Charles H Allen Ltd v Rawson [1993] UKEAT 466_92_1902

EAT
Charles H Allen Ltd v Rawson
[1993] UKEAT 466_92_1902 · 1993-02-19
MR JUSTICE MAY : This case was listed today as the hearing of an appeal. In the way things have turned out we have in fact only dealt with an Application on behalf of the Appellant for leave to call additional evidence.The Respondent, Mr Rawson, was formerly employed by the Appellants Charles H Allen Ltd until he was dismissed in October 1991. He made a complaint to the Industrial Tribunal of unfair dismissal. That complaint was heard before a Tribunal sitting at London North on 6 May 1992 and the decision of that Tribunal was sent to the parties on 3 June 1992. The employer is concerned in the motor car sales industry and Mr Rawson had been employed as their general manager at their Ilford branch. He was initially employed in February 1984.On 8 October 1991 the Respondents, his employers, wrote a letter to him saying this:
"This is to formally advise you that from Monday 14 October you are to be given one months notice of the company's intention to terminate your employment. You are fully entitled to consider and prepare analysis for further discussion and deliberation, by the Directors, either for clarification or by way of mitigation. A mutually convenient arrangement can be made for this discussion to take place any time in the next seven days."
Questions arose as to whether that did or did not itself constitute instant dismissal.The original ground, as he understood it, on which he was being dismissed, was for his commercial incompetence as was alleged and the employers' answer to his complaint starts off with the words:
"Mr Rawson was initially to be dismissed for his failure to effectively manage our Ilford dealership in line with Company requirements."
However, when the time came to have the hearing before the Industrial Tribunal, the employer had changed the basis upon which they were going to resist his complaint and their case before the Tribunal was that he was guilty of gross misconduct. It apparently was their case in short that he had been indulging in what would amount to selling motor cars to himself at an undervalue, and their case was that this had occurred on a number of occasions. However, they chose before the Industrial Tribunal, only to attempt to establish one such occasion and that was in relation to a particular Ford Escort motor car. It was their case that this was a car of a value of the order of £1,500-£1,600 which the Applicant had valued for stock at £1,200 and that he had indulged in a transaction the effect of which was that he himself had acquired the motor car at that or approximately that, as they alleged, under-valued price.The Tribunal heard evidence on 6 May 1992 and, to put the matter shortly, they found robustly in favour of Mr Rawson. They also calculated compensation to which they found he would but for statutory limits have been entitled to at the sum of £32,539. They in fact awarded him £12,079 applying statutory limits.The central issue of fact which the Tribunal had to determine concerned whether the employers reasonably believed that he was guilty of gross misconduct and whether they had carried out sufficient investigations to justify that reasonable belief. Essentially the Tribunal addressed, as had no doubt the evidence, three aspects of the transaction in relation to this Ford Escort motor car. The first aspect concerned its value to the trade and they accepted that this was a motor car which was properly valued at around £1,200 because, although it was an "A" registration motor car it was in fact a 1983 motor car, and not a 1984 motor car. On that aspect of the case they found that the employers' case that this was a transaction at an under-value was simply not made out.The second aspect at which the evidence was directed. and the Tribunal's reasons also, concerned allegations that the motor car had been serviced in the workshop at no cost to the sales side of the business; alternatively at no cost to Mr Rawson. They dealt with that aspect on the facts concluding that there was no reliable evidence whatsoever that Mr Rawson had the Ford Escort serviced with a view to acquiring it for himself.The third aspect of the evidence concerned the employers' case that the motor car had been seen at Mr Rawson's home. Mr Rawson apparently gave evidence to say that when he arrived home on 8 October he had not got his Company motor car because of the dismissal proceedings in which he was concerned. He needed another motor car, so he rang up a friend of his, a dealer, explained what had happened and asked if he had a reasonable second-hand car. His evidence apparently was that this dealer said that he still had the Ford Escort which Mr Rawson said he had sold to him as a matter of business at an earlier stage, and that it was in those circumstances and on that date that Mr Rawson acquired the motor car. In substance the Industrial Tribunal accepted that evidence and as I say, they concluded in the round that in their view there was no evidence to sustain the charge of gross misconduct against the Applicant and no reasonable person looking at the product of Mr Harvey's enquiries could suppose there was. Mr Harvey was a witness called on behalf of the employer. They then went on to assess compensation.Having received the Tribunal's decision and reasons, the employer Appellant, by their managing director Mr Allen, wrote to the Regional Office of Industrial Tribunals on 15 June 1992 seeking a review. In the course of that letter they said that they were quite confident in advance of the Tribunal hearing that they had adequate evidence that the car was in Mr Rawson's possession weeks before the October date, but appreciated that on the day they did not furnish sufficient evidence in such a way as to prove this conclusively. The letter also says:
"In any case, the red Escort A100 VMP was seen on his driveway well before 8th October and somewhere within our evidence was a signed statement to that effect."
