Macey v Velocity 128 Ltd [1998] UKEAT 750_97_2003

EAT

Macey v Velocity 128 Ltd

[1998] UKEAT 750_97_2003 · 1998-03-20

JUDGE BUTTER QC :

This is an appeal by Mr Macey, in respect of a decision of an Industrial Tribunal held at Bristol, as far back as 20 May 1994. There are reasons why there have been delays and it is unnecessary for me to review those in the course of this judgment.

The Chairman of the Industrial Tribunal sat alone. It is not plain to us why that was so, but be that as it may, his decision was that the Applicant was dismissed, but that the Applicant had contributed by his conduct to his dismissal and that it was not just and equitable that he should be awarded any compensation.

The Applicant was, at the material time, a Finance Director and it is unnecessary for me to go through the relevant facts, except to draw attention to the letter that was written on 29 October 1993, which is referred to in paragraph 2 of the extended reasons given by the Chairman.

On 11 October 1993 the Applicant was suspended and on 29 October he was dismissed. The dismissal letter states:

"The reason for your dismissal was your failure to properly perform your duties as Finance Director of the Company, in particular in relation to the major discrepancies between the management accounts and financial accounts, the failure to disclose this to the Board since you had become aware of the problem and general failings in the performance of your duties."

On 25 January 1994 the Applicant presented an application to the Industrial Tribunal alleging unfair dismissal and on 4 February, before a Notice of Appearance was entered, an administrative receiver was appointed for the Respondent Company. The Secretary of State indicated that he did not wish to intervene.

The Chairman, in the extended reasons, referred to the relevant sections of the Employment Protection (Consolidation) Act 1978 and stated that, as the Respondents had not entered an appearance, they could not show a reason for the dismissal and it seemed to him that the dismissal was automatically unfair. He then went on, however, to consider Sections 73 and 74 in relation to the question of conduct and said:

"Those subsections do not expressly provide for any onus of proof and it seems to me, [and I underline the following words] particularly in a case such as this where public money is potentially involved, there is a duty on this Tribunal to consider as best it can those subsections based on the information provided by the applicant, his answers to questions and his admissions."

In paragraph 6 the Chairman expressed himself in this way:

"It is common ground, as I understand it, that the applicant put forward management accounts showing stock figures which were significantly at variance with the true stock figures. I think, bearing in mind that public money is involved in this case, [and again I underline those words] that it would not be just and equitable that the applicant should be awarded compensation simply because, due to the administrative receivership of the respondent company, nobody from the respondent company has come to seek to justify the decision which was reached. The conclusion that I have come to, therefore, based on the applicant's own evidence, is that it is not just and equitable that any compensation should be awarded either under the basic award or under the compensatory award."

The references to public money are puzzling. In the course of the argument and discussion here today, various interpretations have been placed upon that, but we consider that the references were, on any view, unfortunate and would appear to indicate that the Chairman did, or probably did, take into account matters which were not, in truth, relevant to the issues which he had to determine.

On behalf of the Appellant today other points are also raised, namely that the Applicant did not have the chance of giving an explanation because he was not asked to do so in respect of the stock figures, a matter referred to in paragraph 5 of the award. Unhappily, it has not been possible to obtain the notes of evidence. It is therefore impossible for this Tribunal today to determine precisely what evidence was given and what opportunity the Appellant had of stating his case.

It is urged on behalf of the Appellant that, because of the matters to which I have referred, the appeal should be allowed and that this Tribunal today should simply direct that there be payment of the basic award.

We do not feel able to go along that route. We do propose to allow the appeal for the reasons which I have explained, but we do not feel able to substitute our own view. It is perfectly possible that, on a hearing before a differently constituted Tribunal, that Tribunal might decide that the Applicant is entitled to the full award; they might decide he is entitled to part of it; they might decided he is not entitled to it. It is not practicable for us to reach a judicial decision in relation to that matter.

In all the circumstances though with obvious regret, which the Employment Appeal Tribunal normally does feel when having to remit a matter, particularly as in the present case where many years have gone by, the Tribunal is unanimous in its view that the appeal should be allowed and the matter remitted to a differently constituted Tribunal to determine the matters in question. We express the wish that the Industrial Tribunal will consist of three members as is usual.