Akhtar v Linpac GPG International [1998] UKEAT 172_97_2906

EAT
Akhtar v Linpac GPG International
[1998] UKEAT 172_97_2906 · 1998-06-29

JUDGE J HULL QC :

This is an appeal to us by Mr Mohammed Akhtar who was employed by the Respondents, Linpac Dunstable as they are now known, they were Linpac GPG International, as a machine operator and material handler. He was first employed as long ago as February 1974 and, apart from a final written warning which he was given in May 1995, we have not heard anything adverse to him. But on 5 March there arose an incident which led to his dismissal.It was an incident involving another man with a knife, a third man who joined in to try and separate the two, who were arguing and, as a result of this fracas on the Respondents' premises, somebody was cut. There was an inquiry and the decision was that Mr Akhtar should be dismissed. That was on 13 March 1996.Five days later he signed his IT1, his Application to an Industrial Tribunal, complaining of unfair dismissal and seeking reinstatement. He was not content, after taking advice no doubt, with the grounds which he had put in his IT1 and on 22 July he amended it to add to the claim for unfair dismissal a claim for wrongful dismissal. A claim for unfair dismissal is made under the statutory provisions relating to employment. A claim for wrongful dismissal is a claim for breach of contract. He had been summarily dismissed and would no doubt say, on that claim for wrongful dismissal, that he was contractually entitled to receive proper notice.The Respondent Employers put in their answer, saying that the dismissal had not been unfair and then, on 18 October, they amended their answer to say, in addition, that there had been no wrongful dismissal.The case came before the Industrial Tribunal sitting at Bedford under the Chairmanship of Mr Willans with two Industrial Members on 18 November 1996. That Industrial Tribunal found, by their Extended Reasons, that Mr Akhtar had not been unfairly dismissed. So far as appears from their Extended Reasons they had reached no decision on the claim in respect of wrongful dismissal whatever. Mr Akhtar put in a Notice of Appeal complaining of that matter and on 6 June 1997 we gave leave for the appeal to proceed on the basis, as appeared to us, that the Industrial Tribunal had not addressed its mind to the question of wrongful dismissal at all.It appears that we were, in that, mistaken. Mr Galbraith-Marten who appeared before us there, had not appeared below and, of course, one would not expect him to know more about the case than is contained in the Extended Reasons, or to refer to anything but those. But we now have the benefit of an affidavit which has been sworn by Mr Munro who appeared for the Respondents before the Industrial Tribunal and he says, and there is no doubt about this, he says that what happened was that when the Tribunal returned, having considered the case, the Chairman gave a brief unanimous decision and, says Mr Munro:
"I definitely recall that he made no mention of the breach of contract claim. I said to him words to the effect of 'what about the breach of contract claim?' The gist of his answer was 'well, he's lost the unfair dismissal claim, so he has lost that as well.'"
That, it seems to us, is about as obvious a non sequitur or error of logic as one could possibly imagine. It does not follow that because an unfair dismissal claim is lost that the claim for wrongful dismissal fails, nor does the converse apply.If one looks at the record of the original decision, the Industrial Tribunal said:
"8. The Tribunal having listened to the evidence and considered the representations made by the parties were unanimously of the view that whether or not the Applicant was provoked or threatened was not something that they were in a position to form a view about and in any event it was not for the Tribunal to substitute their view, even if they had one, for that of the employer."
They go on to mention the correct test for unfair dismissal.But those were matters on which they did have to make up their minds (and they said they were unable to) in considering the wrongful dismissal claim. So there has been a mishap and no doubt, as was suggested to us, it may be that the Tribunal, being fairly new to its jurisdiction to decide contract claims, had simply overlooked parts of its important duty in that respect.It having been our order that the appeal should proceed there was agreement between the parties; first of all that the appeal should be allowed and secondly that the form in which it was allowed was that the matter should be remitted to a Tribunal for hearing the claim for wrongful dismissal, it being agreed between the parties (it seems to us quite rightly) that that was not a matter on which this Employment Appeal Tribunal, being simply concerned with law, could possible adjudicate.The difference between the parties is this: the Respondents say this matter should be returned to the same Tribunal and, furthermore, we should order that that Tribunal will be confined in its considerations to such evidence as it has already heard and such documents as are already before it at the hearing.It seems to us that the submission that it should go back to the same Tribunal is quite unrealistic. Here is a Tribunal which has roundly declared that it is incapable of arriving at any result with regard to the wrongful dismissal claim and it is proposed that we should direct it to reach such a result without any further material before it, when that Tribunal has said: "we can not."It seems to us that such a course would be wholly unreasonable. Moreover, as we have said, it is quite clear that this Tribunal was guilty of