his job, to interfere with his personnel file. ..."
The Tribunal's finding, for which there was ample evidence, was that the reason for the resignation stemmed from the Appellant's distorted view of what was occurring and not for any other reason. This is set forth at paragraph 17 of the Reasons -
"... We believe that the Applicant had a mistaken view of his status. A mistaken view that there had been a change in that status and that this distorted perspective coloured all his subsequent relationship with the Respondent. He saw sinister motives and sinister implications where none existed. He was unable to accept that there could have been simple explanations for his complaints and that his suspicions were totally unfounded."
We are therefore of the view that there is no substance in any of the Appellant's contentions and this appeal is dismissed.