Arora v Noon Products Plc [1997] UKEAT 1440_96_0904

EAT
Arora v Noon Products Plc
[1997] UKEAT 1440_96_0904 · 1997-04-09
MR JUSTICE LINDSAY : We have before us, by way of a preliminary hearing, the appeal of Mrs S K Arora, an erstwhile employee of the respondent to the appeal, Noon Products Plc, a company which operates in the food industry. Mrs Arora wishes that this should go to a full hearing of her appeal against a decision of the Industrial Tribunal promulgated on 1st November 1996. It was held by that tribunal, under the Chairmanship of Mr Adamson, that the applicant, Mrs Arora, was unfairly dismissed but that she had contributed to her own dismissal. It was that element of contribution to her own dismissal that greatly reduced the potential for recovery; there was no money award because it was thought the parties might be able to reach agreement on the money aspect of things.A very significant feature of the case was that the tribunal considered at paragraph 4 that Mrs Arora took it, from the events that had happened, that she had been dismissed on 6th January. There was in fact an initial meeting or hearing on 12th January which the tribunal felt was not part of the respondent's disciplinary process. The respondents then convened a meeting for 19th January intending that that was to be a formal disciplinary hearing, but Mrs Arora did not attend, and the reason why she did not attend, as found by the tribunal, was that she considered that she had already been dismissed. The tribunal went on to say that if she had attended on 19th January there might have been a greater input into the respondent's investigation into the matter. The tribunal said this:
"We consider that having regard to the Respondent's resources it was in a position where it should have given such notice in writing."
That is to say a notice in writing of there being a disciplinary hearing on 19th January, on the footing that Mrs Arora had not by then been dismissed, but that her dismissal was still under consideration. The tribunal went on:

"This may have resulted in a different outcome. We assess that chance at 10%."

It is that finding that leads to the reduction of award to Mrs Arora by 90%. They later say:
"... we would reduce any compensatory award by 90% to reflect the chance that had a fair dismissal procedure been carried out by the Respondent the result might have been different."
The case advanced by Mr Gill before us today is that there was important evidence before the tribunal on behalf of the employer given by a Mr S Rao, who was the respondent's executive chef. Unfortunately we have not seen that evidence because, inexplicably as it seems to us, there has not earlier been an application for Notes of Evidence. However, it is said, and we rely on this (and it is an important matter that we do rely upon it) that Mr Rao's evidence was that the appellant, Mrs Arora could simply have been transferred to another shift away from Mr Chawla, whose instruction it was that she had earlier disobeyed, rather than face disciplinary action.We see it as properly arguable as a point of law that the reduction from 100% to 10% in the manner I have indicated might not have given any or sufficient weight to the evidence of Mr Rao, and to the possibility that had only Mrs Arora been told that she was still not dismissed and had only she been therefore present at the hearing on 19th January, she might have taken the point. It would have been open for her to take and not a complicated point to take, namely that it was unnecessary that she be dismissed, that it would suffice instead that she be transferred out of Mr Chawla's ambit and into another shift. Had she taken that point and had the employer consulted Mr Rao, then, given the nature of his later evidence as we are told it was, it is at least possible that she would not have been dismissed at all, or at any rate, that the tribunal's assessment of the likelihood of a different conclusion other than dismissal being as low as 10% would hardly be appropriate.We do think therefore that this matter does give rise to an arguable point of law properly to be taken to a full hearing. We see it as essential that at that full hearing the Chairman's Notes of Evidence be available. It will not suffice, in our view, that merely the evidence of Mr Rao be the subject of the notes because it could be that there was evidence from other people that countered that of Mr Rao or explained away his evidence. It does seem to us important that the full hearing has the full Notes of Evidence, subject to any point that Mr Gill has. The point is also properly made that in the ordinary way a list of the witnesses and a list of documents before the Industrial Tribunal would form part of the case as presented to the Employment Appeal Tribunal; at the moment it does not. That, too, needs supplementing. We allow that matter to go forward on that basis.