Khan v Royal Jordanian Airlines [1993] UKEAT 636_92_1607

EAT
Khan v Royal Jordanian Airlines
[1993] UKEAT 636_92_1607 · 1993-07-16

JUDGE J HULL QC:

This is an appeal to this Tribunal by Ms Khan from a decision of the Industrial Tribunal sitting at London (North) which after five days of hearing starting on 27th November 1991, continuing on the 29th and 30th January and on the 20th February and finally ending on the 4th March 1992, held against Ms Khan and dismissed her complaint of unfair dismissal against the Royal Jordanian Airlines, by whom she had been employed.She entered their service in 1982 as a Cargo Sales Booking Assistant and Secretary and served under various officers of the Airline. She achieved promotion. She became a Cargo Reservations Officer in 1985. In 1989 she became Secretary to the United Kingdom General Manager of the Airline. Then she returned to Heathrow in January 1990. At that time there was a Mr Asi (sometimes spelt Aziz) who was the General Manager. He did not remain General Manager for very long; he was relieved by Mr Quntar in 1990 and in January 1991 there was a Mr Qardan, who became Cargo Manager. These events are all set out in the findings of the Industrial Tribunal which were promulgated on the 15th April 1992.The basis of dismissal was that Ms Khan had made herself offensive in various ways, to customers and to other members of the organisation, and had been a disruptive influence. The Tribunal had to enquire into that; of course the burden was on the Airline to establish it. Evidence was called; there were five witnesses, two of them senior people. Ms Khan tells us that they were ganging up, they were under the influence of their employers and were telling false stories about her. All that was enquired into by the Tribunal in what appears to have been a most patient and rather difficult hearing and the Tribunal reached conclusions on these matters adverse to Ms Khan. They were not concerned to establish the truth of the allegations against her, but they were concerned to establish that the employer had acted fairly and it was for the employer to show that.Ms Khan was represented by her Trade Union representative, Mr Mahoney, and there are no complaints about Mr Mahoney's conduct of her case. She does complain that in fact members of the Respondents' establishment were present in some numbers and they behaved oppressively by making disturbances and so forth. If anything like that happened, and certainly I am not doubting what Ms Khan said, it will not have hindered her case, it will have made the Tribunal think less well of those people and it was very unwise of them to behave in that way, if they did.At the end of the case the Tribunal, giving its reasons at some length and tracing the history of the matter, were satisfied that proper enquiries had been made. They recorded quite correctly that Ms Khan had been thought well of by some senior members, in particular Mr Asi, but they came to the conclusion that there had been a fair enquiry and that she had been fairly dismissed. Her employment ended on the 28th March 1991, although she was not required to work out her notice.There was one document which Ms Khan and her representative wished to see and an Order for Discovery was made. Before the 20th February, there came through the post to her, presumably in response to the Tribunal's Order, a copy of the document, that is at page 15 of our papers. It is a document ostensibly signed by Mr Asi himself suggesting that there was indeed a conspiracy against Ms Khan. I should say that Mr Asi was not called, he was back in the Kingdom of Jordan where he was apparently Manager of the Airline. Mr Mahoney said to the Chairman, I have this document now if you would like to see it? Ms Khan made much the same remark and wished the document to be admitted. It would have been very questionable whether it was evidence of its contents if Mr Asi was not called. It might have been necessary for the Tribunal to decide whether to exercise a discretion to admit it. At any rate Ms.Khan says that the Tribunal did not in fact see that document, it was an important document and it would have assisted her case. She complains:
"The Respondents failed to comply with the Court Order (that is to say comply at the proper time with the Court Order) dated 30th October 1991, which was crucial evidence to my case. The document was evaded. I had a copy in mid-February and was not allowed to produce it during my evidence. The Chairman said he had too many documents already and it was too late."
One would have expected that if the Advocate, Mr Mahoney, wished the document to be put in evidence he would have made the necessary application and if the Chairman had been off-hand about it, really it is a way of being off-hand to say "I have enough documents already", for the representative to say "no, I am not asking you whether you want to see it I am saying I want to put this in" and if the Chairman had continued to refuse would have asked him to make a note, there would have been the sort of event in Court which is not only noted by the Chairman but is a fairly memorable event to those concerned, because Ms Khan was saying that this was a document of great importance to her case. Unhappily, the Chairman says, no such event to his recollection occurred. There is a letter (at page 24) of the 1st June in which it is recorded that the Chairman says as follows:
". . . he wishes that you should know that he has carefully checked the very full note which he took at the hearing on February 20. It contains no record of either your client or her representative indicating that the memorandum of December 18 1990 was in their possession or applying to the tribunal to have it admitted. The lay members of the tribunal have been consulted and they confirm the Chairman's understanding of the position. That position is in fact endorsed by your earlier letter of April 27. Commonsense suggests to the Chairman that if the memorandum was in your client's possession during the hearing on February 20, a most positive application would have been made by your client's representative to the tribunal and recorded to have that document put evidence, particularly as it had been the subject of an order for discovery. But that did not happen."
and there is a letter of 17th June 1992 in which these matters are set out. It said:
"Neither the applicant nor her representative claimed at the hearing that the applicant had at any time appealed against her dismissal to Mr Asi or anyone else. It was her evidence that she wanted to resign."
Well, none of the members of this Tribunal were present. We have to say what in our view happened and we feel obliged to accept the account given by the Chairman and the Industrial Members of the Tribunal and to say that what appears to have happened, at most, is that the Tribunal was asked whether it wished to look at the document and said, no doubt quite truthfully, that it had a great many documents already. That is a very different thing from saying, we want you to look at this document and it is an important part of our case. If that had happened and if the Tribunal had refused to look at an important document it might very well be that we should be obliged to consider all the evidence and decide what, if any, effect that had had on the fairness of the hearing as a matter of law.As matters stand we can find no point of law here, the only ground on which there is an appeal is not established and in those circumstances the appeal must be dismissed.