Rooff Ltd v McIntyre [1995] UKEAT 676_95_3011

EAT

Rooff Ltd v McIntyre

[1995] UKEAT 676_95_3011 · 1995-11-30

JUDGE BYRT QC:

This is an appeal against a decision promulgated on 27 April 1995, when the Industrial Tribunal sitting at Stratford unanimously found that the Applicant, who is now the Respondent to this appeal, had been unfairly dismissed.

The facts as they appear in the Tribunal's reasoning are as follows: the Respondent, Mr McIntyre had been employed by the Appellants as a storekeeper since April 1970, that is 23 years before the date of his dismissal. Early in September 1994, shortly before the close of business, the Appellants' Managing Director, Mr Martin, sought out Mr McIntyre where he was working, and told him that the company was closing its stores, and that in consequence, his position had become redundant. He was to leave on 14 October and be given 12 weeks notice. That would be 6 weeks working and 6 weeks pay in lieu.

The issue which arose in the narrative was reflected in the evidence of Mr Martin and Mr McIntyre. So far as Mr Martin is concerned, he said that he discussed Mr McIntyre's position with him in full during the course of the meeting he had with him, and that generally he consulted him fully on that occasion. In the course of the discussions, he offered him alternative employment. Mr McIntyre's evidence was that that meeting was the only occasion that Mr Martin discussed the matter with him, and that he himself was aggrieved at the peremptory manner in which his dismissal was announced. He said there was no consultation with him before the dismissal and he certainly was not offered any alternative job. The Tribunal decided they preferred the evidence of Mr McIntyre to that of Mr Martin. They were satisfied that there was only one meeting in which these matters were dealt with. They were satisfied that there had been no consultation with Mr McIntyre prior to this occasion and there had been no attempt to find him a job elsewhere. They went on to say that if there had been consultation, they feel sure that another job could have been found for him.

In conclusion, they decided that Mr McIntyre had been dismissed, that the basis of his dismissal was redundancy, but by reason of the procedures leading to that dismissal, they found the dismissal was unfair. In due course, they assessed the compensation to which he was entitled. They took the view that here was a man aged 60, he had not been able to get another job, but owing to the fact that the Respondents were regularly losing staff through redundancy, they thought it right and proper to limit his compensation to payment of 26 weeks wages. There is a cross-appeal entered by Mr McIntyre in respect of that assessment of compensation.

On those facts and those findings, the Appellant's case is as follows: it is said that both sides were unrepresented before the Industrial Tribunal, that the dismissal was conceded and so the employer side went first. The Managing Director of the Appellant company, Mr Martin, gave evidence. We do not know when that evidence started but it was completed in time for the luncheon adjournment. What Mr Martin says then happened is set out in paragraph 15 of an Affidavit which he filed as a result of the direction by this Tribunal. He says that he had with him two witnesses at the Tribunal, a Mr Carter and a Mr Nicholls, and that when the parties came back after the luncheon adjournment, the Chairman asked him whether he had finished presenting his case. When he said no, he had two witnesses, the Chairman looked unhappy and appeared to "roll his eyes". As a result of that, Mr Martin said to the Tribunal that:

"... if the Tribunal accepted my evidence as being accurate then there would be no reason to call my two witnesses if the Tribunal did not want to hear them in order to save time. I understood that the Chairman agreed with that, in other words he indicated that he did not want to hear the other two witnesses because he accepted my evidence as being true."

In effect, he was saying that the Chairman misled him into believing that he accepted his case because the end result of the deliberations of the Industrial Tribunal was that they preferred the evidence of Mr McIntyre to that of Mr Martin.

Mr Hollander who appeared on behalf of the Appellants, then referred to the Chairman's Notes which have been ordered in this case. In those Notes amongst the evidence, the Chairman has recorded this:

"Chairman noticed that Mr Martin had other witnesses with him in the room. He asked whether they were to give evidence which Mr Martin had not given. He [Mr Martin] indicated that their evidence was merely corroborative. In the circumstances he decided not to ask them. He was certainly not prevented from calling them."

Mr Hollander then addressed us on how those remarks were compatible with the recitation of facts, set out in Mr Martin's Affidavit. He submitted it was clear that the Notes from which I have just read, were not a contemporary record, but merely the Chairman's recollection, entered into after the event when the Chairman's Notes were sought. The second point he makes about them is that the questions the Chairman asked, namely as to whether the evidence of his two witnesses would add to the evidence already given to Mr Martin, and Mr Martin's reply that they were merely corroborative, indicates that a confused situation had arisen, one which was calculated to mislead and confuse Mr Martin. Mr Hollander submitted that as a result of the Chairman's intervention, a breach of the rules of natural justice had occurred, sufficiently serious to merit this case being remitted to a differently constituted Industrial Tribunal for a re-hearing.

