MR D L ROACH v APCOA PARKING (UK) LTD [2001] UKEAT 719_00_0803

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 719_00_0803Case No Appeal No. EAT/719/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D L ROACHAPPELLANTAPCOA PARKING (UK) LTDRESPONDENT
Before
Mr Justice LindsayDate 8 March 2001
[1]APPEARANCES For the Appellant MR JOHN FALKENSTEIN (Of Counsel) Instructed by Messrs Stuart Cohen Mae Solicitors 207 City Road Cardiff CF24 3JD For the Respondent MR ANTHONY FERRIS Manager MR JUSTICE LINDSAY (PRESIDENT) We have before us, by way of a full hearing or what was intended to be a full hearing, the Appeal of Mr D L Roach in the matter Roach v Apcoa Parking (UK) Ltd. This morning Mr Falkenstein has appeared for Mr Roach and Mr Anthony Ferris, the Manager of Apcoa, has attended to represent Apcoa.[2]On 11 November 1999 there was an IT1 from Mr Roach claiming unfair dismissal. That was met with an IT3 of 2 December and that went ahead to a hearing on 15 February 2000 at the Employment Tribunal at Cardiff under the chairmanship of Dr Rachel Davies. Dr Davies was sitting with 2 members, Mr P Harris and Mr A T Blunt.[3]On 21 February summary reasons were sent to the parties. They were summary; only about a third of a page long. On 3 May 2000 Extended Reasons were sent. The unanimous decision of the Tribunal was that unfair constructive dismissal was not established. On 9 June the Appeal Tribunal received a Notice of Appeal. On 25 October 2000 there was a Preliminary Hearing at the Employment Appeal Tribunal and the Tribunal ruled that the whole of the Notice of Appeal should go forward to a full hearing as disclosing errors of law and the Order made that day included this provision:
"THE TRIBUNAL DIRECTS that the learned Chairman do be asked to provide his Notes of Evidence"
[4]By 2 letters the Employment Appeal Tribunal made a request for the Chairman's notes. On 17 January 2000 the Employment Tribunal, by the Regional Secretary, wrote back a letter that began:
"Thank you for your letters of 13 December 2000 and 11 January 2001. These have been referred to the Chairman and I have been directed to reply as follows: We regret that we have been unable to find the missing file and so cannot provide full notes of evidence as requested. I apologise for the delay in responding to your letter of 13 December, but the Chairman has been absent due to sickness and was not available to recall any details of the case."
And it continued: "She is now back at work" and then the letter goes on to give recollections of the Chairman. The word "recollection" and "recall" are frequently used in the rest of the letter.[5]Quite how the Tribunal below was able to supply the original witness statement of Mr Anthony Ferris and Mr Roach and yet in the circumstance of the file having been said to be lost is left unexplained and how those could be found yet without notes of evidence being found is, again, something of a mystery. But we were invited to proceed on the basis that the one and a half pages of the letter of 17 January 2000, including recollections of memories second hand from the Regional Secretary on behalf of the Chairman, were, in effect, a Chairman's note, although manifestly they are nothing like Chairman's notes of evidence. So, what is one to do when Chairman's notes are requested and yet none come forward?[6]This is not going to be an easy task because it is not a case in which both sides below were represented by Solicitors or Counsel or even Representatives. Mr Roach, it seems, was in person only. Apcoa did have a Representative but perhaps not either a solicitor or barrister. For all that, it seems to us that the evidence given below is going to play a significant role in the determination of the full hearing and we are not content to go forward on the basis of the letter of 17 January.[7]An effort must be made by the parties on both sides to compose their best possible recollection in an objective manner of the evidence that they have actually given. It is going to be difficult. Both sides need to be aware that in composing a note they owe a duty to the Tribunal to come up with an objective recollection of what was actually said and done. It is not to be taken to be an opportunity to include factors simply because they are in one's favour or to exclude other factors because they are against one. It is an objective exercise in which the principal duties are owed to the Tribunal or Court rather than to any party.[8]We will need to explore with Mr Falkenstein and Mr Ferris an appropriate time table for the first stage, which will involve those who were present below doing the best they can to arrive at an agreed note. Once that has been done the next stage will be to send it to the Chairman and to the lay members of the Tribunal. It does not follow from the fact that the Chairman has no notes or that the Chairman's notes cannot be found that the lay members notes do not exist or cannot be found. And so, once the parties have, within prescribed time table, done the best they can to assemble their version, the matter should then be sent to the Employment Tribunal for comment by the Chairman but also for the supply to the lay members to get the benefit of their recollection as well.[9]It is difficult to prescribe further but obviously the Chairman and lay members will have the opportunity of adding to or substracting from what the parties reckon to be their best recollection and the matter can then be restored to the parties who will then be able to comment and add or oppose the addition of such changes as the lay members and the Chairman have suggested. The object of the exercise, plainly, is that when the matter is restored for a full hearing the best objective account, composed from the memories of all those who were there either as parties or as Tribunal itself, should be available at the full hearing.[10]When the matter does come back it seems to us appropriate that the panel of the Employment Appeal Tribunal who hear the full hearing should not see the letter of 17 January 2001 because it may be that the agreed note which by then will have emerged will differ from it and to the extent that it does it should be the agreed note that overtakes the letter of 17 January so that there might need to be a marking in the Employment Appeal Tribunal papers to be sure that when the agreed note exists (assuming that one eventually does) the letter of 17 January should be excluded. But, subject to that, the matter is to be restored to a full hearing after a time table, which we will now discuss with Mr Falkenstein and Mr Ferris and in the hope that by then something that truly approaches an objective record of the evidence given will have been made.