Gambles & Anor v Sound Leisure Ltd [1998] UKEAT 75_97_2010

EAT
Gambles & Anor v Sound Leisure Ltd
[1998] UKEAT 75_97_2010 · 1998-10-20

JUDGE PETER CLARK :

We shall deal first with the appeal of Mr Gambles, represented before us today by Mr White.He was one of four employees dismissed by the respondent from their employment as assemblers of jukebox equipment at the respondent's Leeds factory on 20th June 1996. The other employees included Mr Walker, who also entered a Notice of Appeal against the decision of the Leeds Employment Tribunal dated 20th November 1996, and a Mr Halliday, an applicant before the Employment Tribunal, but not an appellant to this tribunal.The background to the dismissal, put shortly, is that on 18th June 1996 there was a problem with the water supply to the factory. That did not cause serious inconvenience to the production process on that day. On 19th June the water supply was again causing problems. During the course of the morning the four employees, including Mr Gambles and Mr Walker, were later dismissed by the respondent left the factory without clocking off and did not return to work that day. The managing director of the respondent, Mr Black learned of this and instructed the factory manager, Mr Lee to dismiss those four employees. Two other employees who had left the site after discussing the matter with their supervisor and clocking off were not later dismissed. Mr Lee saw the four men on 20th June, heard what they had to say about leaving the factory the previous day without permission from supervision and without clocking off, and then dismissed them in accordance with Mr Black's instructions.The Employment Tribunal in their extended reasons, found that the dismissals were unfair on the grounds that there had been no attempt to carry out a proper investigation, or to hold a proper hearing. However, the tribunal went on to hold that had the proper procedures been carried out the result, that is dismissal, would have been the same. Further, the tribunal found that the only reason why the men were disciplined was because of their own misconduct in leaving the site in breach of procedures by failing to notify supervision or to clock off. The tribunal found that they had contributed to their dismissals to the extent of 100% and applied that finding to both the compensatory and basic awards. Thus, there was a finding of unfair dismissal but with nil compensation.Before the Employment Tribunal all three applicants were represented by Ms McAra, an employment rights worker with the Leeds Citizens Advice Bureau who had apparently been drafted in to represent them before the tribunal at a late stage. The original Notices of Appeal lodged on behalf of both Mr Gambles and Mr Walker were settled by a Citizens Advice Bureau representative. The only point taken in the grounds of appeal in those notices was that the finding of 100% contribution was perverse.A preliminary hearing was arranged at this tribunal for 26th February 1997. Prior to that hearing Mr Gambles, acting in person, prepared a written submission in which he said this:
"Conflict between Mr Alan Simpson the Tribunal Chairman and the Employment Rights worker Garneth McAra (who was a late replacement) from the start of the hearing resulted in no cross-examination of respondent and therefore what they said was just accepted as the truth.
At one point Mr Simpson stopped the proceedings and took Mrs McAra out the room to rebuke her.Never having been in a court or law or a tribunal before I assumed in my naively that the truth would be more important than procedural points of law (see para 3 of the document Decision of the Tribunal)."Paragraph 3 of the tribunal's extended reasons reads as follows:
"3 These are the very brief facts upon which we make the finding today. It is fair to say that the applicants' representative sought to lead additional evidence but the tribunal excluded that evidence upon the basis that it had not been put in cross-examination of the respondent's witnesses."
At the preliminary hearing on 26th February, before a division of this tribunal presided over by Judge Pugsley, there was no appearance by or behalf of the appellants. That tribunal read the submissions of Mr Gambles and put the preliminary hearing back for the Chairman's comments on that submission. These were provided by a letter dated 18th March 1997 in which the Chairman commented on Mr Gambles' submissions and in addition enclosed copies of letters from his two lay members who sat with him at the original hearing.In his letter of 18th March the Chairman pointed out that at the outset he explained to the parties and their representatives the procedure which the tribunal would adopt. The respondent was to present its evidence first, as the dismissal was admitted, and the Chairman says that he described the giving of evidence, the purpose of cross-examination and what the applicants' representative should do in the course of cross-examination by way of challenging evidence in chief and putting the applicants' case. Four witnesses were called for the respondent, and contrary to Mr Gambles' assertion, each of those witnesses was cross-examined by his representative. The Chairman goes on:
