Hughes v London Underground Ltd [1997] UKEAT 228_97_1510

EAT
Hughes v London Underground Ltd
[1997] UKEAT 228_97_1510 · 1997-10-15
MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing has been to determine whether Mr Hughes has demonstrated any arguable point of law in an appeal which he wishes to make against an Industrial Tribunal's decision which was sent to the parties on 6th January 1997, following at hearing at London (North) on 19th December 1996.The unanimous decision of the Industrial Tribunal was that Mr Hughes was entitled to be paid a basic award following his unfair dismissal by his former employers, London Underground Ltd, but that in the circumstances, he was not entitled to any compensation.There is a background to this case which may be shortly stated.On 7th August 1995, Mr Hughes' complaint of unfair dismissal against his former employers, came before an Industrial Tribunal presided over by Mr Threfell. The unanimous decision of that tribunal was that Mr Hughes was not unfairly dismissed. The reason for his dismissal was a number absences which he had allegedly had over a period of two years. The Industrial Tribunal came to the conclusion, having heard all the evidence, that the decision to dismiss was one which a reasonable employer could have taken given the circumstances of the case. The question of remedy, therefore, did not arise.Mr Hughes appealed against that decision, and the appeal came before a division of this court on 11th July 1996. Prior to the appeal coming on for hearing, London Underground Ltd made various concessions in a document which the Employment Appeal Tribunal referred to in full. The effect of those concessions was that in relation to two items of absence the documents had over-recorded his sickness absence in respect of the period from 4th September 1994 to 11th September 1994. London Underground now accepted that that absence had been recorded in error as he was not absent during that period. In relation to the period from 7th May to 25th May 1993, this was recorded in error as he was only absent from 7th May to 18th May. In other words, seven days had been over-recorded which meant that he was absent for a total period of 34 days and not 41. It was accepted by London Underground that as a result of the employers taking into account absences which were not true absences at all, they had acted unfairly and therefore the dismissal was unfair. London Underground also accepted, for the avoidance of doubt, that they would not seek to argue any contributory conduct on the part of Mr Hughes at the remedies hearing, but they did, however, reserve their right to advance any other arguments with regard to the issues of quantum and/or reinstatement or re-engagement.On the basis of that concession, the Employment Appeal Tribunal were prepared to allow the appeal. It was their view, reflected by their order, that the question of the calculation of compensation should be referred to a differently constituted tribunal. During the course of their judgment, as we understand it, the Employment Appeal Tribunal indicated or intended to indicate, that London Underground might wish to argue at the subsequent hearing what is called the ' Polkey ' point, namely, that if the employers had known the true facts, they nonetheless would have arrived at the same conclusion in any event, and that therefore, Mr Hughes was not entitled to compensation.In the course of their judgment, the Employment Appeal Tribunal indicated that the estimation, as they put it:
"... of the facts may involve a discussion with the Appellant. The Appellant, indeed, and we just mention this, may be well advised to put himself into a position, by a report from his general practitioner or by any other information that the Respondents themselves may seek from him, to reassure the Respondents that he, having been described in one of the meetings as having the right attitude when at work, is somebody upon whom they can rely for consistency of attendance in future."
