Piers Cars Ltd v O'Donnell [1996] UKEAT 837_95_0403

EAT
Piers Cars Ltd v O'Donnell
[1996] UKEAT 837_95_0403 · 1996-03-04
MR JUSTICE HOLLAND : We have before us an appeal from a decision of an Industrial Tribunal sitting at Brighton on 21 April 1995, which decision was subsequently expressed by way of extended reasons of 20 June 1995.The Tribunal had before it a complaint by Mr Graham O'Donnell alleging unfair dismissal by Pier Cars Ltd. In the result the finding, unanimous, was that the Applicant had been unfairly dismissed and that he was entitled to compensation totalling £6,102, that is, a basic award of £384 and a compensatory award of £5,718. It was further decided that the Recoupment Regulations should apply.The case that the Tribunal had had to consider was as follows, at least in short summary. Mr O'Donnell had been employed by the Respondents as a radio operator. There was an unusual arrangement with respect to his income, part thereof was paid by way of a wage and part thereof was paid directly by self-employed drivers.Coming to the crucial chronology, it is as follows. On 11 August 1994, Mr Simon Clowes, one of the drivers, together with a Mr Taylor, convened a meeting at Mr Taylor's house, which meeting was to consider the potential for setting up another private-hire company. That meeting was attended by Mr O'Donnell. It seems that Pier Cars, the Respondents, had become aware of the meeting and had taken steps to have a tape-recording made of it secretly.On 12 August Mr O'Donnell went in to work in the normal way. It seems that in the course of that day a meeting was held by the Respondents' management at which a decision was made that something was to be done about the meeting and those who attended it. As to precisely what the decision was, there is no finding by the Industrial Tribunal, but certainly it appears that as a result of the meeting a letter was sent to Mr O'Donnell stating:

"We have no alternative but to suspend you indefinitely."

