Penny v Nationwide Building Society [1995] UKEAT 979_94_1310

EAT
Penny v Nationwide Building Society
[1995] UKEAT 979_94_1310 · 1995-10-13

JUDGE HICKS Q.C. :

This appeal turns on a single but anxious point about what happened during the final addresses on behalf of the parties at the hearing before the Industrial Tribunal.The factual background is that the appellant, Mr Malcolm Penny, had been a Grade 11 operative in the employer's warehouse, and on 13th April 1994 he was interviewed with a view to appointment to a temporary position in the printing department, and that interview was successful in the sense that he was so appointed.A central issue at the hearing before the Industrial Tribunal was whether during that interview, or upon appointment, he was promised that after a three months' trial period, if kept on in that department, he would be promoted to Grade 9, with Grade 9 pay, that being the grade of the permanent staff of that department.The opening evidence at the hearing before the Tribunal occupied a day, and final submissions were postponed to a later day. The advocates produced written submissions or skeletons for that further hearing. Mr Ford, who appeared for the applicant and appellant, therefore produced his submissions, which he entitled "Applicant's Submissions". He tells us, however, and indeed that appears to be the case from the way they are prepared, that they are indeed not full submissions but a skeleton, in the sense that they concentrate on the evidence and the facts rather than on arguments developed around the evidence and facts.It was decided by agreement, or by direction, that on that final day the submissions for the respondent employer should be the first to be made, so that Mr Ford, when it came to his turn, was having what would in the normal event be the last word. He says (and by that I mean not just that he submits, but that he has sworn an affidavit by way of evidence before us to this effect) that in the course of his submissions on the first factual issue, namely whether the alleged promise had been made, the Chairman informed him that there was no need to say anything more to the Tribunal on that point, and that taking that as an indication that the Tribunal were with him he replied:
"I am grateful Sir."
His instructing solicitor, Miss Caroline Evans, has sworn an affidavit to substantially the same effect, although in the note which she was taking, and which she produces as an exhibit to her affidavit, there is no express record of that exchange.Mr Ford in his affidavit indicates a number of matters, further points, which he would still have been intending to argue had he not been, as he recalls, `stopped'. It is apparent from Miss Evans' notes that he had indeed, at least, embarked upon the first of those points at the point at which he says he was stopped, that is to say to comment upon the correspondence between the staff association representing Mr Penny and the respondent's human resources department. He then lists three further topics which he says he was intending to deal with in his submission and which were not reached: the relevance of the appellant's letter of resignation, a document called the "Exit Questionnaire", and a particular point on the evidence of one Sally Hunt, the representative of the Staff Association.The affidavits were sent to the Chairman of the Tribunal for his comments in accordance with the usual practice where the appeal turns on the conduct of the hearing before the Industrial Tribunal. The Chairman's comments suggest that the Grounds of Appeal are unsustainable, but that suggestion is made by reference to a number of documents: the written statement of the applicant which formed a substantial part of his examination in chief, the written statements of the respondent's witnesses, also read as examination in chief, his notes of evidence (to which we have not in fact been referred) and the written submission made by the applicant's Counsel and the skeleton argument by the respondent's Counsel (both of which are before us). The Chairman's comments then go on to deal with the history of the conduct of the Tribunal, and in particular the time spent in evidence and cross-examination and so on and so forth. There is no suggestion that any of that was curtailed or that there was any irregularity in the conduct of the hearing in those respects.In dealing with the specific point made in Mr Ford's and Miss Evans's affidavits, the Chairman says:
"... the recollection of the other members and myself of the oral summing up made by Counsel has necessarily deteriorated but what we can all remember is that after we had retired certain points arose upon which I felt that the appellant's Counsel should have an opportunity to make further submissions because of something that I had said during the course of the summing-up which might have led him to believe that a certain matter was not an issue. Neither I nor the other two members of the Tribunal are able to recollect what that point was. We do, however, remember it so clearly because the respondent's Counsel took grave exception to our taking this course. Whether this point was the point raised in this Notice of Appeal I cannot say. ..."
