MR P E WARDLE v BOWES OF NORFOLK LTD [2001] UKEAT 860_01_2711

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 860_01_2711Case No Appeal No. EAT/860/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P E WARDLEAPPELLANTBOWES OF NORFOLK LTDRESPONDENT
Before
His Honour Judge D M LevyDate 27 November 2001
[1]APPEARANCES For the Appellant Mr K Curl (Representative) K C Consultancy 49 Falklands Road Boyton Hall Haverhill Suffolk CB9 OEA JUDGE D M LEVY QC On the 10 and 11 May 2001, an Employment Tribunal sitting at Norwich heard a complaint by Mr P E Wardle, ("the Appellant") that he had been unfairly dismissed by the Respondent, Bowes of Norfolk Ltd. At the end of the hearing the unanimous Decision of the Tribunal was that the Appellant was not unfairly dismissed by the Respondent and the application was dismissed.[2]The Decision was sent to the parties on 12 June 2001. Mr Curl, who appeared for the Appellant below, and appears before us now on the ex parte hearing of his appeal, applied for a review, which was refused. There has been no appeal against the review decision.[3]The Notice of Appeal, dated 13 July, essentially takes two points: it says, first, that the Tribunal's Decision was perverse and did not reflect the evidence placed before it, and secondly, that the Tribunal demonstrated bias in favour of the Respondent in accepting Mrs Letton's statement which appeared in section 10 paragraph 35, for which no evidence whatsoever in support was presented to the Tribunal.[4]There is an affidavit by Mr Curl, the consultant who appeared below, and not by the Appellant, setting out the concerns of bias which have been commented on by the Chairman in a document dated 17 August 2001, and one paragraph in the affidavit was wrongly labelled. Mr Curl has appeared before us today and has made submissions on the basis of the grounds of appeal.[5]The kernel of his submission on perversity is that there is no evidence before the Tribunal which could have led to the findings which it made. We observe from the letter which he has put before us in this bundle this morning is that at the end of the disciplinary hearing, Mrs Margaret Letton, who gave evidence, wrote to the Appellant and the first numbered paragraph of her letter says this:
"Having considered all the evidence submitted by yourself and the staff, I feel the allegations that 'you have run the Retail Department, or allowed the Department to run in an atmosphere of fear and intimidation' have been proved and that you are guilty of gross misconduct."
[6]When they came to look at the conduct which they had heard about, the Tribunal in Extended Reasons at the top of page 14 of our bundle, page 8 of the Decision said this :
"We considered whether the acts and omissions on the part of the applicant could be said to constitute gross misconduct."
We have carefully listened to all that Mr Curl has said to us and read the Extended Reasons carefully. We are satisfied that the Tribunal looked, as they had to do, into the matters which they had to look in the Burchell case, referred to in paragraph 13 of their Decision, and they came to a decision which may have been hard on the Appellant, but was not perverse.[7]We are satisfied, having looked at the findings made that the Tribunal was entitled to come to the conclusion that there were grounds for the dismissal of the Appellant; they were entitled, as they did, to say that other employers might have come to a different decision, but it was within the bounds of what this employer could have done to have dismissed on the evidence which was before them, including the evidence which had been given to a disciplinary hearing, and an appeal against its decision.[8]We have also considered Mr Curl's submissions that there was bias on the part of the Tribunal. This hearing took a full two days. It is often necessary for a Tribunal to control its own hearings in the way in which even an experienced advocate can find irritating. But we do not find anything which comes near to bias in the matters about which Mr Curl makes complaint about the hearing in this matter.[9]He drew our attention to a paragraph in the Chairman's affidavit in relation to a paragraph in a letter which he had written. That was a sentence in paragraph 5 of his affidavit:
"I recall saying to the Chairman "
If you Sir and your colleagues have fully read all the 27 statements and have rationalised their contents, then I will indeed ask no further questions of Julie Alison since their objectives will already have been achieved." " Of that the Chairman said:
"My comment is that at the time during the hearing I let the remark go without intervening as it did not seem to me to make a lot of sense. I am still of the same opinion as I was then."
We can understand the Chairman's reaction. Mr Curl has complained that another person in something of the same position of the Appellant had brought a case against an Employment Tribunal which had settled. We cannot see how this affects either the hearing or the Decision.[10]In all our opinions this appeal has no chance of success if it goes to a full hearing. In the circumstances we dismiss it at this stage.