Kay & Anor v Knauf UK GMBH [1995] UKEAT 72_95_0102

EAT

Kay & Anor v Knauf UK GMBH

[1995] UKEAT 72_95_0102 · 1995-02-01

MRS JUSTICE SMITH : This is an appeal from the decision of an Industrial Tribunal Chairman at Ashford, Kent, refusing three witness orders applied for by the Applicants in this case, Mr Kay and Mr Telford whose claim for unfair dismissal is due to be heard on 2nd and 3rd February. The Applicants sought witness orders in respect of three operators employed by the Respondents. These witness orders were refused by the Chairman on the ground that their evidence was not relevant to the issues.

The Applicants, the Appellants before this Appeal Tribunal, work on the production of plasterboard at the Respondent's factory. They were suspended on 15 August 1994 for alleged misconduct on a shift on 12 August. The Notice of Appearance entered by the employer indicates that the men were dismissed for misconduct in four specific respects. It is said that they left the workplace 10 minutes before the end of their shift; second that they left their work station in a dirty and untidy condition; third that they failed to complete a product change and fourth that they failed to answer tannoyed calls for assistance in another part of the factory which calls were put out during the shift in question.

The two men were called to disciplinary interviews on 16 August and were given an opportunity to explain their conduct. On 19 August they were summoned to meetings and told that they were dismissed. Their subsequent appeals were also dismissed. The Appellants in their Originating Applications say that their dismissals were unfair; in effect because there were difficulties on the shift - production problems which were beyond their control. We are told also that they deny any form of misconduct.

They seek to call witnesses who, we are told, and the Chairman was told, will allegedly say that it was custom and practice at the factory to leave the workplace 10 minutes before the end of the shift; that it was not uncommon for a workstation to be left in such condition as would require some cleaning by the incoming shift and that it was not uncommon and was accepted practice that a product change should be left incomplete at the end of a shift.

We have not seen statements from these 3 witnesses but we are told that one of them was interviewed by the Respondents as part of their investigation into the alleged misconduct of these Applicants. The 3 witnesses have indicated that they are not prepared to attend the Tribunal unless ordered to do so by a witness order. The reason given is that they are still employed by the Company.

The Chairman refused the application for witness orders for the following reason:-

"The issue in this case is whether or not the respondent believed there had been misconduct and whether or not this belief was based on reasonable grounds. The Tribunal can only have regard to information which was before the respondent at the time of the dismissal.

The evidence of these three proposed witnesses cannot be relevant to the issue to be determined by the Tribunal."

With respect to the Chairman, it appears to us that his summary of the issues is incomplete. The Tribunal will also be concerned to ask itself whether the Respondent employers had acted reasonably in treating the misconduct, as they found it to be, as sufficient reason for dismissing these men. In any event it does appear to us that the evidence which we have been told these men should give is plainly capable of being relevant to the issues which the Tribunal will have to consider.

This Appeal Tribunal always hesitates before over-ruling a decision of a Chairman on an interlocutory matter because such matters are essentially within the discretion of the Chairman. However, we have come to the conclusion that in this case he has erred and has reached a decision which was quite unreasonable in the circumstances. In our judgment the witnesses appear to be capable of giving relevant evidence and are unwilling to attend unless ordered.

The Respondents have indicated to this Tribunal that the presence of all three of the witnesses concerned would cause practical difficulties to the operation of the factory. It is our intention in allowing this appeal to make the relevant witness orders but we express the wish and hope that those representing the Applicants at the hearing will use commonsense and consideration in the way in which they require the witnesses to attend.