Tomlinson v Doxey [1995] UKEAT 549_94_1509

EAT

Tomlinson v Doxey

[1995] UKEAT 549_94_1509 · 1995-09-15

JUDGE HICKS Q.C. :

The appellant Mr Tomlinson worked for the respondent Mr Doxey as his workshop manager. The establishment was a small one, a garage and filling station business. Both Mr Tomlinson and Mr Doxey were qualified to conduct M.O.T. tests, but Mr Tomlinson was the senior in that respect, and in fact in practice it was he who ran the testing service while the respondent Mr Doxey concentrated on the filling station part of the business. Mr Doxey's wife was also part of the business and for a couple of years before the incident which ended Mr Tomlinson's employment there was also the respondent employer's grandson, Robert.

On 24th October 1991 after an altercation between Mr Tomlinson and Mr Doxey, Mr Tomlinson left the premises. It was after working hours - it is not that he walked out in the middle of a working day. But there was a total conflict of evidence and submission between them as to whether that altercation ending in his leaving the premises amounted to a dismissal of him by Mr Doxey or to a resignation by him from the employment.

Mr Tomlinson applied to the Industrial Tribunal and there was a hearing before the Tribunal on 21st April 1994 after which the Tribunal dismissed the application on the basis that they found that Mr Tomlinson had resigned and had not been dismissed, and full reasons were given for that decision on 4th May 1994. It is against that decision that Mr Tomlinson appeals.

His grounds of appeal, which he has developed before us, fall into three categories. Grounds 1, 2 and 9 read:

"1/.

I wasn't allowed to present my case or deliver my notes as I intended (my letter dated 13-04-94). Rules of procedure allow for written statements and informality in the conduct of proceedings.

2/.

Responding only to questions from Tribunal Staff and Respondents Solicitor gave a one-sided and therefore biased view.

...

9/.

The Rules of Procedure 1993 No.2687 were not followed in respect of rule 9.-(1) in the tribunal should seek to avoid formality in its proceedings, also rule 9.-(2) a party shall be entitled to give evidence and to question the witness. I wasn't allowed to give my evidence and I wasn't allowed my line of questions to the Respondent."

Now, as to that, the complaint that Mr Tomlinson was not allowed to give evidence or as he puts it in Ground 1. "deliver my notes" refers, as we understand it to the fact that he was required by the Industrial Tribunal to give his evidence by way oral evidence and indeed in the Chairman's comments in response to Ground 1 the Chairman says:

"... The Tribunal decided that the applicant should describe orally what happened that day rather than rely on a written statement because credit was a major issue."

As is apparent from the brief background that I have painted, that plainly was the case. And in reply to paragraph 9 the Chairman says:

"The Chairman's notes show that the applicant gave evidence in some detail, was cross examined on it and cross examined the respondent on his evidence."

The situation in which the Industrial Tribunal commenced this hearing was that they had before them the applicant's Notice of Application, which had attached to it by way of answer to the request at question 10 for full details of the complaint what is described at page 20 of our bundle, going through to page 23, as "STATEMENT OF MR E. R. TOMLINSON" and that sets out, as far as we can see, a succinct but full account, in the sense of containing everything essential of what the applicant Mr Tomlinson wished to put before the Tribunal. It would seem, as we understand it, that the further document he wished to put before the Tribunal was what appears in our bundle as the "Notes to support my statement of 27th April 1992." which we have at pages 4 to 6. When Mr Tomlinson was developing this part of his argument, one of my colleagues asked what part if any of those notes he would have wished to put before the Tribunal which was not in fact covered by the evidence, and he referred to paragraph 3 of those notes, which deals with the history of the grandson, Robert Doxey, and in particular, as we understand, placed emphasis on the words:

"3 ... I gave him every assistance, it was me who assisted his Homework (which he would present at the last minute each week). It was me that did all his repairs on his motor bikes and car."