an error of law; first of all in saying, apparently, that they were unable to make up their minds about a matter which was before them. Secondly in saying that that matter followed automatically from their decision where they were able to make up their minds. It would be incumbent on us, no doubt, if we were to remit it to them, to tell that Tribunal in some detail where they had gone wrong and how they were to proceed. It seems to us that that would be embarrassing to us and embarrassing to the Tribunal. We are not concerned to tell Tribunals how to do their job but merely to give effect to legitimate appeals where it is claimed that a Tribunal has made an error of law, as this one undoubtedly did.But it is really piling one thing on another, one absurdity on another, to say that we must tell that Tribunal what evidence they must receive and what documents they must look at. We have asked whether there is any precedent for such an order; we have not been told of any precedent. The whole idea of a Tribunal's hearing is that they should conduct such inquiries and receive such evidence as they think right. The duty of arriving at a decision is upon them. It is not our responsibility to say how they should do their duty, it is theirs and if it is alleged they have made a mistake of law then they will hear about it, if there is an appeal.In a sense it appears that the point which is taken may be a false point because we are told that the Tribunal did in fact have the evidence of a number of witnesses who may possibly be called at the hearing. In the bundle before them were the witness statements of those witnesses. It may or may not be that the Tribunal thought it right to receive that written evidence, not relying (and they are told they must not) on the rules of evidence, they may have decided to look at that and receive it. We do not know.It seems to us, therefore, that it would be embarrassing and, indeed, absurd in the circumstances, to call on this same Industrial Tribunal to carry out the duty which they have first said they could not, and then misconstrued. The case ought to be remitted to a Tribunal differently constituted.With regard to the suggestion that we should limit their inquiries by insisting that no new evidence should be called: in support of that ingenious and novel submission Ms Mulcahy has referred to a quite different line of authorities, it seems to us. It is well established that we apply the same rule as the Court of Appeal if people come before us saying: "we have got fresh evidence and ask you to look at that fresh evidence", and to allow the appeal on that basis. We will not look at matters which were not laid in front of the Industrial Tribunal unless it can be shown, first of all, that this is evidence which could not, with reasonable efforts, have been made available in the first place to the Industrial Tribunal. Secondly, that it is of high probative value and that we ought to look at it for that reason.That is an approach which is reinforced in our case (as opposed to the Court of Appeal's case) by the fact that we are confined by Parliament to considering points of law, not questions of fact. That being established, of course it follows logically and is again established by authority that, if we are told that there is fresh evidence and that is the ground of appeal and we think that that evidence should be received, we should then remit it to a Tribunal to receive that evidence; because then we are asking the Tribunal to do what we ourselves must not do, which is to receive fresh evidence to show that the original decision of the Tribunal was wrong.But that is not the basis of this appeal at all. The basis is that the Tribunal has failed to do its duty in an important respect and failed to reach a finding. In those circumstances we remit it to a fresh Tribunal who have not been guilty of any such mistake and ask them to make a finding on that part of the case, that is to say, the wrongful dismissal part of the case. It is an absolute non sequitur to add that that Tribunal must confine its attention to those materials which were before the first Tribunal and on which that first Tribunal said they could not make up their minds.We do not propose to tell this second Tribunal how to go about their task, what evidence they may receive, what documents they may look at or what submissions of law they may give effect to. That is entirely for them. They are to carry out their duty untrammelled by anything that has gone before. Of course, as has been said, it may be that a submission will be made to the Tribunal that, for some reason or other, a particular piece of evidence or a particular witness's evidence is not admissible. If so, the Tribunal will have to consider that submission. It may or may not be that attempts will be made to call before them witnesses who were not called before the first Tribunal. We would not dream of telling the advocate, if there is an advocate, or Mr Akhtar, if he appears in person, what evidence he should adduce in furtherance of his case. Still less will we tell the Tribunal what they are to make of that evidence and whether they are to receive it. It is a matter which is their responsibility and not ours.So we say, with great respect to Ms Mulcahy, well and forcefully as she has argued her case, we think that the submissions she has made to us are based on a misapprehension and the only order we propose to make is that the matter be remitted to a differently constituted Tribunal and we make no further order than that. That Tribunal is to hear and determine that part of the case which has not been heard and determined, namely, the wrongful dismissal complaint made by Mr Akhtar.