Roberts v Liverpool Women's Hospital NHS Trust [1996] UKEAT 199_95_1903

EAT
Roberts v Liverpool Women's Hospital NHS Trust
[1996] UKEAT 199_95_1903 · 1996-03-19

JUDGE N BUTTER QC:

This is an appeal by Mrs Roberts in respect of a decision of the Industrial Tribunal at Liverpool. The hearing was on 7 October and 2 December 1994 and the full reasons for the decision were sent out on 2 February 1995.The unanimous decision of the Tribunal below was that the Applicant had not been unfairly dismissed. Her dates of continuous employment were March 1973 to 2 September 1993 when her employment was terminated summarily. The reason for the decision given by the Respondents was gross misconduct.It may be convenient to refer straightaway to the IT1. In that, Mrs Roberts made some reference to the question of trade union activities and at the end, says:
"3. Treated my own case in such an excessively harsh manner as to give grounds for believing that I may have been victimised as a result of my trade union links and activities."
The significance and potential importance of the question of trade union activities cannot be ascertained with confidence, because Mrs Roberts was not allowed to give evidence about them. It is in relation to this aspect of the case that the appeal before us lies.Mr Roberts, a Branch Secretary, had no previous experience of appearing before Industrial Tribunals but he represented Mrs Roberts and, at the request of the EAT at the last preliminary hearing, provided an affidavit as to what his recollection is.He said, in paragraph 11 of his affidavit:
"11. After the conclusion of the Respondents' evidence I then presented an opening argument on behalf of Mrs Roberts. During the course of this I began to refer to the trade union issue and I was stopped by the Chairman. He indicated that he did not wish to hear from me regarding this, but that he wanted to hear about this from Mrs Roberts in her evidence. At this time there was no indication that the trade union question could not be raised at all. On the first day of hearing additional witnesses were called on behalf of Mrs Roberts, but the case was adjourned before Mrs Roberts actually gave evidence."
In paragraph 12 of the affidavit he continues:
"12. At the resumed hearing Mrs Roberts started to give evidence, and when I started to ask about the trade union issue the Chairman stopped me. When he did this I referred to my opening submissions and the fact that I had been told that the Chairman only wanted to hear from my wife regarding this matter. The Chairman said that I had not raised the matter with the Respondents' witnesses and therefore I could not raise it now, and that is my ruling."
The Tribunal Chairman was asked for his comments and provided a letter of 13 September 1995. In general terms he accepts Mr Roberts's recollection, though there is some conflict of recollection between them. He said, in his letter:
"The appeal seems to turn on the issue of the appellant's allegation that her dismissal infringed s.152 of the 1992 Act. Her case was not pleaded as such and it was significant that this allegation was not , as I recall:
i raised at any stage in the disciplinary process leading up to her dismissal;ii argued at her internal appeal; and, most importantly for the Tribunal,iii put to any of the respondent's witnesses.The Tribunal had the clear impression that reference to her TU background was included at the end of the Originating Application merely for good measure."Further down in the page he says:
"When the question of Mrs Roberts' Trade Union connection was mentioned, I pointed out that nothing had been put to any of the respondent's witnesses under cross-examination, that the issue had not been raised - on the evidence which was not challenged - at disciplinary stage and that I would not permit him, as things stood, to open evidence which substantially changed the nature of the applicant's case. I am likely to have said - but I cannot with certainty say that I did - that if that issue was to be pursued, then we would have to recall the respondent's witnesses, with consequent delay and cost."
That latter part of the Chairman's recollection differs from Mr Roberts's who says that the question of delay and cost was never dealt with at all.We have been referred to numerous cases in relation to the question of natural justice and potential perversity. It is unnecessary for us to refer specifically to those cases. The overall principles are, in our view, clear.Rule 9 of the Industrial Tribunal Regulations undoubtedly permits informality in the course of hearings before Industrial Tribunals and the Chairman undoubtedly has a discretion as to proceedings before that Tribunal, but it is a discretion which must be exercised properly.It is, in our view, important that if a party wishes to adduce evidence which is potentially relevant and/or important, such evidence ought to be permitted to be adduced. It is not in our view sufficient for Counsel for the employers today to say that the parties must come to an Industrial Tribunal familiar with the procedure and that, therefore, if an error or mistake is made, the Chairman is simply entitled to say that that is the fault of the applicant or her representative.It must very often happen that an applicant in person or a lay representative will fail to put some particular matter in cross-examination which is of potential importance.The Industrial Tribunal must, in our view, at the very least, make an appropriate enquiry as to the nature of the evidence to be called, or more accurately the evidence which the applicant wishes to call and the significance of it.Whether or not there has been a breach of natural justice will inevitably in the end depend on the particular facts and circumstances. It is exceptional for the EAT to reach the conclusion that there has been a breach of natural justice, but regrettably it is our unanimous view that that has occurred in the present case.It is realistically conceded, on behalf of the employers, that if there has been a breach of natural justice, then the case will have to be remitted to an Industrial Tribunal and that it would not be right for the employers to argue that it would have made no difference in the result. The authorities on that last point are clear.In these circumstances, and for these reasons, we are of the opinion that the appeal must be allowed and we will now consider the question of remission.We have considered and take on board the representations made to us by Mr Jones. We are all of the opinion that, in fairness, this matter must go to a new Tribunal to consider all issues.