Swinney & Anor v Burgess [1997] UKEAT 41_97_1604

EAT
Swinney & Anor v Burgess
[1997] UKEAT 41_97_1604 · 1997-04-16
MR JUSTICE LINDSAY: We have before us the appeal of Mrs A Swinney and Mr J D Swinney against the decision made by an Industrial Tribunal under the Chairmanship of Mr M A Rich. The decision was promulgated on 25 November 1996 following a hearing spread over two days, the 22 October and 18 November 1996.The position is that Mrs Swinney & Mr Swinney had been employed by the employer Respondent, Mr P Burgess, and the capacities in which they had been engaged were that Mr Swinney was a gardener/handyman and Mrs Swinney was the housekeeper. No salary as such was payable to Mr Swinney. He was simply provided with free accommodation; but Mrs Swinney was paid a wage. Both of their posts were part-time. It came about that they were dismissed from that domestic form of service and the matter was taken to the Industrial Tribunal.There was no complaint before the Industrial Tribunal other than for unfair dismissal and unpaid holiday pay. We mention that because it may be that Mr & Mrs Swinney have some other form of contractual claim outside that described range of unfair dismissal and unpaid holiday pay. That other claim was not properly before the Industrial Tribunal and is still open, if it has ever been open, to be taken further.The decision of the Industrial Tribunal was that both Applicants were unfairly dismissed, so to that extent Mr & Mrs Swinney had a victory, but the sting in the tail was that neither Applicant was entitled to a basic award nor a compensatory award. Mr Swinney's claim for holiday pay failed and Mrs Swinney's claim for holiday pay succeeded, to the extent of £405.The nature of the unfairness of the dismissal was itself a matter which came close to splitting the Tribunal. What the Chairman in the full reasons says is this; he is referring to an incident earlier on 19 February 1996 at which time Mr Swinney, whose job included looking after security for the house at which they were working, told Mr Burgess, on giving him a note, said 'Read this carefully' "I shall no longer be responsible for the security of the house" and then left the room. What the Chairman says is this:
"13. ... Both my colleagues take the view that, in those circumstances, it behove a reasonable employer to give at least an opportunity for the employee to give some explanation for what Mr Wallington [the employer's Counsel] described as his 'somewhat dramatic conduct.' Though I have reservations, and wonder whether this is the counsel of perfection, I do not think that I can disagree with the lay members on an aspect which is peculiarly within their province. Therefore, we conclude that on that one narrow issue, the dismissal of Mr Swinney was unfair. As Mrs Swinney was not given the opportunity of saying anything, we conclude, for the same reasons, that her dismissal is unfair."
The nature of the unfairness thus lay in the failure of the employer fully to allow explanation of an incident which Counsel had described, and presumably, as it would seem from the reasons, which the Tribunal accepted, as having been a curious incident, "somewhat dramatic conduct". Having decided that the dismissal was unfair in that way, the Tribunal went on:
"14. We then went on to consider what would have happened. In this respect, the picture worsens from the Swinneys' point of view. It would have been clear to Mr Burgess that he had been misled at the original interview as to Mrs Swinney's health, that he had been misled by Mr Swinney on the 10 February, by the latter deliberately failing to inform him that Mrs Swinney was seriously ill in hospital and that there was neither rhyme nor reason for Mr Swinney's behaviour at the meeting. Inevitably, in our view the result would have been the same - the Swinneys would have been dismissed, and those dismissals would have been fair. We cannot award any compensation."
15. As to the basic award, the actions of both the Swinneys in being far from honest with their employer in the type of post where integrity trust and confidence are absolutely vital, is conduct before the dismissal within sec 122(2) Employment Rights Act 1996, which fully justifies us in reducing the basic award to nil."So there it was. It was by that route that the Tribunal, having decided that the dismissal was unfair, nonetheless awarded no basic award nor any compensatory award. It is against that that Mr & Mrs Swinney appeal.It has to be said that both before us and below Mr & Mrs Swinney appeared in person. They claim, rightly, that they have no experience of or in the law. That plainly puts them at a disadvantage, perhaps even more of a disadvantage on appeal, where only points of law are considered, than it might be at first instance. They have to find some mistake of law in the Extended Reasons, and we have heard them at considerable length. There are difficulties in their way. At a great number of points in their Extended Reasons the Tribunal comes to conclusions of fact, based, as it would seem, on the evidence against Mr & Mrs Swinney. Just quoting, not at random but not purporting to cover every example, in paragraph 4 the Tribunal says:
"(c) ...we unhesitatingly prefer the evidence of Mr Burgess. (i) ... We further find, on a balance of probability... (k) ... we are far from persuaded that Mrs Burgess' requirements were excessive. (l) ... We accept the evidence of Mr Burgess and Mr Waters. [That is on a point against the Swinneys.] (n) ... As much of Mr Swinney's evidence was liberally sprinkled with inaccuracies and exaggerations, we do not accept his version. ...
(p1) Though Mr Swinney denies it, it seems inevitable that [then there is a finding]