In urging their case for a review the Appellant employer sent with that letter three type-written letters all written on the same typewriter from what appear to be employees of their company, making factual statements in relation to the evidence. They also sent a photocopy of the vehicle's registration document. That photocopy showed that in November 1981 the vehicle was registered in the name of a Mrs Anne Lingley of an address at 31 Leigh Road, Canvey Island and the registration document stated that the previous recorded keeper was Gilbert Rawson, 1 Atherstone Road, Canvey Island and it then goes on to say - "Acquired vehicle on 02 09 91".The supposed relevance of that was that the registration document appeared to contain a statement that the vehicle had been registered in Mr Rawson's name on 2 September 1991, that is to say rather more than a month before the date on which in evidence before the Tribunal he said he had acquired it.The substantive effect of this letter of 15 June was to seek a review and to seek to admit upon that review evidence which had not been before the original Tribunal. The Chairman of the Tribunal considered that matter and on his instructions an answer to that request was sent on 20 July 1992. In substance the Chairman refused the application for a review and in doing so expressed among others these views:
"The Tribunal accepted the Applicant's explanation as to why he had ultimately purchased the car. Only the third part of these conclusions is challenged by the new evidence you wish to adduce. Even if it is true that the Applicant purchased a car for himself from the Respondent whilst concealing the transaction by routing it through a dealer he would not have been in breach of trust unless the car had been undervalued. It appears unlikely that, even if admitted, the fresh evidence would persuade the Tribunal that its decision was incorrect.
It is, however, very doubtful whether the fresh evidence could properly be adduced. That part of it which had only become known to the Respondent after the dismissal cannot be involved to support the decision to dismiss. That part of it which the Respondent says was known to him would clearly be available to support the conclusion that the car had been purchased by the Applicant before his dismissal. That evidence, however, was never presented to the Tribunal nor was the statement of the Applicant, which contradicted it, challenged. These aspects of the evidence were, therefore, clearly available to the Respondent at the hearing but were not presented despite numerous obvious occasions to do so."The employers now appeal against the decision of the Industrial Tribunal and in summary they seek to argue first that there was insufficient evidence to justify the Industrial Tribunal's findings; secondly that the Industrial Tribunal erred in law in that it failed to apply the proper test for cases of gross misconduct; and third that the Respondent perjured himself in the evidence he gave to the Tribunal and new evidence would have an important bearing on the question of compensation.It was only this morning that this Appeal Tribunal was aware that the Appellants wished to apply to adduce any other evidence than that which had been put before the Chairman in the Application for Review. In terms of a couple of days, the reason why this Tribunal did not have that application and that material was because of an Agreement between Counsel that it should not be put forward lest submissions might be made why the Tribunal should never see that material. But we are told that it was only very lately that the material, which we have in the event looked at, was put forward in any form as being material which the Appellants wanted to adduce.Accordingly, the Application which in the event we have considered and upon which we are now giving a ruling was made at a very late stage and was not made in accordance with the Rules which apply to an Appellant who wishes to adduce additional evidence or put additional documents before the Appeal Tribunal.The first