Charlton v Walsh (t/a Lovers Lane Transport) [1993] UKEAT 858_92_0507

EAT
Charlton v Walsh (t/a Lovers Lane Transport)
[1993] UKEAT 858_92_0507 · 1993-07-05

JUDGE J HULL QC:

In this case Mr Charlton, under the Practice Direction, appeals against the decision of the Industrial Tribunal sitting at Manchester on the 21st April 1992. He made a complaint to that Tribunal of unfair dismissal.He had been employed as manager by the Respondent and the facts are all stated in the decision of the Tribunal. The Tribunal found that he had refused to comply with instructions given on behalf of his employer and that he had walked out on his job. They held that he had been dismissed when he sought to return the following day. We certainly do not propose to go all through the decision but what the Tribunal concluded by saying was this:
"7. The Tribunal considered that deliberately to disobey the orders of the owners of the business, by refusing to carry out the enquiries he had been instructed to make and by leaving on holiday when he had been specifically refused permission to do so, the applicant was guilty of gross misconduct. This gross misconduct in a General Manager was such as in the Tribunal's view to justify dismissal without notice, which is in effect the action the employers took."
It should be added that this was at a time of economic difficulty and stringency when the employer was entitled to say that, these facts being well known to every employee, he was entitled to look for loyalty and certainly to his own manager, which was the position of Mr Charlton, to comply with instructions and to do what he could to keep the business going.Mr Charlton appeared in person before the Industrial Tribunal and it was therefore the duty of the Chairman to assist Mr Charlton, so far as he properly could, and indeed the employer to put their cases properly before the Tribunal.The complaints that are made in the Notice of Appeal are as follows: first of all there is a complaint of denial of access to ledgers and correspondence which the employer produced on the day of the hearing, that is not persisted in and so we are not concerned any longer with that.Then we come to a much more important point on which we have been addressed by Counsel, it is that:
"The Chairmans cross examination of the appellant was particularly hostile, when the position of the respondents wife in the company was raised. He would not accept the appellants answer that he was unaware that she had been put in charge. He persisted with the same question until the appellant was left with no alternative, to say she was in charge."
and that averment is supported by an affidavit of Mr Pym, who apparently is a neighbour of Mr Charlton and who attended, I assume, as a friend at hearing. According to Mr Pym,

"The Chairman subsequently questioned K. Charlton:-

Chairman :Did you recognise Mrs Walsh [the Respondent's wife] as in charge?K. Charlton :No.Chairman :What position do you think she held?K. Charlton :I don't know.Chairman :Did you ask what position she had?K. Charlton :Yes but I received no reply.Chairman :Why did you not insist on an answer?K. Charlton :I did but to no avail.Chairman :Did you accept Mrs Walsh as being in charge?

