BLP UK LIMITED v MR D MARSH [2001] UKEAT 0187_01_1206

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0187_01_1206Case No Appeal No. EAT/0187/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
BLP UK LIMITEDAPPELLANTMR D MARSHRESPONDENT
Before
His Honour Judge J Altman Mr A E R Manners Mr H SinghDate 12 June 2001
[1]APPEARANCES For the Appellant MR MALCOLM COHEN (Director of Appellant Company) BLP UK Limited BLP House Sandallstones Road Kirk Sandall Doncaster DN3 1QR JUDGE ALTMAN This is an appeal from the decision of the Employment Tribunal sitting at Sheffield on 13 December. It comes before us by way of preliminary hearing to determine if there is a point of law capable of argument in full before the Employment Appeal Tribunal.[2]Dr Cohen who has appeared for the Appellants, effectively in person, has raised four grounds of appeal. The fourth is one that is raised by way of amendment to the original Notice of Appeal and he seeks leave to amend the Notice of Appeal to include that and we give such leave.[3]The first ground of appeal is that the Employment Tribunal, having refused to adjourn the hearing to facilitate the attendance of the witness Dr Cohen, thereafter erred in law when they made a finding in their decision about his conduct of the employee's appeal hearing, in the face of his being put forward as an important witness and the Tribunal having itself effectively shut itself out from hearing his evidence in full, either orally or under cross-examination.[4]It is said that having refused the adjournment it was wholly inappropriate for the Tribunal to then make key adverse findings of fact in respect of Dr Cohen's evidence. The conclusion was set out in paragraph 6(u) of the Tribunal's decision and in reaching their decision, the Employment Tribunal had before it the notes of the appeal hearing and Dr Cohen's witness statement and they said that they relied, in reaching their decision, on the evidence of the contemporaneous notes of the appeal hearing.[5]They point to the fact that this was a review and not a re-hearing. They point to the fact that, whilst the appeal seems to have taken account of a final written warning, that was for a conduct, not a performance of work, matter.[6]The Employment Tribunal point to the fact that there was no reference in the notes of the appeal hearing to any consideration of general matters of procedure in cases where capability is being raised. We would observe such consideration is quite commonplace; that is matters such as an opportunity to improve, targets, review dates, and a failure to perform thereafter. Also there was no reference made to alternative employment. That was a reiteration of matters that, no doubt, could properly be inferred from a reading of the notes of the appeal hearing.[7]Dr Cohen then complains of this finding:
"The Tribunal took the view that in coming to his conclusions, Mr Cohen, the appeals office(r), had compounded the errors which Mr Kelly had made in dealing procedurally with this matter."
Whilst we are not sure what the Tribunal meant by the use of the word 'compounded', whether it was simply that the errors of the original hearing remained in tact, or whether they had been augmented. We have looked at the way in which the Employment Tribunal analysed the application for an adjournment. The application was put forward on the basis that Dr Cohen was the appeals officer and it was about the appeal he was to give evidence and the Tribunal refused the application because of the age of the proceedings, because there had been nearly 3 month's notice of the date of the hearing and because, whilst Dr Cohen was not going to be available to give evidence in chief, or for cross examination, the Tribunal had his contemporary his notes and his statement.[8]It is frequently the practice of Employment Tribunals to take a witness statement as the evidence in chief of a witness. Accordingly, essentially what is being complained of is that the effect of the refusal of the adjournment was that Dr Cohen was not available for cross-examination. It seems to us in the light of that, bearing in mind the substantial material that, even with his absence, the Tribunal had to work on, and bearing in mind that they were drawing inferences which, it seems to us on everything that we have heard, they were entitled to draw from the notes of the appeal itself, that there was no error of law in the Tribunal's doing what it could on the evidence before it, having refused the adjournment. The Tribunal has the discretion to deal with its procedures as appropriate, which