We deal with this group of grounds of appeal, so far as the presentation of Mr Tomlinson's evidence is concerned, therefore, both in general and with particular reference to that one element which he particularly relies on as not having been allowed to put before the Tribunal. So far as the general question is concerned it is quite clear that the procedure before the Industrial Tribunal is a matter for the Tribunal and the very rule to which Mr Tomlinson refers, the "seeking to avoid formality", plainly was what informed the procedure in this case. The Tribunal took the view, and in our opinion was perfectly entitled to take the view, that where there was a direct conflict of evidence it was helpful to proceed immediately to the oral evidence of the participants. That did not in any way mean that the substance of Mr Tomlinson's case as he might have liked to put it with more opportunity for reflection and reducing it to writing was not before them, because it was before them in the shape of the statement which he had attached to the Notice of Application, and in our view there is nothing whatsoever to justify us interfering with the decision of the Tribunal on that ground.

So far as the specific example of the paragraph about Robert Doxey is concerned, the Tribunal's finding about that to which Mr Tomlinson takes objection was the phrase in particular, in paragraph 3 of their reasons:

"3. The applicant, in our judgement, for whatever reason disapproved of Robert. He was critical of him in evidence and it was the view of Robert which led to the dispute on 24 October 1991 which we have been required to investigate carefully. ..."

In our view, it is quite apparent that there was plenty of evidence upon which the Tribunal was entitled to come to the conclusion that Mr Tomlinson disapproved of Robert, and indeed he has repeated before us the very criticisms which no doubt led the Tribunal to that conclusion. It is not, as common experience shows, in any way inconsistent for a person to feel he has done his best to help somebody else and yet to disapprove of that other person; in fact, the very two often go together.

The other limb of this group of grounds of appeal is the one at the end of ground 9. We have dealt with the first part of the sentence:

"I wasn't allowed to give my evidence ..."

. The second part is:

"I wasn't allowed my line of questions to the Respondent."

The Chairman's comment on that was simply to say that:

"... The Chairman does not know to what `line of questions' the appellant refers. The Chairman may well have intervened to keep the appellant's questions relevant to the issues."

In his own written reply to that the appellant, Mr Tomlinson, says that the line of questions referred to was the sale of Langley Mill Garage (we will come back to that under a different part of the appeal later). But what Mr Tomlinson told us in his submissions in reply was that once the question of the sale of the garage had been raised he wanted to asked the respondent Mr Doxey, in cross examination, about the number of solicitors' firms who had been involved in Mr Doxey's affairs whom he had instructed for different aspects of those affairs, and that that was the stage at which the Chairman stopped that line of questioning. All we need say about that is that we find that there is no ground on which we could say that the Tribunal erred in law, if the Chairman on behalf of the Tribunal took that view that that line of questioning was irrelevant to the issues in the case and stopped it.

That deals with that group of grounds of appeal, and it really also covers, although I did not read it at the outset, ground 3, which is concerned with the Tribunal's finding that Mr Tomlinson disapproved of Robert. He says in that ground:

"In the Tribunals decision at Three (3) the Tribunal cannot say I disapproved of Robert because they have only heard one side."

But then in that very Notice of Appeal he goes on:

"In the manager in charge of workshop I was right to be critical for the reasons stated and I was right to bring the matters to the attention of the Proprietor."

As I have already indicated we are quite firmly of the view that there was no error of law on the part of the Tribunal in reaching that conclusion.

The next group of grounds of appeal all concern criticisms of the Tribunals' decision in terms of the facts found. I do not think I need read the grounds verbatim. Ground 4 puts the point that the words which the Tribunal found to have been uttered by Mr Doxey "if you walk away now I shan't fetch you back" - do not fit in to the sequence of events, since they occurred after working hours and therefore would not be logical, rational or however one likes to put it at that stage. Ground 5 draws attention to what Mr Tomlinson says is an inconsistency between the case as put by the respondent in his notice of appearance and that put by the respondent in evidence. Ground 6 draws attention to the fact that in paragraph 9 of the Tribunal's reasons the Chairman, as Mr Tomlinson puts it:

"... suggests that I should have phoned on the evening of the 24th or spoke on the following morning with a view to regaining employment, this would be tantamount to accepting the "status quo" that is Robert to do as he liked and the corruption of the MOT Test."