That letter was, in fact, received by him on Monday, 15 August.As to Saturday, 13 August, the findings are as follows:
"... the Applicant again went into work. He became aware that day that the Respondent was aware of the meeting on 11th August. At sometime during that day Mr Skevington came in and told the Applicant that as he had attended the meeting on 11th August and as the Applicant was directly involved in setting up a rival organisation he could no longer be kept on. The Applicant was asked to leave and was told the decision had already been taken by the Respondent's committee."
The Applicant thereupon ceased to work for the Respondents and, turning to the subsequent events, there is little enough to note that is material to this appeal. There was a brief exchange of letter between solicitors, in the course of which the solicitors for the Respondents placed reliance upon the tape recording as evidencing what had happened during the meeting. Finally, on 23 February 1995 this new business did start up and Mr O'Donnell jointed it to work in his old capacity as radio operator.Turning from those facts to the decision appealed from, it is important to note that at the hearing before the Industrial Triobunal both sides were unrepresented. It is also important to note that at that hearing the Respondent sought to have admitted in evidence what was described as "a rough transcript" made from the tape taken on 11 August. The Tribunal refused to allow that transcript to be admitted in evidence and their decision is no longer queried. The reason emerges from the extended reasons. It is as follows:
"The person who made the recording was not present at the Tribunal to give evidence and the `rough transcript' was evidently selected extracts from different parts of the recording. Neither the tape recording nor the `rough transcript' had been disclosed in advance of the Tribunal hearing to the Applicant. The Applicant gave evidence that he had been at the meeting but he did not recognise any of the conversation from the `rough transcript'."
Turning to the way in which the Tribunal approached the matter, and thereby to this appeal, we are concerned first of all with its findings with respect to section 57(1) of the Employment Protection (Consolidation) Act 1978. That provides in its familiar terms:
"In determining for the purposes of this Part whether the dismissal of an employee was fair or unfair, it shall be for the employer to show - (a) what was the reason (or, if there was more than one, the principal reason) for the dismissal, and (b) that it was a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held."
Turning to subsection (2), paragraph (b) provides as one reason that which:"related to the conduct of the employee" .It is plain that that paragraph is germane to this matter.By way of the extended reasons, the Tribunal dealt with this initial point as follows:
"Although the Respondent appeared to regard the Applicant's conduct in attending the meeting of 11 August 1994 as tantamount to disloyalty the Respondent failed to call evidence to show that such belief was genuinely held on reasonable grounds or evidence to support that such belief was the reason for dismissal. The decision to dismiss was taken at a committee meeting about which there was no evidence. Consequently the Tribunal concluded that the Respondent had failed to show that what was the reason for the Applicant's dismissal and concluded that the dismissal was unfair."
On behalf of Pier Cars, now the Appellants, Mr George makes two essential points. The first point that he makes is that by way of its terminology it is manifest that the Tribunal confused the test that is required pursuant to s.57(1) with that which is required by way of s.57(3). We can deal with that submission shortly. We have looked carefully at the terminology. We do no think there was any such confusion at all. His second point has caused us a little more concern and it is this: given the importance of what transpired at the committee meeting of 12 August, he draws attention to the inability of the Tribunal to set out any evidence as to what was the material course of events. He points to the fact that the parties were unrepresented and raises a concern as to whether the finding that there was no evidence was a perverse finding. His point can be put rhetorically: how can there be no evidence, given its importance and given the concern that the Tribunal should have had to elicit that evidence in the circumstances by itself questioning Messrs Skevington and Standen, who were there to represent his clients, the Appellants?That point having been raised, we then look first at a letter that has been provided to this Tribunal by the Chairman and it is dated 15 September 1995. So far as material, it reads as follows:
"At the Tribunal hearing the respondent called two witnesses and presented their case first (dismissal being admitted). Those witnesses were George William Skevington and Andrew Charles Standen. The respondent's witnesses were given a full opportunity to present their evidence and they were questioned by the Tribunal members."
How then, one asks rhetorically, did the Tribunal find itself without evidence as to what happened at the meeting? The answer would appear to be apparent from paragraph 10 of its extended reasons which provides the finding of fact:
"The Respondent's evidence was unsatisfactory, incomplete and on occasions contradictory."
For this Tribunal there would appear to be no reasonable prospect of reacting further to this submission made by Mr George in the absence of the Chairman's notes. Without such, we have no more to hand than that which the Chairman has said in his letter and some clear and uncomplimentary findings by the Tribunal as to the way in which the evidence was presented to it by the Respondents.Pausing there, there is plainly no material at all upon which we could find that the Tribunal was, in any way, perverse in not being able to reach a conclusion as to what happened at that committee meeting for want of evidence. We have considered whether we should bespeak the notes from the Chairman to see whether, through those notes, we can find any explanation for the lack of evidence and whether, through those notes, we can ensure that these unrepresented parties did have ample opportunity to provide evidence on what, plainly, was a key topic for the purposes of an adjudication under s.57(1). We do not think that at this stage it would be appropriate to take that further step, necessarily giving rise to delay and further expense. Plainly, if this matter was to be seriously developed, then it was up to the Appellants to obtain the Chairman's notes and to make the point on the basis of such, if feasible. It is agreed that this Tribunal itself is concerned to make sure that fair decisions are arrived at and if we really felt that those notes would have had a crucial impact upon us, then notwithstanding the inadequacy of the preparation prior to arriving here, we would have seriously considered adjourning to allow them to be obtained but we see no prospect of results emerging from those notes. In any event, even if we are wrong about that, when we come to the further point raised by this appeal, it is apparent that there is no answer to it available to the Appellants, even if Mr George's submission based on s.57(1) is well founded.This further matter that is weighing with us arises with respect to s.57(3). That reads:
"Where the employer has fulfilled the requirements of subsection (1), then, ... the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether [in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case.]"
The Industrial Tribunal understandably made an alternative finding, that is, alternative on the basis that a reason had been made out pursuant to s.57(1). What it then said, was as follows:
"Alternatively or additionally the Tribunal concluded that the Respondent;s failure to put to the Applicant the situation as understood by the Respondent and failure to seek the Applicant's views prior to taking any decision coupled with the failure to investigate the situation in particular as to whether any threat existed to the Respondent's business were not the actions of a reasonable employer. Accordingly the Tribunal concluded that the Respondent had not acted reasonably in treating the Respondent's belief as to the Applicant's disloyalty as sufficient reason for dismissing the Applicant."
Mr George has sought manfully to challenge that finding but, in our judgment, the task is plainly beyond him having regard to the merits of the matter. As was already apparent from the finding recorded by the Tribunal and repeated in this judgment, on that 13 August the views of Mr O'Donnell himself were never canvassed at all. In our judgment, the failure to ask Mr O'Donnell what his position was, meant that what was undertaken that day by the Appellants were not the actions of a reasonable employer. If ever there was a situation in which one would have expected the reasonable employer to put their position to Mr O'Donnell and ask for his views, for example, as to whether he was staying with them or going, that was the occasion. In the event on the finding, absolutely nothing was done. Dismissal was presented to him as a fait accompli.It seems to us that this finding made by the Tribunal in the alternative and based on s.57(3) is a finding that cannot now be challenged. Further, it is fatal to this appeal, even if there is any point at all with respect to the question of the finding of a reason for the purposes of s.57(1). Thus it is that it would be plainly otiose to undertake the delay and expense in trying to find whether there was anything in the Chairman's notes that served to throw some light upon the lack of evidence as to the committee meeting of 12 August.Mr George has taken two other short points. The first point is as to the calculation of the wages for the purposes of computing the award for compensation. This, in our judgment, is classically a question of fact. It is not a matter at all for this Tribunal. The facts were found by the Industrial Tribunal. That is the fact-finding Tribunal - we do not have a role in that at all.Finally, and forgive us if we suggest by way of make-weight, he suggests that the Industrial Tribunal, hearing of the somewhat unusual arrangements for paying Mr O'Donnell, should have directed itself that this was an illegal contract and should have allowed that to influence its decision in the matter. He has, with respect, failed to persuade this Tribunal that the contract, as described in the extended reasons, was illegal, albeit that plainly there was a potential for some illegality unless there was scrupulous accounting to the Inland Revenue. That point was never raised before the Industrial Tribunal, there are no facts found by the Industrial Tribunal that are relevant to it and it is certainly not a point that weighs in any way at all with this Tribunal.For all those reasons we are satisfied that this appeal should be dismissed.