Thurlby v Tanmade Ltd [1993] UKEAT 326_91_2501

EAT
Thurlby v Tanmade Ltd
[1993] UKEAT 326_91_2501 · 1993-01-25
MR JUSTICE KNOX: This is a preliminary hearing of an appeal brought by Miss Thurlby from a majority decision of the Industrial Tribunal sitting at Reading on the 4th April 1991 when the majority held that she was not unfairly dismissed by her employer, identified as Tanmade Limited.The majority held that her dismissal, the fact of which was not disputed, was due to redundancy and was not unfair, the minority held that the dismissal was due to friction between her and Mr Godfray. The jurisdiction of this Tribunal is limited to issues or questions of fact because of the provisions of Section 136 of the Employment Protection (Consolidation) Act 1978 which says in sub-section (1):
"An Appeal shall lie to the Appeal Tribunal on a question of law arising from any decision of, or arising in any proceedings before, an industrial tribunal under, or by virtue of [and then amongst other acts]
. ....

(e)this Act"

and it is under that Act of course that the claim was brought for unfair dismissal.Miss Thurlby was employed from the 26th May 1987 until the 29th November 1990 as an Administrative Assistant. The Industrial Tribunal went through the facts as they found them and in particular it found in favour of Miss Thurlby on the question of credibility. It said in paragraph 7, and this we take to be a unanimous view:
"There was a considerable conflict of evidence at times in this hearing and the Tribunal found that where there was such a conflict on matters of importance, we preferred that of the applicant and her witness to that of Mr Godfray."
So this is not a case where Mr Godfray's evidence was preferred to that of Miss Thurlby The Notice of Appeal which we take to have been prepared by Miss Thurlby herself, seems to us to raise three points. It reads as follows:
"An assistant asked me in the waiting room prior to the hearing if I had seen all documents to be produced by Mr Godfray as there was to be no shock treatment. I explained that I had not seen them all as to Mr Godfray's list of documents to be produced.
The assistant said she would fetch them but she did not return.I did not have sight of the 3 page statement "R1" until the hearing took place and was unable to read it properly because I would have missed evidence being given.I have not seen the statements of Mr Hammond, Mrs Parsons and Miss Radford to this date.Mr Godfray stated on oath that he gave a reference or spoke to DHL by phone. He made no such call and DHL have at no time spoken to Mr Godfray. (See Document No.1)Mr Godfray stated on oath that Tanmade Ltd has nothing whatsoever to do with ADT plc, Ltd.ADT paid my salary (See Document No.2)" [and there is a reference to various bank statements of Miss Thurlby's at various dates when she was being employed which have entries of quite substantial credits against ADT Group].
"I am appealing against the decision of the Tribunal on the grounds that Mr Godfray failed to tell the truth on oath and that documents listed were withheld from me."
and then she mentions the fact that a review had been applied for. There was a review asked for by a letter dated 5th May 1991. It was refused on the 14th May 1991 on the basis that there was no reasonable prospect of success.Looking at those reasons, the first one relates to the witness statement, which is what R1 was. It is the only exhibit lodged on behalf of the Respondent in the list kept by the Industrial Tribunal, that is at page 40 of the Bundle. There is in the Notes of Evidence by Mr Godfray of the Chairman of the Industrial Tribunal the following:

"Witness produces a statement which he reads: (R1)"

and that seems to us to indicate, fairly clearly, that the document was produced at the hearing and it seems, equally clearly, to have been effectively a witness statement. We are told, and we accept, for the purposes of the present appeal that there was an Order for discovery of documents before the hearing. That, of course does not, in terms, cover witness statements which are not, in the ordinary course of events, discoverable documents in the ordinary sense. It is of course possible for there to be an order for exchange of witness statements but there is nothing to indicate to us that that was done in this case. Nor indeed is there any suggestion that Miss Thurlby served such a notice of her evidence, but no issue arises with regard to that. The hearing proceeded in the normal way with Mr Godfray giving his evidence on oath and he was cross-examined by Miss Thurlby and he was asked questions by the Tribunal and no doubt, the cross-examination and the questions from the Tribunal were effective because not all of his evidence was accepted, as I have already mentioned.There is, however, only this question before us. Is the fact that Miss Thurlby was denied a previous sight of Mr Godfray's witness statement, and that it appears to have been before the Tribunal, enough to establish an error of law by the Industrial Tribunal? We have no doubt that that is not enough to establish an error of law because there is no general rule that witness statements have to be seen by the other side, absent an order for that to be done.The second point that is raised is that Mr Godfray is said to have stated on oath that he gave a reference or spoke to DHL by `phone. What the Notes of Evidence say on that score is this:
"I did not give a written reference to DHL. I would not want to give a reference that was a bad one. Therefore I did nothing."
The main reason why this aspect of the matter can not ground a successful appeal is that this all happened after Miss Thurlby's dismissal in November 1990. The indications are it happened in early 1991 and it can not possibly impinge on the question of whether the dismissal, which happened the previous November, was fair or unfair. The die was cast as far as that was concerned, and so there is not a basis upon which we could interfere with the decision there.Thirdly, it is said that Mr Godfray stated on oath that Tanmade Ltd has nothing whatsoever to do with ADT plc Ltd. It is perfectly clear, and indeed it was specifically found by the Industrial Tribunal, that there was a business relationship between these several companies. What the Industrial Tribunal says on this is in paragraph 6 of their decision:
"The respondent was originally shown as ADT plc but it was pointed out who should be shown as the respondent. Tanmade Ltd act as UK transfer agents for ADT plc, a company registered in Bermuda. ADT Group plc is a subsidiary of that Bermudan company."
Those are facts found by the Industrial Tribunal, whether they are right or wrong is not a matter that can be debated before us, they are binding on us and it is clear enough that the evidence before the Industrial Tribunal was that there was a business relationship between these several companies. What Mr Godfray is recorded in the Notes of Evidence as having said is:

"Tanmade Limited is not owned by ADT"

and he is also recorded as having explained the connection between ADT and a lady called Mrs Parsons. Equally, he is recorded as having said:

"Tanmade Limited are Transfer Agents for the Registrar of ADT, Bermuda."

Those are all statements of fact which we are bound by and there is no impact, that we can see, on the question whether Miss Thurlby was not unfairly dismissed in these matters of the exact company structure of the ADT Ltd or plc. It looks as though the plc is a United Kingdom company and that ADT Ltd is a Bermudan company but whatever the truth of the matter is it does not impact directly on the dismissal.Those are all the grounds that are set out in the Notice of Appeal and we have been unable to detect any basis upon which we can say that there has been an error of law and in those circumstances, although we can quite see that Miss Thurlby feels aggrieved at the dismissal, and no doubt to this day suffers the consequences of it, there is not an error of law that we can detect and the appeal will therefore have to be dismissed.