Trago Mills (Falmouth) Ltd v Roberts [1993] UKEAT 726_93_0311

EAT

Trago Mills (Falmouth) Ltd v Roberts

[1993] UKEAT 726_93_0311 · 1993-11-03

MR JUSTICE KNOX : This is an interlocutory application on a rather unusual point, whether the Appellant employer should be provided (in common with the Respondent employee) with a transcript of an oral judgment that was given by the Industrial Tribunal holding that the employee had been unfairly dismissed by the employer.

There were several stages in the argument as not uncommonly happens on 18 June 1993 when this matter was dealt with in the Industrial Tribunal in Truro. The challenge which the Appellant wishes to mount is on the question whether or not there was a greater than permissible alteration in the formulation of the Industrial Tribunal's reasons for its decision as between the time when the first oral decision was given and the time when the final written version was given in full reasons sent on 28 July 1993. The point is one of principle and I need not go into the details of it.

The situation, it seems, is that there is in fact material available in the Industrial Tribunal in the shape of a transcript of the original oral judgment which would enable the doubt such, as it may be, to be conclusively resolved by comparing that with the final written reasons. On the other hand there is a letter which this Tribunal has kindly been supplied with by the Chairman of the Industrial Tribunal in the course of which he says this:

"The simple position in this case is that having given the full reasons the Tribunal then considered the financial aspects and the Respondent's representative addressed the Tribunal on the question of Polkey."

Pausing there for a minute that slightly cryptic expression "the question of Polkey" refers to the extent of the period in respect of which a compensatory award should be made on the unfair dismissal. Continuing with the Chairman's letter:

"For all the reasons clearly shown the Tribunal felt it was not appropriate to apply Polkey to our figures. We then announced the figures into the dictating machine in open Court. Having done that the Respondent's representative asked for the reasons for not following Polkey. Since it was then more difficult from a dictating point of view to go back into the main decision I can remember saying to the Respondent's representative something along the lines that I would make an insertion into the reasons dealing with his request. This was done but did not in any way affect our decision and I can only imagine that it had been failed to be appreciated that the reason for our finding was both substantive and procedural."

The short issue is whether the reason for the Industrial Tribunal's original oral decision was based on procedural irregularities or on substantive unfairness as well.

There are many cases in which this Tribunal accepts as absolutely conclusive what a Chairman says about the events and decisions below and in particular of course this Tribunal accepts loyally the account that a Chairman gives of events in the Industrial Tribunal more particularly when the parties themselves either have conflicting records or one side has no record of what factually occurred, but this does seem to me to be a somewhat exceptional case in that it appears to be common ground that the recording is available which will dispose of this question once and for all. Mr Moore who has appeared for the Appellant accepts that there must be an area of legitimate correction of the sometimes infelicitous expressions of reasons given orally by any Judge or Tribunal but what the Appellant wishes to seek to establish is that the area of alterations in this particular case went over the line of legitimate correction and into a territory the boundaries of which I certainly do not seek to define at this stage but which I can perhaps describe as illegitimate alteration.

I think on balance it would be more consonant with the interests of justice for the Appellant to have the chance of proving its case if it can and I therefore propose to direct the production of the transcript.