Gentle & Ors v Perkins Group Ltd [1993] UKEAT 871_93_1811

EAT
Gentle & Ors v Perkins Group Ltd
[1993] UKEAT 871_93_1811 · 1993-11-18

JUDGE B HARGROVE QC :

This is an appeal against an Interlocutory Order which was communicated to the proposed Appellants on the 19th October 1993.There had been a hearing before the Industrial Tribunal which had taken place on 7 days between the 29th September 1992 and the 20th January 1993. It is not my purpose to go into the background to that save to say that it concerned the question of redundancy of all the three gentlemen involved in this matter. The employers claimed that they had been made redundant. The employees maintained that they had been unfairly dismissed and, in short, there are allegations of bad faith by the employers in respect of the manner in which the redundancy procedures and selections took place.One of those allegations was that the reason for the selection of these three men for removal, to use a neutral expression, from the firm, was because they had complained against their superior in relation to his time-keeping and the method he used for recording it. They say that that was the reason for them being regarded as less than desirable employees and that all the rest of the procedures were little more than a sham to ensure that they were the three who found themselves dismissed. I emphasise that in saying that I am not in any way indicating a view one way or the other.The three Appellants then found they had, so they say, in their possession, certain documents and they wished to put that forward as fresh evidence, and fresh evidence at a review hearing. That review hearing has not yet taken place and the reason is that the Chairman refused the Appellants Witness Orders in respect of four individuals, who I understand had given evidence on oath at the Tribunal hearing, and the intention was that those individuals should be confronted with the fresh documentation.The Chairman gave his decision in these words:
"I am not prepared to order witnesses to come just to go over old ground. What I suggest Mr Robinson does . ."
I interpose here that Mr Robinson has been the spokesman for all three:
"is to interview his prospective witnesses through taking up the offer of Messrs Wragge & Co in their letter of 13 October, show them the new documents, and prepare a statement of what it is hoped they will say, after interviewing them and seeing what they agree they would say. It is not enough to just hope they say what is set out in the letter. I do not insist the proposed witnesses sign the statements but it must be a realistic expectation of what the witnesses will say based upon something solid, like an interview."
The approach to that by the Appellants is that sometime before there had been a fax memorandum sent around by the Respondents' employee, a Miss Brown, instructing employees not to reply to the Appellants' letters and they therefore had no faith in the sincerity of that offer. One can say in passing that it appears that the Chairman had no doubt that facility was open and suffice it to say that that facility was not taken up.The Tribunal Chairman sought from the Appellants details of what they hoped to achieve by this exercise. Unfortunately that is all that it got, a series of hopes, which as far as I can make out, accompanying a letter of the 15th October 1993. I can summarise that fairly extensive document by saying that it does not contain any solid evidence which any of these proposed witnesses has in fact said he or she will deliver. What is said is that there is a hope on the part of the Appellants that these individuals will make admissions of various sorts. Indeed, it is put quite frankly before us today that it is hoped that these witnesses will admit, perhaps not all of them but some of them, that they did not always tell the truth on oath. That is a further difficulty to which the Chairman does not refer. There is problem facing any litigant who calls a person to say "I told lies before and I am telling the truth now" That is the first difficulty, but the second difficulty is even greater. A witness being called and it being put to him straight away "you told lies on oath before", is being accused of perjury. He must be warned of the likelihood of criminal proceedings, and that witness therefore has an option as to whether he gives evidence or not even if he had originally been ordered to come.Looking at all the matters it is quite apparent that what was intended here was not a straightforward bringing forward of persons who could give fresh evidence but it is an endeavour to place before a court a series of individuals who will then be interrogated. While the Appellants here point out that justice has got to be done it is to be remembered that justice is a two edged sword and the individuals who have already given evidence, and who are merely being sought to be ordered forward to be cross-examined, have rights as well.In our view there is absolutely nothing here to cause us to regard the Chairman's view and exercise of his discretion as anything other than perfectly proper.Before leaving this matter can I refer to one particular cause of complaint which the Appellants appear to have. They say that the Chairman's letters were confusing. First of all it is difficult to read the correspondence in this case without being struck by the care, concern and invariable courtesy shown by this Chairman. It goes far beyond the call of duty, and one is lost in admiration as to the extent to which he has gone to assist these Appellants. It is said that he has said that they can call witnesses and then refusing this application, and that is contradictory. Of course a little analysis shows it is nothing of the sort. What he was saying was that if you have witnesses you wish to bring forward please do but I am not going to force individuals to come forward merely for the purpose of being interrogated to see what evidence they can give.In these circumstances this appeal fails and is dismissed.