But when one looks at paragraph 9 one sees that the Tribunal is not in fact suggesting that Mr Tomlinson should have telephoned on the evening, in the sense of attributing to him any blame for not telephoning - it is dealing with that matter simply as part of its process of testing the credibility of the two stories because the relevant paragraph reads:

"9. ... He [ Mr Tomlinson ] asserts that he would not likely have given up such a position. Nevertheless, he made no attempt that evening to contact the respondent by telephone in order to discuss the matter further and to try and preserve his job. Furthermore, he made no attempt to do so the following morning."

So clearly, it is not a matter of referring to those matters by way of regarding them as separate blameworthy conduct, but simply using the absence of a contact of that kind as part of the process of testing which version of events is likely to have been the correct one.

Ground 7, on which the appellant placed great weight, was another contradiction, he says, in the evidence of Mr Doxey in that he referred to the job that Mr Tomlinson had been engaged upon that afternoon as a "small job" - the horn of a particular vehicle not working, whereas the documentary evidence shows that that was a job that cost over £100.00. It is quite plain from Mr Tomlinson's own grounds of appeal and from the notes of evidence that that matter was fully canvassed at the hearing. Mr Tomlinson said it was an obvious lie on the part of Mr Doxey, it was of course entirely a matter for the Tribunal to take into account how that discrepancy was to be explained, and whether it amounted to a lie on Mr Doxey's part or a simple error of recollection or could be explained in some other way, and having come to a conclusion about that to put that into the whole group of facts on which they reached their final conclusion. But what is absolutely apparent is that it was before the Tribunal and that Mr Tomlinson had the opportunity of saying everything he wanted to say about it to the Tribunal before they came to their conclusion.

That then is that group of grounds of appeal. As to that we have to say that what is the foundation of the jurisdiction of this Tribunal is whether there is a question of law in respect of which the Industrial Tribunal has erred. These are all questions of fact. If the only allegation against the Tribunal that it has gone wrong in fact, then, that as such cannot be enquired into by this Tribunal. If it is said that the error of fact is so gross that it amounts to an error of law as being what is commonly called perverse, or such that of itself it shows without more that the Industrial Tribunal must have fallen into some error of law to reach that conclusion, then that is a possible way of putting an appeal to this Tribunal but we are quite satisfied that none of these points, nor all of them put together comes anywhere near that area of perversity. That deals with that group of grounds of appeal.

The final group consists of one ground alone, which is different from the others. It is ground 8 and reads:

"8/.

The Respondents Solicitor acted improperly in raising the matter of the sale of Langley Mill Garage. This was part of my evidence to the Social Security Tribunal at which the Senior Partner of Miles and Cash found I'd been Unfairly Dismissed. I was advised by the Solicitors Complaints Bureau that there was no conflict of interest in Miles & Cash representing the Respondent providing they did not use my evidence against me, this they clearly have done. The Sale of Langley Mill Garage was never part of the Respondents case, his Solicitor at Langley Mill wasn't privy to the sale. A firm at Ilkeston was to be the Conveyancer (Horton & Page) his real friends. This is the reason for his change to Miles & Cash."

What seems to be, we think, so far as this matter is concerned, not in dispute is that the reference to the Social Security Tribunal is to a hearing to deal with Mr Tomlinson's application for benefits as the result of being unemployed following his leaving or being dismissed as the case may be, by Mr Doxey, and that in the course of the investigation by the relevant department before it reached the stage of a tribunal he had, he says, raised the question of the attempted sale by the respondent of the garage, because at that stage he thought that that might be a possible explanation of his, as he said "dismissal", since his leaving the employment of the respondent might save the respondent a liability in redundancy pay, and we take it that not only was it included in that document sent to the department but it was also raised at the hearing before the Social Security Tribunal, because that is the allegation that Mr Tomlinson makes and there is no reason to doubt it. It is common ground between the parties that that hearing was a public hearing. The position of the senior partner of Miles & Cash, Mr Tomlinson tells us, consistently with his ground of appeal, is that he was Chairman of that Tribunal, which apparently sat in April 1992, and it is clear to us therefore that the first answer and indeed a sufficient answer in itself to this ground of appeal is that that firm of solicitors were never in a position of confidence or of advising Mr Tomlinson and did not obtain any information in any such confidential or advisory capacity; what was said at the Social Security Tribunal was said in public and was public - in the public domain.