Application was that the Appellants wanted to add two further grounds of appeal and the second Application was for leave to adduce fresh evidence as detailed in those additional grounds. The additional evidence, that is to say the evidence additional to that averted to in the letter of 15 June 1992, is contained in or referred to in an Affidavit, which we have read, sworn yesterday by Detective Superintendent John Farley of the Metropolitan Police.In this Affidavit he says that on 8 July 1992 he was asked by Mr Richard Allen of the Appellant Company to investigate a criminal allegation against Mr Rawson. There are somewhat odd aspects of this in that it is accepted that Mr Allen and Mr Farley are acquaintances and accepted that Detective Superintendent Farley is based outside the police area in which any such investigation might have taken place. Be that as it may, it appears from this Affidavit that Detective Superintendent Farley did make an investigation.The Affidavit effectively is a report of various investigations which he made, including for instance at paragraph 5 a report that on 28 July 1992 he interviewed Mrs Anne Lingley the current registered owner of the motor car and he says, in his Affidavit, that she produced the vehicle's registration document and from this he found out she had acquired it on 4 November 1991. He attests various other details about this car and this transaction and reports that Mrs Lingley said that the car was in exceptional condition and that she had paid £1,800 for it. The Affidavit also indicates that Mr Farley made an appointment to interview the Chairman of the Industrial Tribunal from whom this appeal is brought and the interview took place on 21 July 1992 which happens to be the very day after the date of the letter reporting the Chairman's decision in relation to the review. The Affidavit also refers to investigations into the whereabouts and address of a gentleman called Mr Crask who is apparently the dealer to whom this car was sold or said to have been sold in September. There is other material in this Affidavit about details of the taxation of the motor car and details of the value of another but elder motor car which may have been sold by Mr Rawson to Mr Crask in August 1991.Mr Pritchard, who appears on behalf of the Appellants urging this application today, accepts that some of the material to which I have referred was available to the Appellants, if not to be called at least to be investigated, at the time of the original Tribunal Hearing. He does not, for instance, seek to persuade us to admit in evidence material in the three type-written letters attached to the letter of 15 June 1992. He does, however, seek to persuade us to allow in evidence upon this appeal firstly the car registration document and secondly certain parts of the material in Detective Superintendent Farley's Affidavit. The parts that he seeks to persuade us to admit are those contained in paragraphs 5, 10, 11, 12 and 13 of the Affidavit. Those concern what Mrs Lingley is said to have said, details about Mr Crask's address and where it was, details about the car's taxation and details about the valuation of another car.The legal principles upon which evidence can be admitted upon an appeal from an Industrial Tribunal to the Employment Appeal Tribunal are well known. In the case of Bagga v Heavy Electricals (India) Ltd [1972] ICR 118, Sir John Donaldson then sitting in the National Industrial Relations Court said this
"Parties must not think that they can prosecute a case in front of the tribunal, appeal and come to this court, producing additional evidence which they could have placed in front of the tribunal, and then expect this court to allow them to re-open the case and add to the evidence. The rules applied by the courts are clear. Such evidence will be admitted only if some reasonable explanation can be produced for its not having been put before the tribunal of first instance and if the new evidence is credible, and if it would or might have had a decisive effect upon the decision."
