Howie v Office Cleaning Services [1998] UKEAT 1138_97_2010

EAT

Howie v Office Cleaning Services

[1998] UKEAT 1138_97_2010 · 1998-10-20

JUDGE JOHN BYRT QC:

The decision of this Tribunal is that this witness statement should not be admitted into evidence. For it to be admitted, the three principles set out in Wilman v Minnelec Engineering Limited and a host of other authorities have to be satisfied; the new evidence could not have been obtained with reasonable diligence for use at the original hearing; the evidence would probably have an important influence on the result and the evidence must be apparently credible. We take the view that if the applicant before the Employment Tribunal was able to put in evidence Mr Garner's letter of 20 March, equally so he could have secured a witness statement from him. We do not consider it would be right that he should be allowed to have two bites of the cherry. The rules which apply in this Tribunal relating to new evidence have to be strictly applied and we do not think that this witness statement satisfies those principles.

This is an appeal from the decision promulgated on 11 June 1997 of an Employment Tribunal sitting in Stratford and by their decision they held that the employee, a Mr Howie had been fairly dismissed and that he had made no written requests for reasons for his dismissal. Mr Howie now appeals that decision.

The facts as found by the Tribunal are as follows; the respondents OCS had had for something like 20 years a contract with the firm called Sedgewicks, cleaning what was known as the Sedgewick Centre at Whitechapel.

In 1996 OCS were required to re-tender for that job. At the time they did so, they had a senior regional manager Mr Carne who had an overview of this particular site. Reporting to him there was a site manager, named Mr Kostalas and a site supervisor who was Mr Howie. There has been a little difficulty about terminology. Mr Howie is referred to as a site supervisor. In fact he had six full time staff and 20 part time staff reporting to him. So clearly he had some managerial responsibility.

In the March or April 1996, OCS was successful in re-tendering, but it was made plain to them by Sedgewick the client, that if they were to get the contract renewed they had to agree to the condition that their current management team would be replaced. The finding of the Tribunal is specific about this. In paragraph 6(2) they say:

"In March/April 1996 Sedgewicks indicated to OCS that they had successfully tendered for the cleaning contract but the agreement could not be signed unless OCS met further specifications. Mr Jeff Payne, Sedgewicks' building services manager, told Mr Dring the OCS operations director (from whom we heard evidence), that the current management structure was unacceptable. It was too lethargic and Mr Howie was not acceptable as part of the management team."

OCS responded. What happened was that Mr Carne was moved elsewhere, and Mr Kostalas resigned. Now he was the site manager, and accordingly on a temporary basis, from some time early in the summer of 1996, Mr Howie was promoted to the position of acting manager in place of Mr Kostalas. That being so, the position of site supervisor became vacant. A cleaner was promoted in order to take that position. At the time Mr Howie understood that that arrangement was to be on a temporary basis only.

What then happened was that on 29 August Mr Howie received a letter from his employers stating that he was not going to go back to Sedgewick. He was thereafter offered a variety of alternative jobs which he turned down, and as a result on 4 October, he was dismissed.

Before the Employment Tribunal the employers case had been that the reason for Mr Howie's dismissal was in the first instance redundancy or alternatively some other substantial reason within the meaning of section 98(1)(b) of the Employment Rights Act 1996 . The Employment Tribunal had no difficulty in dismissing the submission that the reason for his dismissal had been redundancy, but accepted the submission of the employers that Mr Howie had been dismissed for some other substantial reason.

(i) (c) they say this:

"(i) This was not a redundancy situation because: (a) The client company did not stipulate a reduction in the workforce nor indeed was a reduction necessary to obtain the contract by tender. (b) Prior to the signature of the cleaning contract, the client company stipulated they required a new management team and that did not include Mr Howie - this could have included a replacement. (c) To retain the contract (worth £200,000 per annum) OCS were obliged to offer a non-management role to Mr Howie at reduced pay, or in the alternative, to provide him with a job of equal or superior status within their organisation."

Quite plainly they took the view that Mr Howie had been dismissed for some other substantial reason namely, the requirements of Sedgewicks, the client. In making his submissions before us today, Mr Ford has confirmed that that was the situation.

Mr Howie's case before the Employment Tribunal was this. Essentially it was based upon a letter dated 20 March 1997 written by Mr Garner one day before the hearing of the Employment Tribunal. Mr Garner was Sedgewicks' general services director, and in that letter he stated quite specifically that Mr Howie's departure had not been influenced by his company. He said they were happy for him to be part of the team and in effect it was nonsense Sedgewicks ever made it a term for accepting the Respondents' tender, that Mr Howie together with the rest of management should leave. He was saying they understood Mr Howie would be retained as the site supervisor and that they were happy he should remain there.

Now that letter constitutes a fundamental challenge to the employers case, and one would have expected the representative of Mr Howie would have pursued this matter in cross-examination of Mr Dring, the operations manager of the Respondents. Certainly play would have been made in submissions as to the effect of this letter from Mr Garner. But the surprising aspect of the matter is that the Tribunal, in giving their reasons, nowhere refer to the existence of this letter from Mr Garner, nor do they refer to the issue between Mr Howie and his employers of which this letter is evidence. The Employment Tribunal is not expected or required to set out all the facts which arise from the evidence they hear, but they are expected to give sufficient reasons to justify their conclusions and to list the facts to support those reasons.

In this particular instance, we take the view that the Employment Tribunal's failure to refer to this letter or indeed to this part of Mr Howie's case, indicates either that they just did not take it into account at all before coming to their decision or alternatively if they did, they have failed to give sufficiency of reasons to justify the conclusions they came to. Either way we take the view that this constitutes an error of law. It is one which this Tribunal is unable to put right by substituting a finding of its own and accordingly, we consider the proper course is to remit this matter back to a freshly constituted Tribunal to rehear this matter. We allow this appeal.