But that might be a comparatively narrow and confined way of dealing with the matter and we think it only right to look at the matter also more broadly, because what happened at the hearing in the Industrial Tribunal was that, according to the Chairman's notes at an early stage in Mr Tomlinson's evidence in chief he referred to the matter of the proposed sale of the garage. Mr Tomlinson says that that occurred under what amounted to cross-examination by the respondent's solicitor and that he, Mr Tomlinson objected to the matter ever being raised. We find it perfectly credible that Mr Tomlinson appearing in person might have been asked questions in the course of his evidence in chief by the Tribunal to assist to develop his case. It is impossible for us as an issue of disputed fact to decide whether in fact the respondent solicitor interposed at that point because we have not received evidence on either side; we simply have Mr Tomlinson's assertion on the one side, and the fact that Mr Hale for the respondent, who of course is not in a position to call or give evidence himself, but has taken instructions, makes no concession about that. It does seem to us very surprising if the matter arose by reason of the respondent's solicitor being allowed to conduct what would amount to cross-examination at that very early stage in Mr Tomlinson's evidence, especially as at page three of the notes there starts a long section of the notes expressly headed "Cross-examined", which clearly is the cross-examination and in which the question of the sale is indeed one of the matters of questioning. Then when Mr Doxey, the respondent, gave evidence, he also dealt in his evidence in chief with the matter of the sale and what he said was:

"When the sale fell through the applicant's attitude was OK but there was an atmosphere between us. He was not so willing as he had been in the past."

And that indeed would seem to accord with the sort of point that was being put to Mr Tomlinson in cross-examination, because he was recorded as answering:

"I was not disappointed when the sale to Mr Badiani fell through."

The situation therefore, in our view, quite apart from the fact that these cannot in our view possibly have been any breach of confidence, is that there undoubtedly had been an attempted sale of the garage. Manifestly that was known to Mr Doxey - he needed nothing from Mr Tomlinson to enable him to take that point if he wished to do so at the hearing. He plainly did wish to do so, because not only did he give evidence about it, but previously his advocate had cross-examined Mr Tomlinson on the point. If that cross-examination at the ordinary point had been preceeded by questions during the course of Mr Tomlinson's evidence in chief, as to which, as I say it is really not open to us to be able to make a finding, it would be surprising but would not alter the basic situation that I have described that Mr Doxey was minded to raise, was in a position to raise and was perfectly entitled to raise for what it was worth his evidence as to the consequences of the failure of the sale to go through, and indeed it is only in respect of that aspect of it that the Tribunal referred to the matter in their reasons because at the end of paragraph 6 of those reasons they say:

"Furthermore, after the sale had fallen through, the respondent discerned a change in the applicant's attitude towards him."

From that it is clear that they accepted Mr Doxey's evidence on that as indeed they did on most if not all of the matters in dispute. And that brings us back to what this appeal is really about. In our view, the Tribunal had to deal with a conflict of evidence, they were the Tribunal of fact, they resolved it in favour of the respondent Mr Doxey, and it is not in our power even to examine whether they were right or wrong about that unless an error of law has been shown. All the various possible ways of putting an error of law have been canvassed and we have dealt with them and we find that there was no such error, and we must therefore dismiss this appeal.

[Applicaton by Mr Hale on behalf of the respondent for costs]

We do not consider this a proper case in which to make an order for costs.

[Discussion as to whether appellant wished to apply for leave to appeal.

The appellant indicated that he did not.]

Since, as it were, you [addressing the appellant] have been asked to make up your mind on the spur of the moment whether to apply, I do not think that it would be right to assume that your right to do so within the time allowed has gone, and I do not think Mr Hale is suggesting that, so if on reflection, and it would have to be pretty quick reflection as you have a limited time to do so you still wanted to apply for leave to appeal we are not saying you cannot, nor am I encouraging you on the other hand to suppose that it would be granted.