Hutchcraft v Edwards [1994] UKEAT 505_94_2209

EAT

Hutchcraft v Edwards

[1994] UKEAT 505_94_2209 · 1994-09-22

JUDGE HICKS QC :

We have to deal with the preliminary hearing of the appeal of Mr Hutchcraft, the employer, in a case where the Industrial Tribunal found that he had unfairly dismissed the Applicant, Mr Edwards. Neither party is present, Mr Edwards because it is not the practice for the Respondent to an appeal to appear at preliminary hearings, Mr Hutchcraft because he has written to the Tribunal to say that the nature of his business means that he cannot spare the time. Nevertheless we have to consider whether his appeal should proceed or whether it should be dismissed at this stage.

The facts are that Mr Edwards was employed in Mr Hutchcraft's car repair business and that Mr Hutchcraft went on holiday for a week at the end of August 1993 and the beginning of September and alleges that on his return Mr Edwards' dilapidated car had been restored and that work had been done on Mr Hutchcraft's brother's car. Since Mr Hutchcraft's brother was a witness for Mr Edwards at the Industrial Tribunal hearing it appears that the two brothers may not be on the best of terms.

A week later Mr Hutchcraft dismissed Mr Edwards without any intervening interview or any investigation in which Mr Edwards was involved or had any opportunity to give any explanation of what Mr Hutchcraft clearly suspected against him. On that basis Mr Edwards applied to the Industrial Tribunal for compensation for unfair dismissal and the Industrial Tribunal found in his favour, awarding him compensation.

Mr Hutchcraft in his Notice of Appeal sets out the following grounds.

First he raises a point concerning the length of service used by the Tribunal, he says, for the purpose of assessing compensation. The point which he seeks to raise is that for part of the time Mr Edwards was working at the business he was not an employee but was self-employed, and only for the later part of his time there was he an employee. There is in our view no error of law shown on the part of the Industrial Tribunal. So far as that matter was before them we should certainly not assume that they did not take it into account and we see no arguable point there.

The second point raised in the Notice of Appeal also goes to compensation and the point as we understand it is that Mr Hutchcraft says that no credit has been given for the holiday pay which he paid to Mr Edwards on his dismissal. Again there is nothing in the material before us to justify concluding that there is an arguable point that the Industrial Tribunal erred in law there.

In default of appearing today Mr Hutchcraft has sent a letter developing his submissions and although they go outside the Notice of Appeal we take them into account also. His first point is that Mr Edwards, he says, stole his goods and time, but since that was precisely the reason for which he was dismissed and the question before the Industrial Tribunal was whether Mr Hutchcraft had acted fairly in dealing with that allegation that is not an arguable ground of appeal.

Paragraphs 2, 3 and 5 in his letter as we understand them all turn on the same point - and the central point in the Industrial Tribunal's decision - which was the failure on the part of Mr Hutchcraft to put the allegation to Mr Edwards, which the Industrial Tribunal found to be a lack of fairness in dealing with the matter and was the ground on which they found it to be an unfair dismissal. Nothing raised by Mr Hutchcraft in our view produces an arguable ground of appeal that the Industrial Tribunal erred in law in the way they approached that central issue.

Paragraph 6 of Mr Hutchcraft's letter repeats the point about length of service that is made in the Notice of Appeal and which we have already dealt with, and paragraph 7 repeats the holiday point, which again we have already dealt with. Paragraph 8 says that he does not understand the principle of natural justice, but that is not an arguable ground of appeal either.

The final part of his letter, un-numbered, effectively alleges impropriety by the Tribunal in making up its mind before the hearing but no material is put before us which would in any way justify an appeal on that ground and we therefore reject all the grounds which have been advanced on the documents by Mr Hutchcraft, subject to one matter to which I now turn.

In item 4 of his letter Mr Hutchcraft says that he cannot accept in relation to paragraph 8 of the Tribunal's Reasons that the breach of fairness was fundamental, and although that does not of itself take at all clearly any arguable ground of appeal it does draw attention to the terms of paragraph 8 of the Reasons, to which we had already given some thought before reading Mr Hutchcraft's letter. Paragraph 8 reads as follows:

"The failure to even discuss the matter with the applicant must be a fundamental breach of fairness. It is not in any way a procedural breach and this must in our view inevitably make the dismissal unfair. It will not be open for us to assess what the chances would be of the applicant retaining his employment had there been a meeting between the applicant and the respondent because, as I have said, the breach was fundamental."

That (although, as I have said, Mr Hutchcraft's letter does not - understandably, since he is a layman - take the point at all clearly) seems to us to indicate that it is at least arguable that the Industrial Tribunal took the view that they need not consider what is commonly called the Polkey point (because it arises out of a case of that name) namely the issue whether in considering the assessment of compensation there was the possibility, and if so how great a possibility, that even had there been a fair investigation by the employer the employee would nevertheless still have been dismissed.

It is not for us at this stage to decide whether the Industrial Tribunal were right or wrong in law in the approach that they took, but it does seem to us that it is arguable that they were wrong and we are therefore disposed to allow the appeal to go forward on that one point alone, on condition of course that the Notice of Appeal is amended so as to raise that point.

The Order we shall make, therefore, is that if within 14 days the Notice of Appeal is amended and lodged with this Tribunal raising the ground that the Industrial Tribunal erred in law in failing or refusing to consider, on the issue of compensation, what were the prospects that even if the Respondent had acted fairly in dealing with the allegation against the Applicant the Applicant would nevertheless have been dismissed, the appeal shall proceed to a full hearing on that ground only.

I said that that must be done within 14 days. Since the Appellant is unrepresented we think that the fair procedure would be for him to receive not just the formal Order of this Court but a transcript of our Reasons, and that the period of 14 days should run from the receipt of that transcript. That is the Order which we make. The appeal will, we repeat, be confined to that one point and not to any of the other grounds raised in the Notice of Appeal.