Mr Hurst, who appeared for the Respondent, said that it was not surprising, in a case where litigants in person were appearing, that the Chairman should intervene. It is accepted it is the responsibility of the Chairman, on those occasions, to ensure that the evidence was limited to relevant issues and appropriate steps taken to prevent the proceedings getting out of hand. Far from saying however that that gave rise to a breach of the rules of natural justice, it was what one would ordinarily expect to happen where the litigants were in person. We accept his main proposition to the effect that the parties had a right to decide what evidence they wished to call and thereafter to call it. A breach of the rules of natural justice only occurs where the Chairman acts in such a way as to prevent a litigant calling the evidence he wishes to call or acts in such a way as to overbear the litigant, so as to make it a travesty to say the litigant had a duty and a right to choose the evidence he wished to call. To amount to a breach of the rules of natural justice, the Chairman has, in effect, to take the conduct of the proceedings out of the hands of the litigant.

We have to ask ourselves as to whether that is what happened in this case. We begin our observations by noting that Mr Martin, the principal witness for the Appellants, was the Managing Director of a company of some considerable substance who himself was not without experience of appearing before the Industrial Tribunal in view of the fact that he had conducted two cases previously. He was obviously, by reason of his position, a man of reasonable intelligence, a man, one supposes, of reasonable resolve. One therefore has to ask oneself whether this is a situation in which the Chairman did effectively take control of the proceedings, out of Mr Martin's hands. When considering that, we have to look at the explanation set out in Mr Martin's Affidavit.

We find it is difficult for us to accept the statement contained in that Affidavit at its face value. We find it surprising in the first place that Mr Martin should have invited the Tribunal at that early stage to reveal its hand about the acceptance of his evidence and, likewise, we find it surprising, to say the least, that the Chairman at that early stage, ever before the Tribunal had heard the evidence of Mr McIntyre, should have given an indication that it accepted Mr Martin's evidence. We find, having regard to the position of Mr Martin in this company, and the explanation he has chosen to tender before us as to what happened to account for his failure to call his witnesses, that there was no question of Mr Martin having been overborne by the Chairman. Mr Martin had to decide whether to call these witnesses and doubtless there were various considerations he had to take into account when making his decision. Part of those considerations probably was whether the witnesses would add anything to the substance of his case, whether it would be politic or forensically desirable for him to call them. We are satisfied that Mr Martin himself was making the ultimate decision and he knew that it lay with him.

However, we would wish to say this: that where a Chairman is handling litigants in person, and chooses to intervene for the purposes of regulating and controlling the proceedings, he necessarily has to proceed with caution. This is especially the case where the litigants in person are less sophisticated and more likely to be overborne than Mr Martin was. Here, we are satisfied there has been no breach of the rules of natural justice and accordingly no ground to remit this matter to the Industrial Tribunal for a re-hearing.

There is a second ground, advanced by Mr Hollander. The Tribunal found that there had been no proper consultation during that one meeting. That in itself would have been sufficient for them to have found that the dismissal was unfair. They also found that there had been no offer of alternative employment. Mr Hollander says that, having disbelieved the evidence of Mr Martin, there was no other evidence from which the Tribunal might infer there was alternative employment for Mr McIntyre. We do not accept that submission. Mr Hurst submits that there was a modicum of evidence from which the Tribunal could have drawn the inference, bearing in mind the size of the company, Mr McIntyre's own evidence about the probability of there being other employment and the fact that he was only too willing to take any job offered. We accept that submission. In any event, we are satisfied that the burden rests upon the employer to establish that consultation would not have made any difference. On that ground too we find that there is no basis for this appeal.

I can deal with the cross-appeal, entered on behalf of Mr McIntyre, quite shortly. In assessing the compensation due to him by reason of the unfair dismissal, the Industrial Tribunal had to take into account a number of imponderable factors, including the age of Mr McIntyre, and the rate at which this company was declaring redundancies. They had to do the best they could on the evidence available, and undertake what in any event is a difficult problem of assessment. The Industrial Tribunal came to the conclusion the fair and proper assessment was that he should be compensated to the tune of 26 weeks wages. This is a matter for the Industrial Tribunal to make a decision about. We think that it is not within the realm of this Tribunal to interfere with the judgment they came to. In all the circumstances we dismiss the cross-appeal.