Dr Cohen acknowledges, and it seems to us that thereafter they had material upon which they were entitled to come to the conclusion they did. The whole point of refusing an adjournment, with the result that a witness cannot come to give his or her evidence, is that the Tribunal then proceeds to do the best it can on the material before it. If the refusal of an adjournment was then to tie the hands of a Tribunal and prevent it considering anything about which that witness may have dealt if he had come before the Tribunal, then of course it would turn the whole exercise of discretion on its head. Tribunals have to do the best they can; they are not expected to produce perfection in the receipt of evidence and we can see no arguable ground of appeal on that first ground and no arguable error of law. Of course, these may be cases where the absence of a witness, who is so important means there cannot be a fair hearing, but this is clearly not one of those cases.[9]We now turn to ground three; that the Tribunal erred in law in making findings of fact which no Employment Tribunal, properly directing itself, could make. We will return in due course to the allegation of bias against the Chairman in ground 2.[10]The fact is that there was a great deal of evidence produced by the Appellants, which was contradicted by Mr Marsh the Respondent, does not mean to say that the Tribunal were wrong to adopt one piece of evidence in preference to the other.[11]The grounds of appeal contend that the Tribunal first of all, in paragraph 8(i) of its decision, were perverse in finding that the catalyst and main reason for the Respondent's dismissal was a complaint of 12 October 1999. It is said that this finding was contrary both to the evidence of Mr Kelly for the Appellants that the customer complaint was the catalyst for the investigation of performance, but not the primary reason for dismissal, which was due to performance as a whole, and to the notes of the appeal hearing.[12]In paragraph 8(i) the Employment Tribunal identify the main reason for dismissal as being the customer complaint, and that the earlier matters which had come to the fore during the course of the review by the Appellants of the way in which the stock was being handled and the Respondent was performing, were supportive of his performance being unsatisfactory. The Employment Tribunal found that the Appellants gave no evidence to suggest that they placed any great reliance on those matters or that those matters had thrown out any significant problems. It is suggested that that is inconsistent with 6(m) of the decision, relating to a meeting between Mr Kelly and the Respondent. There the Tribunal found that there was discussion about the Respondent's role in general and matters of individual performance and they rejected the Respondent's contention that the latter had not been discussed. They refer to discussions about the taking forward of the Respondent's area of business, the lack of confidence that Mr Kelly expressed. However, they found that no reference was made to the requirement to take steps to improve and that there had been a request by the Respondent for help with administration.[13]The Employment Tribunal then in paragraph (n) went on to find that the Respondent did not provide his list of goals quickly enough but did shortly thereafter, and that the Appellants were not satisfied with those goals and that Mr Kelly never sat down with the Respondent to explain what his requirements were. No targets for improvement were set and no review dates were set. The matter was to all intents and purposes left open. That seems to us entirely consistent with the analysis of the Employment Tribunal in paragraph 8(1) and a conclusion therefore which they were entitled to reach.[14]It may be that, following discussions between Mr Kelly and the Applicant, the Applicant was left with a recollection that was accurate of more general discussions than appeared in any later report that Mr Kelly himself made of the meeting. There was a conflict of evidence which the Tribunal resolved in favour of the Respondent; they were entitled to do so and it is not arguable that that was perverse.[15]Then reference is made to paragraph 8(iv):
"There was no evidence, the Employment Tribunal found, that the Appellants had given any consideration as to whether, given a full and proper appraisal on his performance, guidance as to their requirements and targets for improvement and review, the (Respondent's) performance would have improved to the extent that he would have remained in employment."
