MS DOREEN LESLEY SHARP v W G BALL LTD [2001] UKEAT 294_01_1309

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 294_01_1309

Case No Appeal No. EAT/294/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS DOREEN LESLEY SHARPAPPELLANT

W G BALL LTDRESPONDENT

Before

Mr Recorder Underhill

Date 13 September 2001

[1]APPEARANCES For the Appellant MR JOHN HORAN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR RECORDER UNDERHILL QC: This is the preliminary hearing of an appeal against the decision of an Employment Tribunal at Shrewsbury that the applicant was not unfairly dismissed.

[2]We propose to allow the appeal to proceed to a full hearing. We do so against the background, which has weighed with us, that the Tribunal's Extended Reasons do not seem to us clearly to set out the facts and the evidential issues in a way which makes it easy to assess the validity of the Tribunal's conclusions or the reasoning by which it reached those conclusions. That may indeed be a ground of appeal in itself: since we are going to direct that the Appellant has the opportunity to produce amended grounds of appeal that can be a matter for consideration by her or those advising her. But against that general background there are two particular points which Mr Horan, who has appeared for the Appellant under the ELAAS Scheme, has urged on us and which we accept are arguable.

[3]First , it is arguable that the Tribunal gives no, or no adequate, reason for holding that this was one of those exceptional cases where it was fair for the employer to dispense with a proper disciplinary hearing. However serious the incident which gave rise to the Appellant's dismissal, as to which we are in no position to express a view, it is clearly arguable that fairness required a formal and careful hearing when everyone had calmed down, at which any problems as to the facts could be gone into and any mitigating circumstances considered.

[4]Secondly , at point (K) in the Appellant's skeleton argument she says this:

"The Tribunal erred in law in that it disallowed a witness statement that was crucial to the Applicant's case. It stated that a similar occurrence i.e. the deletion of pornography by Mr Gallagher, had previously happened at The Potters Connection Ltd. The Applicant believes its inclusion would have had an impact on the final outcome of the case."

Again, we do not know, because this matter is not alluded to at all in the Reasons, precisely what application was made or how it was dealt with; but on what we have been told this morning it seems to us that it is arguable that if the Tribunal did indeed reject an application to adduce evidence of this kind it should not have done so.

[5]In addition to those two points made by Mr Horan (and this may lie behind some of the particular points made in the Notice of Appeal as at present drafted) we believe that the Tribunal's judgment that the Appellant's reaction was so disproportionate as to be capable of justifying dismissal deserves reconsideration at a full hearing. It is impossible at this hearing to form a concluded view as to whether, on the material before it, the Tribunal was entitled to make that judgment; but it is at least arguable that it was not.

[6]In the circumstances of this case we believe that justice cannot be done at the full hearing without the production of the Chairman's notes of evidence, and we so direct. We should also have any notes that the Chairman may have of the application which the Appellant tells us she made for the admission of a further witness statement and of its rejection (see paragraph 4 above); and if the Chairman has no note, or if he wishes to amplify his note in any way in this regard, it is important that we have his comments on the allegation that such an application was made and was rejected.

[7]Once the Chairman's notes and any such comments have been despatched to the parties, the Appellant should within 21 days serve on the Tribunal and on the Respondents a statement indicating whether there is any challenge to the contents of the notes, either as to their accuracy or their completeness, and as to the Chairman's comments on the witness statement point; and within 21 days of receipt of that statement the Respondents should make a statement in similar form, indicating also any disagreement with the Appellant's statement. The advantage of that procedure is that when the matter comes back for a full hearing it will be clear to the Appeal Tribunal the extent to which there is any remaining dispute as to what occurred below.

[8]We give the Appellant permission to amend the grounds of appeal. The present grounds of appeal are short but the Appellant's skeleton argument raises a number of factual points. If, as we hope, Mr Horan is still able to advise the Appellant it would be helpful to have somewhat fuller grounds than the original grounds, but something short of a full incorporation of every point in the skeleton argument. We are sure that with professional assistance the Appellant will find it easier to separate the wheat from the chaff. We would not have thought it would be a useful exercise for us to go through the skeleton argument now, deciding which point was admissible and which was not, particularly as several of them look unpromising at present because they are formulated as challenges to findings of fact but may in fact relate to the fundamental underlying question of whether the Tribunal was justified in holding the Appellant to have acted in a wholly disproportionate way.

[9]It would make more sense if that exercise were performed after the Chairman's notes had been obtained and the procedure indicated in paragraph 7 followed. We therefore direct that the revised Notice of Appeal be lodged within 21 days after the time for service of the Respondents' comments in accordance with the timetable we have previously indicated. Category C; time estimate three hours; skeleton arguments 14 days before the hearing.