"When the first of the applicants was called to give evidence, their representative began to ask questions on issues which had not been raised in cross-examination of the respondent's witnesses. I stopped her at this point and asked if she recalled what I had said regarding the purpose of cross-examination. She confirmed that she did. I asked her if she had been aware of the evidence which the applicant was now giving prior to the hearing. She said that she was. I then asked her why the evidence had not been put to the respondent's witnesses. She did not have any explanation. In view of this, I adjourned to enable me to discuss with the lay members the problem which had arisen."
Having adjourned and discussed the matter with his colleagues the tribunal came back and ruled that the applicants' representative would not be allowed to lead evidence on matters which had not been put in cross-examination to the respondent's witnesses.The appeal was then relisted before a division presided over by Judge Hargrove QC on 5th December 1997. Again there was no appearance by or on behalf of the appellants. The matter was allowed to proceed to a full hearing, although no order was made formally giving leave to the appellants to amend the Notice of Appeal to add as a ground of appeal that there had been a breach of natural justice in the tribunal's conduct of the proceedings in the way alleged by Mr Gambles in his written submission. As a result, the respondent only learned of this contention when the EAT bundle index was sent to them about three or four weeks ago. Nevertheless, we have satisfied ourselves that Mr O'Connor, on behalf of the respondent, has been able to deal with the point, so far as it goes. We have therefore treated the Notice of Appeal as amended to add the submission made by Mr Gambles in February 1997.The principal point taken by Mr White is that, given the inexperience of Ms McAra, the Employment Tribunal fell into error in refusing to allow the appellant to give further evidence on matters which had not been put in cross-examination by his representative to the respondent's witnesses. He has referred us to the divisional court case of Vickers v Hudson Bros. Mid. Ltd [1972] 5 ITR 259 , and the EAT decision in Aberdeen Steak House Group Plc v Ibrahim [1988] ICR 550 . We have considered both cases, and we note that whereas in the first case the appellant did not ask for a witness to be recalled; the appeal failed; in the second the appellant asked for a witness to be recalled the Employment Tribunal refused, and the appeal succeeded. In the present case there is no evidence before us that an application was made by Ms McAra to have the respondent's witnesses recalled so that she could put the matters to them which she had omitted to put first time around; secondly, there is no material before us, despite the age of this appeal, as to what relevant evidence, if any, Ms McAra sought to adduce from the applicants, and in particular Mr Gambles but was prevented from leading.It seems to us that the appellant here has failed to make out a breach of natural justice such to cause us to interfere with the Employment Tribunal decision on that ground, given the wide discretion granted to Industrial Tribunals to regulate their own procedure. In this case the Chairman explained the procedure; the matters ought to have been put in cross-examination; they were not; there is no evidence that Ms McAra applied for recall of the respondent's witnesses; her inexperience is not a ground, in our view, balancing the interests of both parties, for putting the respondent to the trouble and expense of a rehearing some two years later. In these circumstances we reject that ground of appeal.Secondly, Mr White submits that the finding of 100% contribution on the facts of this case is perverse. We are unable to uphold that submission. The tribunal found that it was the appellant's misconduct which was the sole cause of the dismissal. On that basis a finding of 100% contribution is a permissible option open to the Employment Tribunal. Devis v Atkins [1977] IRLR 315 . Whether or not we would have ourselves, sitting as an Employment Tribunal, have reduced the award to nil is nothing to the point.It follows that the appeal of Mr Gambles is dismissed. Mr Walker has not pursued his appeal in any way; however, since it raises no separate issues it must follow that that appeal is also dismissed.