In a more recent case called Wileman v Minilec Engineering Ltd [1988] ICR 318 Mr

Justice Popplewell re-formulated those considerations in much the same terms as follows:

(this is as summarised in Harvey section X at p.121(C)):
"The party seeking to introduce the new evidence must show (i) that the evidence could not have been obtained with reasonable diligence for use at the tribunal; (ii) that it would probably have an important influence on the result of the case; and (iii) that it is apparently credible"
Now in this case two things in our judgment are clear. The first is that the Appellants, by their own admission in the letter of 15 June 1991, had available to them more evidence than they chose to call at the Industrial Tribunal. They say so in terms. They do not set about in a systematic way showing this Appeal Tribunal what that was and precisely why the various bits of information and evidence that they want now admitted was not then available. Some of it plainly was available. The material in the letters which are not now sought to be admitted contain information which in part at least covers some of what it is now sought to adduce. There were, for instance, employees who were said to have information about what it was said Mr Rawson was doing who were plainly available to be interviewed and if necessary to be called to give evidence before the Industrial Tribunal.Speaking generally therefore, we are far from persuaded that the rather disparate collection of information contained in Mr Farley's Affidavit passes the first test that has to be passed if it is to be admitted. We are not satisfied that there is reasonable explanation why this material was not available at the time; nor are we persuaded that the various paragraphs of Mr Farley's Affidavit and the material that they contain are material which would have had a decisive effect or, to use Mr Justice Popplewell's expression, "important influence" on the result of the case.We also observe that this material is brought forward at a very late stage in non compliance of the Rules as to the adducing of additional evidence; in circumstances where apparently Detective Superintendent Farley was engaged in his investigations during the July time of 1992 but the Affidavit was only sworn yesterday.In those circumstances we are very far from persuaded that it would be proper to admit into this appeal the material sought to be adduced from Detective Superintendent Farley's Affidavit. On the other hand much of the criticism which can properly be directed towards that material does not apply to the single document, the vehicle registration document. Firstly that document has been available and was referred to in the Notice of Appeal. It was sent to the Chairman upon the Application for Review from quite shortly after the hearing. Secondly we are told that this was a document which was not available to the Appellants at the time of the hearing. We accept that that is correct. The explanation of how it came about was that the car was by chance seen at an address in Canvey Island. That chance spotting was followed up and as a result the eventual owner was traced and the registration document produced.Although we understand, and it is accepted that there was material available to the Appellants which they chose not to use, in the circumstances of this case it would be quite incredible if they had had that document and had not used it at the time and we accept what we are told that that document was not then available.It is urged upon us that it could reasonably have been obtained by proper enquiry. It might have been possible for an Appellant in the circumstances of this Appellant to have made extensive investigations and to have produced that document at the time. But we are satisfied in the circumstances where they did not have it, that it is the kind of document which it was reasonable for them not to have and accordingly we consider that in relation to this part of the application, the document passes the first limbe of Popplewell J.'s test.We then ask whether it is a credible document and of course insofar as it states what it states it cannot be argued with. Whether deductions are to be drawn from that or not of course is another matter. The third question is whether it would probably have an important influence upon the appeal. Since as will now be obvious, we propose to give leave for this document to be adduced in evidence before the Appeal Tribunal, it is obviously inappropriate for us to say too much about what another Tribunal might find was the importance or otherwise of the document. Suffice to say that in circumstances where an important part of the factual conclusion of this Industrial Tribunal was the acceptance of Mr Rawson's evidence that he had acquired the car on 8 October 1991 and where on the face of it there are things to be said from this document to the effect that that may not have been correct, we have reached the conclusion that it would be right for that matter to go before the Appeal Tribunal. The document could at least have an important effect on their appreciation of Mr Rawson's credibility in relation to the case as a whole. We say no more than that.Our decision is that the Appellants may have leave to adduce in evidence the copy of the registration document but otherwise their application for leave to adduce additional evidence is refused. We were asked by the Respondent to this appeal to be prepared to continue and hear the appeal whatever the outcome of the application as to evidence. We expressed some reservation about that at the outset and we are in fact clear that it would not be right for us to do so. The reason for that is quite simply this. We have of necessity seen an Affidavit of a police officer which has indicated that investigations in relation to alleged criminal activity have been made against Mr Rawson. We think that, although, of course we would if necessary do our best to put these matters right out of our mind, it would be unduly prejudicial, or at the very least seem to be unduly prejudicial, if evidence which was in law excluded had in fact been before the Tribunal that was going to consider the substance of the appeal.We have accordingly decided that it would not be right for the Tribunal as presently constituted to hear this appeal and it therefore has to follow that the appeal itself is adjourned. I should say for completeness that we were told that, although Detective Superintendent Farley made the investigation to which the Affidavit relates, matters were put before the Crown Prosecution Service to consider whether proceedings should be taken and we were told that the decision was that they should not.(((((((((((((((((((((((((((((((((...This is an application for costs in circumstances where it is accepted that there had been some unreasonable delay and where we all consider that there has been some unreasonable conduct of the proceedings in that applications were not made in due order.We have indicated that we propose to make a costs order in principle and we think in the circumstances, bearing in mind that it may well have been the case that some application would have been needed, that the right costs order is that the Respondent should have 60% of his taxed legal aid costs of today.