As to that, it is common ground between the parties before us that the Tribunal did indeed reconvene to deal with a point on the basis that the applicant's submissions on it had been curtailed, but that was a different point namely the point whether if there had been a promise, and if it had been broken, the applicant had nevertheless affirmed the contract of employment despite that breach, and therefore presumably on terms which disentitled him to rely on the promise.The Chairman's comments, having referred to that and made it clear that neither he nor his colleagues can remember what the point was on which they returned, goes on to say that:
"... In making our reserved decision we took into account all of the points made in the written submissions made by the appellant's Counsel ..."
It seemed to the Chairman that there was not much more that he could have said. Therefore it was the Chairman's belief that no injustice was done.As to the central issue, whether any such indication was given to Mr Ford as his affidavit and that of Miss Evans deposes to, the stance of the respondents, who have not put in any evidence, is simply that neither Ms O'Neill, who appeared below and appeared before us, nor her instructing solicitor have any recollection of this matter.We are therefore faced with the difficult and anxious position which tends to arise in such a situation that we have the sworn evidence of the appellant's Counsel and solicitor, we have the Chairman's comments, and we have no evidence on the other side, so it is not a question of a conflict but of positive evidence on the one hand and lack of recollection on the other. It is our understanding of the way in which these matters are dealt with that the Chairman's comments if they directly deal with the point at issue are accepted, but here they do not. As the Chairman very fairly and properly says, he and his colleagues cannot remember what was the point on which they returned, although that lack of recollection is not now a matter of dispute because the parties agree about what they returned on. It is implicit in his comments that he simply cannot remember, therefore, any second point one way or the other.In those circumstances, in our view, it would be difficult even if there were no other indications to do other than accept the positive evidence of Mr Ford and Miss Evans that some such indication was given, although we take fully into account that they are not able, naturally enough, to recollect the exact words, and that the impression intended to be conveyed by a Tribunal in such circumstances may vary a good deal according to the words used or indeed even the tone of voice in which they are expressed.However, we do have in this case, in addition to what I have already described, the undisputed fact that the Tribunal did come back and ask for further submissions on the point of affirmation. Now, it is quite apparent that the point of affirmation could not arise unless there was a) a promise, and b) it was broken. Of course the fact that the Tribunal came back on the point of affirmation does not show that they had already decided that there had been a promise and that it had been broken. It does seem totally inconsistent, though, with their having already decided that there was no promise, as they ultimately did. Therefore the indication that follows from the fact of their coming back on that is that as so far as their own state of mind was concerned they cannot be supposed at that stage to have decided the issue of whether there is a promise or not against the appellant. But the fact that they did come back on that point would naturally, if Mr Ford and Miss Evans had the state of mind to which they depose in their affidavits, have re-inforced that state of mind, and they would have thought they were home and dry on the promise point, and that it was the affirmation point that was troubling the Tribunal.In those circumstances we have come unanimously to the conclusion that without in any way - because this is in no way suggested by the appellant - without in any way impugning the good faith of the chairman or his colleagues, we cannot be satisfied that justice would be seen to have been done if the matter were left in this situation. We therefore consider that we should allow the appeal and remit the matter to a Tribunal. We have not been addressed on the point whether in those circumstances, that should be to the same Tribunal, if it can be reconstituted, with a view to their simply hearing the final submissions again, or whether it should be to a differently constituted Tribunal for a complete re-hearing. We had better hear what the parties have to say about that.

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JUDGE HICKS Q.C. :

We have come to the conclusion that we should remit this matter to the same Tribunal, if it can be reassembled, for a re-hearing confined to final submissions.I should say that that is a majority decision. This particular point is not one which we think needs reasoned judgements on either side. The considerations are clear and familiar, but the conclusion which I have announced is that of Mr Manners and myself, and Mr Willis would have been in favour of remitting it to a newly constituted Tribunal.