Winter v St Helens Metropolitan Borough Council [1995] UKEAT 736_94_2807

EAT
Winter v St Helens Metropolitan Borough Council
[1995] UKEAT 736_94_2807 · 1995-07-28

JUDGE BUTTER QC:

This is an appeal by Mr D Winter against a decision of the Industrial Tribunal at Liverpool after a hearing on 22 and 23 March 1994. The Tribunal decided that he had not been dismissed and in those circumstances did not have to go on to consider the question as to whether a dismissal had been unfair.His case was that he had been unfairly dismissed by reason of selection for redundancy, and that he had, in effect, been forced to apply for voluntary redundancy. He did so under protest and duress. The Respondents deny that he had been dismissed. The Tribunal heard evidence and reached the conclusion that there was not any pressure applied to the Applicant. They unanimously decided that the termination of the Applicant's contract of employment was by mutual agreement.There is only one ground of Notice of Appeal which is relied upon by Mr Winter. That is in relation to the question of evidence by Mr Featherstone, whom he says was prevented from giving evidence on his behalf before the Industrial Tribunal. Mr Winter does not desire to pursue the other matters contained in the Notice of Appeal. In their decision, the Tribunal stated in paragraph 4 `The Tribunal has heard evidence from the applicant and Mr Featherstone' and then goes on to identify a number of other witnesses who were called.

(b) of the Respondents' answer, they say:

"The Tribunal asked Mr Featherstone to indicate what the nature of his evidence would be. Having been told of this, the Tribunal determined that Mr Featherstone's evidence was not relevant to Mr Winter's case."
On page 3 is a letter dated 8 September 1994 on behalf of the Chairman of the Tribunal. The Chairman apologised for the error in paragraph 4 and stated that `Mr Featherstone did not give evidence'. The letter goes on to say:
"The Chairman's Notes of Evidence show that the applicant wished to call Mr Featherstone who would say that he was employed by the respondent and was made redundant and was disabled and that the respondent unfairly dismissed him.
The Tribunal unanimously agreed that Mr Featherstone would not assist the applicant and would not allow him to be called."It is of interest to look at the Notes of Evidence. At page 48 this is recorded:
"The applicant then stated that he wished to call a witness who would say that he was employed by the respondents and made redundant and is disabled and that they unfairly dismissed him.
Mr Golinksi, counsel for the respondent said he would accept that that person was in dispute with the respondents. The applicant said this person had conversations with Mr Danson and if he didn't take voluntary redundancy he would be made compulsory redundant.The Chairman stated Tribunal unanimously agreed that this witness's evidence would be of no assistance to the applicant, but will allow him to be called."It is reasonably plain that that is another mistake, because everyone agrees that Mr Featherstone did not give evidence and it is reasonably plain that the Tribunal decided that he should not be called.Today we have had the advantage of considering a witness statement by Mr Featherstone, because we felt it would be of assistance to determine whether there was anything in that statement which was relevant, or might reasonably be regarded as relevant, to the issues in dispute. It is important to bear in mind that Mr Winter was not represented at the Industrial Tribunal. If asked by the Tribunal as to the relevance of Mr Featherstone's evidence and he had said, this evidence is relevant to the question of duress, we would like to think the Tribunal would then have agreed that it should hear that evidence. The argument was not presented perhaps with that degree of clarity. In the result, the Tribunal deprived the Applicant of adducing evidence which on our assessment of the witness statement, was potentially relevant. Reliance is placed by Counsel on behalf of the Respondents upon Rule 9(1) and (2) contained in Schedule 1 to The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 . Rule 9(1) reads:
"(1) The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings.
(2) Subject to paragraph (1), at the hearing of the originating application a party shall be entitled to give evidence, to call witnesses, to question any witnesses and to address the tribunal."It is plain that the Tribunal had a discretion as to what evidence it would permit to be called before it. It is however a discretion which must be exercised judicially. Reference has been made to the case of Aberdeen Steak Houses Group Plc v Ibrahim [1988] ICR550 . It is unnecessary to read out paragraphs from that decision. Although it is plain that the discretion is with the Chairman, it is also plain to us that the discretion must be exercised appropriately.The decision of this Tribunal is not authority for the proposition that an Industrial Tribunal is obliged to hear every witness upon whom a party wishes to rely. It is in our judgment, however, important that a Tribunal should ascertain with care the potential relevance of the proposed evidence and not debar a party from calling evidence which might, not necessarily would, influence the ultimate decision of the Tribunal. In the present case, we conclude that there was an insufficient investigation as to this important aspect and that, in the result, Mr Winter has a legitimate grievance that he was prevented from calling a witness who was potentially relevant. In our view, the decision of the Tribunal itself is therefore potentially flawed. If Mr Winter considers it of value to pursue the proceedings further, then in our judgment this can only be done by our remitting the case to a differently constituted Tribunal, to consider: was the Applicant dismissed and if so, was the dismissal unfair?For the reasons which I have indicated, we are all of the opinion that the appeal must be allowed.