(p2) ...This is patently not so [with reference to Mr Swinney's evidence]

(s) ... we much prefer the evidence of Mr Burgess. (x) ... We are quite satisfied..." [then they come to a conclusion against Mr & Mrs Swinney].Obviously such findings put difficulties in the way of any argument sought to be based on fact in the Swinneys' favour. We have heard Mr & Mrs Swinney at some length. They plainly have a burning sense of grievance and a sense that the process below was an unjust process. We do not ordinarily enquire into facts and, even if we did, it could be we would have to conclude that the findings of the Tribunal in the Burgess's favour were truly justifiable findings which the Tribunal came to, having heard the evidence, having carefully weighed the issues and having thus arrived at a conclusion against the Swinneys. Alternatively, a possibility (but no more than that) could be that the repeated findings in the Burgess's favour could emerge as being perverse. In effect, the case could prove to be that the Tribunal leaned far too far in the favour of Mr Burgess and that the conclusions that I have read represent not a fair assessment but so prejudiced an assessment of the evidence as to have been perverse. We have heard detailed allegations of that kind at some length and that the matter was treated below as if a joke; that the Chairman was treating the Burgess side, including Mr Burgess' Counsel, on a very friendly basis, whereas he was hostile to the Swinneys. The matter was treated at some stages almost as a joke by the Chairman; so we are told.These are serious allegations and they do, when coupled with the burning sense of injustice with which we have been addressed in relation to them, lead to considerable unease on our part. For all that, some point of law has to be found. The only possible point of law that can be found is technical perversity (within which I could here include improper conduct of the proceedings). On that we do not have any material which can lead us to a decision as to whether the findings in the Burgess's favour were justified by the evidence heard, or whether they represent too much inclination on the part of the Tribunal to accept the Burgess side and to reject the Swinney side. Nor do we have material as to the conduct of the proceedings. We do not wish to hold out any hope to Mr & Mrs Swinney that they will succeed at a full hearing but we do respect the fierce sense of injustice which they have disclosed to us. Although we have not found the matter easy, we think it right, if only to dissipate that sense of injustice, that the matter should go to a full hearing on the ground of perversity, that to include misconduct of the proceedingsIf it is the case that at the full hearing Mr & Mrs Swinney, or either of them, wish to develop the sort of case that they have developed in front of us, that there was bias on the part of the Chairman or the Tribunal as a whole, we remind them that the proper way to do that is to have an Affidavit on the subject so that the matter can clearly be brought into contention and seen for exactly what it is. It would behove them to seek to obtain legal representation at the full hearing. We are told that Mr Swinney has an RAF pension and it might well be that that precludes them from Legal Aid, but there are other channels open to those seeking legal advice in the EAT and they are to be commended to Mr & Mrs Swinney. Also what will be necessary at the full hearing will be the Chairman's Notes of Evidence and we give whatever direction is necessary to be sure that those are available at the full hearing.We have seen the matter to be one of difficulty. There is a powerful argument that what the Industrial Tribunal's reasons represent is nothing perverse but is a fair assessment of the evidence. That is very much the province of the Industrial Tribunal, a province in which the EAT is not able to go. We emphasise that at the full hearing, which we do permit, Mr & Mrs Swinney will have to develop a point of law and only on points of law can they succeed and that is why we commend them in particular to do their best to get legal representation. However, at this stage we say no more than that, on balance, we see it as right that the matter should go to a full hearing with the Chairman's Notes produced in the manner that we have indicated. If an Affidavit as to bias at, or misconduct in, the proceedings below does emerge, it will be proper that the Chairman shall be asked to comment upon it.