Fewston Transport Ltd v Johnstone [1994] UKEAT 443_93_2501

EAT
Fewston Transport Ltd v Johnstone
[1994] UKEAT 443_93_2501 · 1994-01-25

JUDGE LEVY QC :

This is an appeal by Fewston Transport Ltd against a decision of the Leeds Industrial Tribunal following a hearing on 2 April 1993, their decision having been communicated to the parties on 4 May 1993. The Notice of Appeal was received on 16 June 1993 and here in the Notice of Appeal several grounds are set out some of which have very sensibly been abandoned by Mr Kirkbright at the commencement of the appeal.The background facts to the appeal are set out in the reasoning of the Industrial Tribunal at page 8 of the bundle. The Applicant was a director and minority shareholder in the Company having a 25% stake in it. He worked as a fleet engineer, becoming transport manager. Other shareholders and directors were Tony Eyres' wife Gill Eyres, Mrs Eyres' father Colonel Bigland, who was also Chairman. The Company had forty one employees and in addition to its main operation, also had an office in Cornwall.By 1992 rumours were circulating amongst the employees about Mr Johnstone's behaviour and there were internal enquiries by his co-directors which led to his dismissal and these proceedings. In preparation for the hearing Mrs Gill Eyres, one of the Directors, made a statement. On 1 April 1993 the day before the hearing, the Regional Office of the Industrial Tribunal notified both parties that there was not going to be an adjournment. The adjournment had been sought because Mrs Eyres was not well and the decision which was notified to the parties read as follows:
"Request for postponement refused.
The director to whom Mrs Eyres reported can give evidence and it may not be necessary to call Mrs Eyres. If the tribunal hearing the case considers her evidence to be necessary the case can be adjourned in which case since the postponement is refused at the request of the applicant's solicitors, there should be no order for costs against the respondents occasioned by the adjournment."Mr Kirkbright has submitted that the letter having been sent the onus to have her called was on the Tribunal should they in any way wish to hear from Mrs Eyres. The reason why that submission was made will become clear when I explain the appeal which has been mounted before us.At the hearing the Tribunal heard evidence from several persons other than Mrs Eyres including the evidence of the employee Mr Johnstone. We do not have the notes of evidence here today because it was felt that we did not need it and I do not think we did. At the end of the day the Tribunal concluded:
"The allegation of harassment and the allegation of sexual activity by the applicant in one of the respondents' wagons were investigated reasonably thoroughly. The allegation that the applicant and Mrs Patrick were carrying on a sexual relationship was not properly investigated in that neither party was asked whether that was the case and Colonel Bigland formed a view about it on inadequate information."
Paragraph 14 sets out what Colonel Bigland did and did not do and at the end of the paragraph the Tribunal conclude with the unanimous decision:

"that the applicant's dismissal was unfair on procedural grounds."