[16]It is said that that was contrary to the evidence of Mr Kelly at paragraph 20 of his witness statement, that Mr Kelly formed the opinion that the Respondent was not capable of performing in the function. But that, it seems to us, is exactly the point the Employment Tribunal were making. There may have been a general impression on the part of Mr Kelly, but the Employment Tribunal are saying there was no evidence that the sort of regular and careful analysis that they refer to in 8(iv) was accomplished.[17]So, first of all, it seems to us that that is not inconsistent with the evidence of Mr Kelly, but even if it is, it is consistent with that evidence of Mr Marsh that the Employment Tribunal impliedly preferred. Accordingly, on the ground of appeal in relation to perverse findings of fact, which relates solely to those two paragraphs, we find that there is no arguable appeal in law.[18]We turn now to the new ground 4, set out in paragraphs numbered5.1 and5.2 of the document "Additional Ground of Appeal", that in assessing compensation the Employment Tribunal gave no reasons for rejecting either the argument that there should be a Polkey deduction, or the argument that there should be a deduction for contributory fault.[19]We are told by Dr Cohen that the solicitor representing the Appellants at the main hearing, Mr Crawford, has told him that he made reference to both a Polkey deduction and contributory fault. It is mandatory that a Tribunal must give reasons for its decision and it seems to us that, it is arguable that this can be said to apply to the assessment of compensation and the rejection, if it was a rejection, of either a Polkey deduction or contribution and we have in mind the old Portsea Island Mutual Co-operative Society Ltd v Leyland [1978] ICR 1195 case.[20]Accordingly, we permit this matter to proceed to a full hearing on that issue. Having made that decision, we now return to ground 2 of the appeal, that the Tribunal gave an appearance of bias and prejudice. It is not alleged that the Tribunal were in fact either of those things. It is alleged that an appearance of close-mindedness was given. Essentially what is said is that, whilst it is accepted that some Chairmen are perhaps more robust and pressing in their conduct of hearings than others, in this case these Appellants consider that there was a contrast between the way in which the Chairman dealt with them and the way in which she dealt with the Respondent.[21]For the purpose of dealing with this, affidavits have been prepared by two of the people present, on behalf of the Appellants and a response has been received from the Chairman and from the two lay members. However, we have also been presented today with a schedule analysing the comments and the grounds of the allegations made, under this head of the grounds of appeal and it is right, it seems to us, that whilst we have received that analysis (a very detailed analysis) from the Appellant, the Chairman has had no opportunity to give her response to that analysis and, whilst the Chairman has already written a response to the original complaints, she has not dealt with all the detailed allegations that are now made, although many of them really go to the same general proposition that the Chairman did deal with in general terms.[22]Accordingly, as this matter is in any event going to a full hearing on the issue of compensation, it seems to us only right that the final decision on the preliminary hearing as to ground 2 should be deferred to request the Chairman to give such answer, as she feels able, to the specific matters of complaint, detailed in the original letter and indeed in the schedule, and this should be furnished to the Chairman to give that opportunity.[23]Finally, in relation to this aspect, it seems to us notable on the material before us, that if there were these very serious concerns being experienced by the Appellants, that on the face of it nothing seems to have been said at the time by the representative of the Appellants, Mr Crawford, nor is there any account before us from him of his own impression of the hearing.[24]We are mindful of the fact that strangers to Tribunals often feel at a disadvantage, which is not an objective basis for criticism of the Chairman, and we are also mindful of the fact that in this case we are told that the Appellants are not total strangers to the Tribunals.[25]So, in relation to those two matters, the solicitor not saying anything at the time and this Tribunal not having any information from him, we consider that having flagged up that point, the Appellants now have the opportunity in the intervening period, should they be so advised, to obtain comments from the solicitor on those two aspects. If they do, it must be done in sufficient time for those comments to be transmitted to the Chairman so that she can have an opportunity of referring to those before the final hearing.[26]We wish to emphasise that we are not at this stage, because of the absence of this information, saying that we think there is an arguable point of law on the allegation of apparent bias, but we defer the preliminary hearing on that issue to be dealt with at the same time as the hearing of the main appeal. We have no doubt that the Employment Appeal Tribunal, should it be minded to find that there is an arguable point of law on that issue, will then at the same time be in a position to go on to consider it in full. In so far as these will be, at the final hearing, also part of a preliminary hearing as well, it will be, of course, for the Appeal Tribunal then sitting to decide the extent to which, if at all, the Respondents should participate in that part of the preliminary hearing.[27]Accordingly, the matter will proceed in that way. It will be listed for 1 day in Category C, skeleton arguments must be furnished not less than 14 days before the hearing, on the adjourned preliminary hearing, in relation to the perception of bias, and on the full hearing in relation to contribution and the Polkey deduction.