Kwik Save Group Plc v Rowland [1993] UKEAT 535_93_1907

EAT
Kwik Save Group Plc v Rowland
[1993] UKEAT 535_93_1907 · 1993-07-19

JUDGE J HULL QC:

This is a statement of the reasons of the Employment Appeal Tribunal for allowing the appeal of Kwik Save Group plc against the decision of the Industrial Tribunal, London (South) (Case Number 32436/92/LS/B) contained in two letters dated 13th and 14th July, refusing the Appellants' request for an adjournment of a hearing listed for three days on 21st, 22nd and 23rd July 1993, ie later this week.Mr David John Rowland, Store Manager, formerly employed by Kwik Save, applied to the Industrial Tribunal for reinstatement in his former employment on the ground that he had been unfairly dismissed on 26th March 1992. That application was made on 8th June 1992.The case is a serious one. Mr Rowland was evidently Store Manager at Kwik Save's supermarket in the High Road, Tottenham, London. Serious irregularities were discovered at the supermarket and after an investigation a disciplinary hearing was evidently conducted by Mr Hex, the Area Manager. Mr Hex heard, among other things, that over a twelve week period more than £150,000 of stock had "disappeared" from the supermarket. Mr Rowland is said to have accepted that he had altered clock cards to disguise various matters, and to have maintained a "ghost" employee on the store records. Mr Hex also found that Mr Rowland had on occasion misappropriated stock from the stores. He decided to dismiss Mr Rowland summarily and after an appeal the dismissal was upheld.According to an affidavit by Miss Adderley, Solicitor for Kwik Save, they were expecting the Industrial Tribunal to hear the application on 5th and 6th May this year; but shortly before this date it became apparent that this was to be a "directions only" hearing. At this hearing the parties were offered a three day hearing on 21st, 22nd and 23rd July. Kwik Save were unable to confirm on this occasion that all their witnesses would be available but on 10th May they wrote to the Regional Office of Industrial Tribunals for London (South) saying that one of their witnesses would be out of the country from 19th July for two weeks. They accordingly asked for a further postponement of the hearing, and asked for the matter to be placed before a chairman as soon as possible. This letter, for reasons of which we have no knowledge, received no reply from the Regional Office and so, about six weeks later on 21st June, Kwik Save's solicitors wrote again, once again asking that the request should be put before a chairman. On the same day, however, the Regional Office wrote, not acknowledging the letter of 10th May or dealing with it in any way, but simply giving notice of hearing for 21st July.On 25th June Kwik Save's solicitors replied referring to their letters of 10th May and 21st June and saying that they would be grateful to hear from the Regional Office as soon as possible.Nothing further was heard until 12th July, when Mrs Adderley, Kwik Save's solicitor, telephoned the Regional Office and was told for the first time that the application had been put before the Chairman on 9th July, nearly two months after it was made, and had been refused. Mrs Adderley wrote the next day, on 13th July, and asked for the application to be considered.Mrs Adderley understood that the Union of Shop, Distributive and Allied Workers, who were appearing for Mr Rowland, had no objection to the proposed postponement, and she was perfectly right about this, on 16th July the Union wrote to her confirming that they had informed the Tribunal Office by telephone on no fewer than four occasions that they would agree to a postponement.Formal notice of the decision of the Chairman, whose identity does not appear from the papers, was given to Kwik Save's solicitors by letter dated 13th July. It baldly said that the request for a postponement was refused, and made no apology for the extraordinary delay which had occurred in dealing with it. Moreover the letter gave no reasons for the decision apart from a sentence saying:
"The Chairman further directs that the Tribunal will get on with it as far as we can and if necessary then adjourned [sic] for the witness to attend."
Next day another letter was written by the Regional Office saying that the Chairman:
"instructed me to inform you that the Respondents request for a postponement is refused for the same reasons as previously given. Furthermore the Respondent's may wish to consider whether the missing witnesses' evidence can be provided by statement/affidavit."
It appears that the missing witness is Mr Hex, the Area Manager who conducted the dismissal hearing and who decided to dismiss Mr Rowland summarily in view of his very serious findings against him. We are at a loss to understand how the hearing could proceed without his attendance, or how his evidence if given on affidavit and not tested by cross- examination could in the circumstances be expected to be satisfactory, having regard to the very serious nature of the allegations.More disturbing to us are the extraordinary and unexplained delay in dealing with Kwik Save's request for a postponement of the hearing, and the failure of the Chairman, when he eventually dealt with the matter about two months after it was raised, to give reasons for what on the face of it is a draconian decision. Bearing in mind that the application was made in an entirely rational and courteous manner, within five days of the hearing when the dates in July were first offered, was expressly assented to on four separate occasions by Mr Rowland's advisors, and was not dealt with for nearly two months, less than a fortnight before the proposed hearing, we are quite unable to understand what reasons could justify such a refusal. We are well aware of the need for industrial tribunals to avoid wasted time, of the need for all parties to avoid delays, and the desirability of the principle that every effort should be made to keep to dates which are fixed for the convenience of the parties. None of this, of course, can override the elementary need for a just and fair hearing.We are left with the unhappy impression that Kwik Save must feel that they have been treated in an offhand and cavalier manner by a Tribunal whose principal task is to ensure that employers themselves observe the elementary principles of fairness. We are particularly concerned by the unexplained delay on the part of the Regional Office, which has not apparently been the subject of any apology, and by the failure of the Chairman to give his reasons for the decision which he reached. It will be appreciated that we make these observations having heard only one side of the case and seen such documents as have been laid before us, and therefore we say no more than that this appeal must be allowed on the basis that we are all of opinion that this was a decision which no reasonable Chairman, duly acquainting himself with the facts as we understand them and correctly directing himself as to the law, could properly have reached. The hearing before the Industrial Tribunal is to be adjourned to a date to be fixed in consultation with the parties.