ASI Glass Processing Ltd v Vincent [1995] UKEAT 1198_94_0102

EAT

ASI Glass Processing Ltd v Vincent

[1995] UKEAT 1198_94_0102 · 1995-02-01

MRS JUSTICE SMITH: This is the preliminary hearing of an appeal brought by ASI Glass Processing Ltd from the decision of an Industrial Tribunal sitting at Birmingham on 18 January 1994, which decision was confirmed at review on 9 May 1994. It is necessary to set out the sequence of events which have occurred since the dismissal of the Respondent to this appeal, Mr D.P. Vincent.

On 21 June 1993 the Industrial Tribunal, under the chairmanship of Mr Arrowsmith, reached the conclusion that the Respondent, Mr Vincent had been unfairly dismissed from his employment by the Appellants.

We are told today that, in the course of that hearing Mr Vincent untruthfully claimed, on oath, that he had been unemployed ever since the date of his dismissal. We observe that that evidence, if it was given, is not reflected in the findings of fact of the Industrial Tribunal in their decision. It would not have been directly relevant to the Tribunal's decision which was concerned only with the question of unfairness and not of compensation. It would however, have been an important matter in respect of credibility. At the conclusion of that hearing, all questions of compensation were adjourned with a view to seeing whether the parties could reach agreement.

On 20 July 1993 a letter was received by the Appellants from the Wolverhampton Citizens Advice Bureau, who were representing Mr Vincent. It put forward a claim for compensation in the customary manner under the two headings of basic award and compensatory award. The compensatory award claimed was for 32 weeks at £150 per week. There was also a claim for loss of statutory rights.

The Appellants, as we understand it, replied to the Wolverhampton Citizens Advice Bureau, stating that they believed that the Respondent had been in employment for part of the time in respect of which the claim had been made.

On 4 October the Citizens Advice Bureau replied to the letter of 22 July and their letter contained the following paragraph:

"With regard to Mr Vincent working between the time he lost his job at ASI Glass Processing and the date of the Tribunal, this is correct, Mr Vincent actually worked for a twelve week period and we have now adjusted the figures accordingly with regard to this. Mr Vincent also notified the Department of Social Security of when he was working and also the tax office, and he made no false claims".

The claim for compensation was then advanced on a different basis. Instead of 32 weeks, a claim for 20 weeks at £150 was advanced. It appears that there was a failure to agree compensation between the parties and a hearing took place on 18 January 1994. Due to an administrative misunderstanding the Appellants did not attend that hearing and the Tribunal made an award of compensation to the Respondent in their absence. They awarded the sum of £5,000. That award comprised a basic award of two weeks at £205 and a compensatory award which consisted of four items. The first two items were for total loss of net wages at £150 weekly. That was to run for nine weeks from the date of dismissal in November 1992 to 10 January 1993 at which time the Respondent had informed the Tribunal that he had found temporary work. He had also told them that the temporary work came to an end in early April and a claim for 18 weeks' loss was allowed from 4 April until 7 August 1993. There was then a continuing partial loss of £15 a week for a period of 26 weeks and a lump sum of £150 for loss of statutory rights. Thus, the evidence given on that occasion by Mr Vincent made it plain that he had indeed worked for a period between January and April 1993.

On 3 February 1994 there was a preliminary hearing at the Employment Appeal Tribunal at which the Appellants' appeal in respect of the unfair dismissal hearing was dismissed as disclosing no point of law. We are told that at that hearing the presiding Judge, Waterhouse J, also listened to the Appellants' complaints about Mr Vincent's untruthfulness and observed that the facts revealed a "clear case of perjury". We are unable to accept that. It may be that the Appeal Tribunal advised the Appellants to seek a review.

On 9 May 1994 there was a review hearing at Birmingham before the same Industrial Tribunal at which the assessment of compensation was reviewed in the presence of the Appellants. The Tribunal's Full Reasons say this:

"2 The nub of the respondent's grounds for its application [for a review] is that the applicant, Mr Vincent, lied to the tribunal at the hearing in stating that he had not earned money through alternative employment after his dismissal by the respondent by being employed elsewhere.