K. Charlton :No."

That is the evidence of Mr Pym and Mr Pym goes on to say:
"At this point, the Chairman kept repeating the question until he had virtually bullied K. Charlton into saying that he had been left with no alternative but to accept that she was in charge."
and so the Chairman, having received a straight answer twice to a straight question, is alleged then, in what was apparently a bullying manner, to ask the same question again and again and again until suddenly Mr Charlton altered his evidence and said "yes, she was in charge" and it is explained to us by Counsel, on behalf of Mr Charlton, that that change (which on the face of it would discredit Mr Charlton's evidence) was made by him in an attempt to placate the Chairman of the Tribunal, I do not know what effect he thought it might have on the other members of the Tribunal, but that is what is said. So that is that ground.In those circumstances it was considered necessary to obtain the statement of the Tribunal on this matter. The Chairman has caused the Secretary to write to this Tribunal and the letter says as follows:
"It was the employer's case that Mrs Walsh was placed in charge of Mr Charlton and that he would not accept her authority. He did say in answer to the Tribunal that Mrs Walsh was in charge of Transport from late 1990 but that Mr Walsh would not confirm that Mrs Walsh was in charge of him. Mr Charlton then said to the Tribunal that he did accept she was in charge of him. The questioning was merely to clarify the matter which was central to the matters before the Tribunal. There was certainly no question of Mr Charlton being pressed to say something that he did not consider to be true. The answer he gave was a matter for him."
That is what the Chairman caused to be written concerning this matter.It is, to me at any rate, incredible that a Chairman should press a witness, if he has received a straight answer, in the hope that the witness will then say something which is obviously untrue or which contradicts his previous statement, and the Chairman denies that he did any such thing.The two Members of the Tribunal were also consulted. Mr Alan Platt wrote:
"Regarding the question of the Chairman being hostile, I am sure is incorrect. There are times when Chairmen get somewhat tetchy, cut people short to try to get to the point. I can recall some quite clearly, but this did not happen at this hearing, nor was anyone pushed into saying anything they did not want to say."
Miss Margaret Kendrick wrote:
"Mr Charlton was very reluctant to acknowledge Mrs Walsh's authority and the Chairman did ask Mr Charlton how he understood her position in relationship to himself. I did not perceive any hostility in the questions just a need for clarification as the issue was germane to the tribunals deliberations."
If it strains my credulity and imagination to think of a Chairman bullying a witness, or a party, to the point that he alters his story completely and tells an untruth, to suppose that that could happen in front of the two Industrial Members and for neither of them to have any recollection of it is even more incredible. One would suppose that such behaviour by the lawyer/Chairman would cause great indignation among the Industrial Members, who after all are impartial people doing what is essentially in the nature of voluntary work and anxious to see justice done, and the idea that in any tribunal such behaviour could take place without being remarked and adversely commented on by the Members, to me at any rate is incredible.I observe that what is said by Mr Pym in his affidavit is said more than five months after the event and indeed is represented in the form of a transcript, or something like a transcript, a very good note of what happened and there it is. On the face of it, it is not a credible allegation against the Chairman.Then it is said that the Applicant sought to adduce evidence that about a fortnight after his dismissal he tried to appeal against his dismissal and that the Chairman refused to hear that, saying that what he was concerned with, and what the Members were concerned with, was the fairness or unfairness of what happened at the end of July when the Applicant was dismissed. We have been shown the letter which we were told was in the bundle and could have been looked at by the Tribunal, perhaps it was looked at. It is dated 15th August 1991 and it is from Mr Charlton:
"I am in receipt of your undated letter in which you accuse me of making slanderous statements against your business and would request a personal meeting between yourself and myself to discuss both your remarks and my dismissal from your employ.
It may well be that we can also discuss the possibility of my reinstatement at that meeting. I shall be away on holiday from the 17th August [that is two days later] until 31st August inclusive but will be available any time on my return."and it is put to us that that amounted to a request to appeal under a grievance procedure. There was some grievance procedure or dismissal procedure in the Company, and it is said that the Tribunal should have considered that as part of the case of unfair dismissal. We do not think that that suggestion is capable of being maintained. The letter contains a suggestion that re-instatement might be considered; but as the Chairman rightly said what had to be decided was the fairness of what had happened earlier, when the Applicant was dismissed for walking out and refusing to observe the authority both of the proprietor and the proprietor's wife, who was in charge.There is one further point that was put to us and that is that the Chairman asked leading questions. I pointed out to Counsel my view, which I adhere to in spite of what Counsel said, that when a Chairman is endeavouring to help each side to put their case inevitably he will ask certain questions which, unlike the questions asked by Counsel in evidence in chief, are leading questions; that is, so to speak, because the Chairman is in the middle and he tries to help each side. Particular complaint is made of what is recorded at page 19 of our bundle, in Mr Pym's affidavit; the Chairman was questioning Mr Walsh:
"Chairman :Do you have a Disciplinary Procedure?

S. Walsh :(No answer)

Chairman :Mr Walsh, do you have a Disciplinary Procedure?

S. Walsh :(No answer)

Chairman :You do have a Disciplinary Procedure don't you Mr Walsh?S. Walsh :Yes.Chairman :But, of course, you would not apply the Disciplinary Procedure to your General Manager, would you?

S. Walsh :No."

Technically, of course, if that was asked by Counsel it would certainly be a leading question, but that reflected the Chairman's understanding of the situation and it was assented to by Mr Walsh. That by itself does not seem to us to be any evidence of bias. Mr Horan has said that what he is alleging against this Chairman is something which he calls "non pejorative bias". That with great respect is an expression which we do not understand. We do not find that there is any evidence of bias against this Chairman which could conceivably be accepted. We feel obliged to accept what is said by the Chairman and the Members as to what happened here.In those circumstances we cannot find that there is any point of law in this case, and the appeal will go no further and is dismissed.