Ross v Jones Sewing Machine Co Ltd (t/a Jones & Brother) [1994] UKEAT 454_94_1307

EAT
Ross v Jones Sewing Machine Co Ltd (t/a Jones & Brother)
[1994] UKEAT 454_94_1307 · 1994-07-13
MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal against the decision of the Industrial Tribunal held at Manchester on 14th March 1994. The unanimous decision of the Tribunal, supported by extended Reasons, notified to the parties on the 31st March 1994 was that the Applicant, Mr C Ross, had been unfairly dismissed by his employer, Jones Sewing Machine Company Limited, but a nil award of compensation was made.Mr Ross appealed against the decision to award him no compensation by Notice of Appeal dated 11th May 1994.As it appeared to the Registrar that the Notice of Appeal might not identify a point of law that was arguable the matter was set down for a preliminary hearing. On a preliminary hearing the normal procedure is for the appellant only to attend, by himself, or with his representative, to try and persuade this Tribunal that he has a reasonably arguable point of law which justifies full hearing, at which the respondent would also be represented.The position today is that the Appellant, Mr Ross, has not turned up. We have received a letter dated 11th July from the Oldham Law Centre which attaches to it a proposed series of amendments to the Notice of Appeal. The letter states that Mr Ross wishes to make an application to amend the Notice of Appeal. It requests that the Notes of Evidence of the Chairman of the Industrial Tribunal should be produced, since it is now asserted in the proposed amendments that the Tribunal reached certain conclusions of fact which were not supported by evidence given to the Tribunal. The letter requests that this preliminary hearing be dealt with in the absence of Mr Ross and of the representative of the Oldham Law Centre. The letter requests that:
"the question of whether the grounds of appeal contain an arguable point of law be considered in the light of those (and the proposed additional) grounds; or, if it is felt that it be best to delay the hearing until notes of evidence have been obtained, that the hearing be adjourned until then."
We have considered the proposed amendments, the request for Notes of Evidence and the line of argument stated in the existing grounds and the proposed additional grounds.The line of argument is that the Tribunal misdirected itself in law in paragraph 11 of its decision where, having found that the dismissal was unfair, the Tribunal turned to the question of remedy and decided that there should be no basic award and no compensatory award, principally for the reason that Mr Ross knew, before the termination of his employment, that he was involved in an insurance fraud and was to be charged. The Tribunal said that if the Respondent had known this then that would have been a matter which would have given grounds for dismissal. It was a criminal charge about something outside of work, but it undoubtedly affected the Applicant's position at work in that he might be involved with customer claims relating to equipment provided by the Respondent. This misconduct only came to light after the dismissal but had taken place before the dismissal. It is relevant to mention that Mr Ross' position in the employer's organisation was that of an Applications Manager. Similar reasoning was set out in the decision not to award any compensation under s.74 of the 1978 Act. One reason given was receipt of sickness benefit by Mr Ross and therefore his unavailability for work. The other reason was the same as in relation to the basic award that it would not be just and equitable to make a compensatory award in that there was a subsequently discovered reason that would have justified the dismissal about which Mr Ross had not informed his employer.The main point taken in the original Notice of Appeal was that, in deciding to make a nil award the Tribunal had erred in law in having regard to a reason which had not at the time been considered by the employer Company. There is an error of law in considering the matter by reference to a ground which was subsequently discovered.In the additional proposed grounds the Appellant seeks to challenge the finding of fact that Mr Dinsdale of the Respondents had no knowledge of the facts relating to the charge concerning the insurance fraud. Mr Ross wishes to argue that there was no evidence to support that finding. In fact the evidence was that Mr Dinsdale was fully aware of the matters relating to insurance before the dismissal.It is largely in relation to that allegation that Mr Ross now seeks, through the Oldham Law Centre, to have the production of the Chairman's Notes.We have considered the arguments outlined in the Notice of Appeal. We have reached the conclusion that we are not in a position today to allow this matter to proceed to a full hearing. Nor are we prepared to grant the amendments or to order Chairman's Notes. As at present advised it appears to us that the case which Mr Ross is seeking to make out on the appeal is misconceived in law in the light of the decision of the House of Lords in W Devis & Sons Limited v. Atkins [1977] ICR 662 in which the House of Lords decided that, although it is not permissible to rely on subsequently discovered conduct as a ground which justifies dismissal, subsequently discovered conduct, in particular misconduct, may be relevant as to whether it is just and equitable to award compensation for unfair dismissal. That is so, even though, because it was undiscovered, the conduct could not have influenced the employer in taking the decision to dismiss. The statutory provisions provide that, on questions of compensation, the tribunal may have regard to whether it is just and equitable to reduce the amount of the award. That wide wording permits an industrial tribunal to have regard to the conduct of an employee, even though that conduct was not relied on as a ground of dismissal and was not known to the employer.For those reasons we are not prepared to allow the matter to proceed. We recognise that, as there is a train strike today, there may have been difficulties in Mr Ross or a representative of the Oldham Law Centre attending. We have formed the view that they should have an opportunity of making oral submissions in support of the matters set out in the letter of 11th July before a final decision is made. The course we propose to take is that the preliminary hearing is adjourned. It is to be relisted for hearing on a date when Mr Ross and his representatives are available to make oral submissions. If they do not wish to make oral submissions, the matter will be relisted for us to deal with on paper. In the light of the indication given earlier in the decision, the likely outcome is that, in the absence of persuasive oral submissions, this appeal will be dismissed at the preliminary stage. The matter is adjourned for relisting.