What happened, as we understand the position from Mr Hughes today, is that he was elated by the victory which he thought he had achieved as a result of him providing to London Underground for the purpose of the appeal hearing substantial documentation showing that he had been absent less often than he had been recorded as being absent. Feeling elated, he had gone to the Industrial Tribunal on 19th December 1996, in the belief that he would dealing with the question of compensation. On the occasion when they had been to the Industrial Tribunal in the first instance, and at the appeal, it was his experience that London Underground about a fortnight before the hearing exchanged documentation with him so that he became aware in good time before the hearing what was going to happen. He has told us today that that did not happen in relation to the hearing on 19th December. Accordingly, when the employers sought to go back into the question as to what periods of absence he had had, Mr Hughes was unable to deal with it because the documentation which he had previously made available to London Underground, he had not brought with him to the hearing. In those circumstances, the Industrial Tribunal had to consider the factual material which was presented to them. It is certainly the case that all their findings which are set out in their extended reasons in a decision sent to the parties on 6th January 1997, can be supported by the evidence which was adduced before them on behalf of London Underground. Mr Hughes took a limited part only, it would appear, in the proceedings on that occasion for the reasons that I have indicated.However, after that decision had been sent to him and within the requisite time period, Mr Hughes applied to the Industrial Tribunal for a review. As we understand it, having regard to his letter of 6th February 1997 which post-dated the review, he had pointed out to the Industrial Tribunal that had London Underground told him in advance what they were to produce at the hearing, he would have been able to counteract that with the documents which he had shown to the Employment Appeal Tribunal. Accordingly, in effect, as an unrepresented litigant, he was saying to the Industrial Tribunal, as we understand it, that they should review the decision on the grounds that he had been taken by surprise. He had misunderstood the nature of the proceedings. He had not had any exchange of information in advance with London Underground, and was simply unprepared to deal with the case as it was being presented by London Underground. Whether or not that was a reasonable position, having regard to the terms of the Employment Appeal Tribunal judgment is something about which we will have to pass judgment in due time.But as we see it, it is arguable for the purposes of a preliminary hearing that the Industrial Tribunal erred in the exercise of their discretion to refuse to grant him a review of their decision, having regard to Mr Hughes' state of mind and the other factors to which I have referred. That review decision is contained in a decision dated 29th January 1997, which was sent to the parties on 31st January 1997. The application for the review was refused because, in the judgment of the Industrial Tribunal Chairman, the interests of justice did not require it. They say this:
"In his request for review Mr Hughes expands upon the arguments he put forward at the hearing. At that hearing he was given every opportunity to state his case and adduce evidence and arguments in support. He chose not to do to any significant extent. It would not be fair to the Respondents or in the interests of justice for him to be given any further opportunity to re-argue his case, or have it re-heard."
If in fact the reason why Mr Hughes did not participate in the hearing to any great extent was because he was taken by surprise as to the issues which were to be heard and determined on that occasion, then it may be arguable that the Industrial Tribunal Chairman has erred in law in the exercise of his discretion.Accordingly, it seems to us that that is a point which should be argued at a full hearing before a division of the Employment Appeal Tribunal. We have arrived at that position as a result of spending a little time hearing Mr Hughes' submissions on the points of law as he believed them to be. He said that it was a point of law that London Underground had failed to call a Mr Slevin who would have been in a position, in his judgment, to have confirmed the facts as Mr Hughes believed them to be.It seems to us that there is no point of law in the proposition which Mr Hughes is advancing. Mr Slevin, we understand, may not have been fit for work. Whether he was called or not was a decision for London Underground; and whether the tribunal was going to be assisted by his evidence was a matter for the Industrial Tribunal to determine. It seems to us that that argument does not constitute a point of law.Nor does Mr Hughes' plea ad misere cordiam that he only received a £1,000 odd following an unfair dismissal by way of basic award amounts an arguable point of law, if that is the correct legal conclusion to have arrived at, then the fact he feels a sense of grievance cannot constitute a point of law.He also makes a number of detailed points on the findings of fact made by the Industrial Tribunal and says that he is in a position to prove that they are wrong. But he frankly accepts that much of what he would like to say, he did not say to the Industrial Tribunal on 19th December for the reasons which I have referred in the course of this judgment.Accordingly, I would make it quite clear that the only arguable point of law in this case is the tribunal's decision not to review their decision on 19th December 1996. If it transpires that the tribunal ought to have reviewed the decision, then the Employment Appeal Tribunal will say so, otherwise the appeal would have to be dismissed.We give Mr Hughes no encouragement one way or the other as to how that point will be determined. It is a point on which we think the assistance of London Underground would be of help to the Court and we keep an open mind before arriving at any conclusion on it.In those circumstances, on that ground only, will the appeal go ahead for a full hearing. We would like to make the following directions in relation to this hearing. In the first place we do not require the Notes of Evidence. That is not what this appeal is about. In the second place, this appeal should be heard by the same panel as is sitting today, we have discussed this between ourselves. It seems to us that we have acquired a significant amount of knowledge about the facts which it would be a waste of resources to require a new tribunal to acquire. Accordingly it will be before the same members of this tribunal d.v .. It will be listed for hearing in the normal way. The respondents will be required to put in an answer which deals and deals only with the point identified in this judgment. The appellant has leave to amend the Notice of Appeal and we will take his Notice of Appeal as having been amended to include within in it this point. Accordingly there will be no surprise to London Underground Ltd when they come to appear before us as they will have a copy of this judgment available to them.