Paragraph 15 reads:
"The dismissal was also unfair because the respondents made no attempt to consider any option short of dismissal. Such consideration should have taken place bearing in mind that the applicant was a very senior and long serving employee."
The next sentence is what, in the event, the appeal focuses on:
"We have gone on to consider the question of whether the applicant contributed to his dismissal by his conduct, both representatives having been invited to make submissions on contributory fault. We do not know whether the applicant did harass Miss Rutherford or not because no evidence has been put before us to substantiate that allegation, the respondents having contented themselves with proving that Colonel Bigland entertained a genuine belief that the applicant had been guilty of that misconduct. It would not be right for us to make any reduction in the proper compensation on the basis that the applicant had been guilty of misconduct. The applicant admits that he took Miss Rutherford out to lunch on a number of occasions and it may be that conduct gave rise to rumours but we do not regard that as misconduct justifying a finding of contributory fault. We have to consider carefully whether the applicant's failure to explain the circumstances in which he was in the cab of a wagon, which he told us was perfectly innocent, could amount to contributory fault. However, having regard to our conclusion that the applicant was unfairly dealt with by not having been given notice of that allegation in advance and by not having been told that the respondents regarded that as serious misconduct, we do not think it right to find his failure to explain himself properly in that interview amounted to conduct contributing to his dismissal."
In the course of argument Mr Kirkbright has submitted that when the Chairman had invited argument as to contribution, at that stage the Chairman should have called for Mrs Eyres' evidence to be given if they wanted further evidence. He referred us particularly to paragraphs 20 and 21 of Mrs Eyres' statement which reads:
"Alex [the Respondent here, the employee] also denied that he had ever been alone with Shirley. He did admit to being with a woman in the back of a cab on Saturday night. His response to that was that it was in his own time and his own business.
At the end of the interview my father showed Alex out to the door. My father said something along the lines of that it was a damn shame all this business. Alex agreed and said that yes he seemed to be the culprit and he would have to take the consequences."We assume for present purposes that paragraph 21, the second paragraph I have read was not secondhand hearsay, and that what Mrs Eyres said was correct. We do not accept Mr Kirkbright's submission that it would have made any difference to the Tribunal if they had called Mrs Eyres. They had Mrs Eyres' statement. Other paragraphs in the reasons of the Tribunal make it clear that they carefully considered Mrs Eyres' statement. It is right that they do not specifically refer to paragraphs 20 and 21 of her statement in their decision but they did have the advantage of seeing the employee, the Respondent here, as a witness and they having seen him were entitled to come to the conclusion they did.We turn to the paragraphs of the Notice of Appeal on which Mr Kirkbright relies:
"The decision of the Industrial Tribunal that they could find no contributory fault on the part of the Respondent was perverse.

Having found the following as fact:-

that there was a genuine belief in the mind of the Appellants that the Respondent was guilty of the allegations of misconduct [that is a reference to Colonel Bigland's evidence which I have referred to]that the Appellants had reasonable grounds on which to sustain their belief which in any event must follow4.4.1 and4.4.2 above;the Tribunal concluded that "we do not know ... It would not be right for us to make any reduction in the proper compensation on the basis that the Respondent had been guilty of misconduct."In so deciding the Industrial Tribunal paid no regard to the findings summarised in 4.3.1., 4.3.2 and 4.4.3 above."We do not accept that at all, because what the Tribunal was entitled to do was look at all the evidence which it had heard and it had heard from the Respondent itself. It clearly had those things in mind. Mr Kirkbright has referred us to two authorities, Iggesund Converters Ltd v Lewis [1984] IRLR 431 where Mr Justice Waite gave some indication as to the problem which arose where there were hearings on contribution. He has also referred us to Duffy v Yeomans & Partners [1993] IRLR 368 where, at page 371, His Honour Judge Peppitt said:"We would only add that it is in our view essential that before embarking upon a consideration of remedies the Tribunal should satisfy itself that the parties appearing before it have been given the opportunity to call evidence and to make submission on that issue".I have already referred in this judgment to the passage in the decision where the Chairman invited submissions as to contribution. If the Appellants wished to call further evidence they had the opportunity to do so. We do not accept that the reasons given for refusing to adjourn in any way bound the Tribunal to take the lead if they wanted further evidence. We accept the submission that it is the duty of the parties to ensure that all relevant evidence is put before the Tribunal. On this occasion, if relevant evidence was not put before the Tribunal, that was not the Tribunal's fault but indeed we think that Mrs Eyres' evidence was almost certainly before the Tribunal and was a matter which they considered before they came to their decision.The Notice of Appeal continues:
"In purporting to require further evidence to substantiate the allegations, when considering contributory fault on the part of the Respondent, the Tribunal was requiring the Appellants to call each and every witnesses interviewed for the purposes of the investigation into the allegations of misconduct by the Respondent. As such the Tribunal decided that, in order to properly consider the question of contributory fault it had to sit as an Industrial Jury."
We think that this mis-states what the Tribunal did. What the Tribunal said was on the evidence before it, they were unable to find there was misconduct. They were not requiring the Appellants to call each and every witness interviewed. What they were saying on the evidence they had heard, and as I have explained there was the opportunity afforded to the Appellants to call further evidence if they wanted to, they were not able to find contributory fault by the Respondent. We do not find on the evidence before them their decision was perverse.In the circumstances we dismiss this appeal.