3 This application is based upon two letters from the applicant's representative (the CAB) to the respondent dated 20 July 1993 and 4 October 1993, both of which are dated between our original finding of unfair dismissal and our subsequent decision as to compensation to be paid by the respondent to the applicant which was dated 18 January 1994. We find no evidence of any such perjury by the applicant and we consider that the applicant made to the Tribunal in replies to our questions a full disclosure at the compensation hearing in January of his earnings (part-time) during the relevant period, which hearing the respondent never attended.

4 Consequently we conclude that our decision on compensation as issued is correct and indeed its contents are accepted as being correct today by the respondent's managing director, Mr Stevenson, who has produced no new facts to us to cause us to alter our earlier decision. We consider that the applicant at the compensation hearing made a full and frank disclosure of the earnings he made during the relevant period of his loss and these were taken into account by us in our earlier decision".

They continue, after referring to another matter.

"5 .... We are satisfied as to the truth of the full and frank disclosure of his earnings made by the applicant at our compensation hearing in January and this application is accordingly refused".

In this appeal, the Appellants contend that Mr Vincent has perjured himself and has admitted to having perjured himself, and therefore no reliance of any kind can be placed upon anything that he has ever said. This Tribunal accepts and acknowledges the extreme seriousness of perjury.

Mr Stevenson, the Appellants' Managing Director today submits first of all, that Mr Vincent perjured himself at the original hearing on 21 June 1993. We have already indicated that the Tribunal's decision gives no indication of that and there is no reference at all to any period of unemployment following dismissal in the reasons for that decision.

Mr Stevenson has also told us that at the review hearing, which he attended, Mr Vincent accepted in terms, in the witness box, that he had previously lied on oath. We have difficulty in accepting Mr Stevenson's word on this matter because we find it incredible that had such evidence been given, it would not have been referred to in the Chairman's decision on the review. It seems to us that the position is made clear by the Chairman's reference to the correspondence with the CAB. It seems to us that Mr Stevenson's complaint at the Review was that there was an implied lie in the way in which the claim for compensation was advanced upon Mr Vincent's behalf by the CAB. One can understand why he would think that that correspondence appears to indicate that a dishonest claim was being advanced.

We know not, and are not prepared to speculate, as to whether that claim was advanced as a result of a misunderstanding between the CAB and Mr Vincent or whether there was anything more serious afoot. In any event, it seems to us that there is no evidence of perjury. There is no evidence as appears from the papers, that this man has told any lies on oath before the court which is, of course, the essential feature of perjury.

Mr Stevenson's submission to us today, is not so much that an inaccurate assessment of compensation was made on 18 January, (although he has a submission to make in that regard to which we will refer shortly) but mainly that because of the perjury allegedly committed in June 1993 the Industrial Tribunal should not have found in Mr Vincent's favour at all.

That submission is unarguable. This is an appeal from the assessment of compensation. The appeal from the decision on unfairness in June 1993 has already been dismissed in February 1994. There is no evidence which could be presented to this Appeal Tribunal (or to an Industrial Tribunal) which was not available to the Appellants at the time of their appeal, in February 1994. Accordingly, there is no basis upon which this Tribunal could order a re-hearing founded on fresh and previously unavailable evidence. We are not prepared to re-open or to allow to be re-opened an appeal against the June 1993 decision. That disposes of Mr Stevenson's first point.

He has also suggested to us that there is yet further evidence that Mr Vincent had worked for more weeks than he had originally told the Industrial Tribunal in January 1994. He has produced no evidence of that to us today other than the bare assertion. Given the conduct of this appeal, and the assertions which have been made on a number of issues which have been unsupported by documents which are claimed to give them support, we are not prepared to accept that there is in existence any such evidence.

Mr Stevenson also makes a general complaint that he has been badly treated by the Industrial Tribunal, in that it has not been recognised that he has wished to safeguard the public purse by revealing what he believes to have been a fraud upon either the D.S.S. or the Department of Employment.

The point which he seeks to make could not possibly found an appeal in this case. In any event, examination of the documents reveals that his concern is quite without foundation. Mr Stevenson may rest assured that the recoupment provisions by which the public authorities investigate and reclaim any sums of money which have been paid in benefit to an Applicant between dismissal and the award of compensation have been applied in this case. Mr Stevenson may rest easy that the public purse has not been defrauded in this case. It is clear to us that there is no arguable point of law in this case and accordingly, the appeal must be dismissed.