MRS O A MORTON v SCHOOL PICTURES INTERNATIONAL LTD [2002] UKEAT 0179_01_1705

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0179_01_1705Case No Appeal No. EAT/0179/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS O A MORTONAPPELLANTSCHOOL PICTURES INTERNATIONAL LTDRESPONDENT
Before
His Honour Judge Peter Clark Mrs M T Prosser Mr J R RiversDate 17 May 2002
[1]APPEARANCES For the Appellant MR N RANDALL (of Counsel) Messrs Hopkins Solicitors Waverley House 37 West Gate Mansfield NG18 1SH For the Respondent MR R SEABROOK (of Counsel) Messrs Browne Jacobson Solicitors 44 Castle Gate Nottingham NG1 7BJ HIS HONOUR JUDGE PETER CLARK This is an appeal by Mrs Morton, the Applicant before an Employment Tribunal sitting at Nottingham chaired by Mr J Blackwell against that Tribunal's reserved decision, promulgated on 21 December 2000, dismissing her complaint of unfair dismissal brought against her former employer, the Respondent, School Pictures International Ltd.[2]The hearing before the Employment Tribunal occupied two days. Both sides were represented by experienced solicitors. Each solicitor prepared lengthy written closing submissions. The Tribunal went away and deliberated in private. They then promulgated their decision adverse to the Appellant.[3]On 29 January 2001 a Notice of Appeal was entered on behalf of the Appellant. It contained a number of grounds of appeal, prepared by her solicitor. The appeal was listed for Ex Parte Preliminary Hearing in the usual way. It came before a division presided over by His Honour Judge Altman on 21 June 2001. The Appellant was unrepresented. She came to London to plead her own case. On that occasion the matter was permitted to proceed to this Full Hearing for the reasons given in a judgment delivered on that day. We continue to use the old expression 'ex parte' rather than the modern term 'hearing without notice' because that better describes the procedure. Notice of hearing is given to the Respondent, who may attend to observe but not make representations on the principal question, ought the appeal to be allowed through to a Full Hearing on some and if so what grounds. If not, it will be dismissed. The Respondent's right to make representations is limited to the question of what direction the Employment Appeal Tribunal will make if the matter is allowed to proceed.[4]Looking at the judgment of the Employment Appeal Tribunal on that occasion it appears that that division considered that, on its face, the Employment Tribunal decision and reasons was unassailable as a matter of law, our jurisdiction being limited to correcting errors of law – Employment Tribunals Act 1996 Section 21(1) . Further, the Employment Appeal Tribunal do not appear to have been deflected from that view by any of the grounds of appeal contained in the Notice settled by the Appellant's solicitor. Instead they identified a single point on which the appeal was to proceed, not, it seems to us, directly raised in the Notice of Appeal. It was whether the Tribunal failed to address an issue that the Appellant's dismissal was contrived. Later, the issue was formulated at paragraph 10 of the judgment in this way:
"All other matters raised being issues of fact, we therefore permit the matter to go forward to a hearing on that argument alone namely that the issue that the dismissal was to a degree contrived and artificial was not an issue which was addressed in their reasons by the Employment Tribunal."
It is not entirely clear what is meant by that formulation. There is reference (judgment, paragraph 9) to the Appellant's case, raised in her Originating Application, that the Respondent's decision to dismiss her had been pre-determined. We shall return to that point in more detail later.[5]Having identified the point for Full Hearing with the Respondent present the Employment Appeal Tribunal expressed a little concern as to whether this issue of contrivance was raised before the Tribunal (judgment, paragraph 4). The Employment Appeal Tribunal further observed that, with hindsight, the Appellant believes she knows now much more about it (her dismissal) that she did then (judgment, paragraph 3).[6]Permission having been granted, a successful application was made by the Appellant's solicitor for public funding and a certificate was issued on 29 September 2001. Thus her solicitor returned to the fray and in due course instructed Mr Randall to conduct her appeal. From little acorns big oak trees grow, or in this case give way to generate a considerable volume of paper, including recently, a complete bundle of the documents before the Employment Tribunal which run into 105 pages, to which no separate reference has been made throughout this appeal hearing. At the Preliminary Hearing a direction was given that the Chairman be asked to provide his notes of evidence in a limited form dealing with any fact going to the issue of contrivance, artificiality, maliciousness and lack of substance from the Respondent's point of view in the reasons that they were putting forward or from the Applicant's point of view when her side had been cross-examined. Witness statement were also to be provided. It seems that the Chairman, in complying with that request, was not entirely confident that he fully understood that direction (his letter to the Registrar dated 30 July 2001). He attempted to deal with it by reference to two of the pleaded grounds of appeal. He then enclosed a fairly arbitrary selection from his notes of evidence and some witness statements. The Respondent filed an answer on 24 September 2001. In short, it was there said that such allegations as were made by the Appellant on contrivance/artificiality were expressly or impliedly rejected by the Tribunal.[7]On 28 March 2002 cross-applications were made to the Registrar. The Respondent thought it necessary to introduce their own notes of evidence, and asked that they be sent to the Chairman for his comments. The Appellant applied first, for new evidence to be admitted on the hearing of the appeal and secondly, for permission to amend the Notice of Appeal to add a further ground challenging the Employment Tribunal's alternative finding that if the Appellant had been unfairly dismissed, she contributed to her dismissal to the extent of one hundred percent. Those applications were opposed by the Respondent. There has since been further correspondence and a direction by the Registrar for the Appellant to file affidavit evidence, a direction which has been complied with.[8]We turn now to the Employment Tribunal's decision and reasons. First, the facts as found. The Appellant commenced her employment with the Respondent in May 1979. They were in the business of producing school portrait photographs. In 1996 she was appointed a supervisor of both the print and finishing rooms. In January 1998 she accepted demotion to operator grade. On 8 April 1998 she received a written warning relating to her hostile attitude to a member of staff. On 3 December 1999 a notice was posted on the staff notice board headed "Production Supervisory Opportunities". The Appellant read the notice, but thinking it did not apply to the print room, did not pursue the matter. On 12 April 2000 the Appellant learned that interviews were taking place. She made disparaging remarks about the three candidates and her immediate supervisor, Mr Rogers. She pursued Mr Rogers throughout the remainder of that shift, aggressively, so the Tribunal found. A suggestion that Mr Rogers was motivated by malice towards her was rejected by the Tribunal. They found evidence to that effect from the Appellant's witness, Ms Waby, unconvincing. They did hear from Mr Rogers.[9]The upshot was that disciplinary proceedings were taken against the Appellant arising out of 12 April events. She was issued with a final written warning, unlimited in time, on 27 April. The Tribunal found that such a warning was justified. On appeal to Mr Machin, the Operations Director, heard on 8 May, Mr Machin affirmed the final written warning, but limited it to two years duration. Meanwhile, having been off work, the Appellant returned on 27 April. On that day, as she admitted, she printed a run of photographs incorrectly, resulting in machine time and materials being wasted. In respect of that incident a further disciplinary hearing was held before Mr Machin on 13 May. He dismissed her on grounds of misconduct. Against that decision the Appellant appealed to the Managing Director, Mr Yardley. Following further investigation he upheld the decision to dismiss.[10]On these facts the Employment Tribunal concluded:(1) That the Respondent's reason for dismissal related to the Appellant's conduct.(2) That, taking into account the final warning, dismissal fell within the range of reasonable responses.(3) There was no procedural unfairness, particularly at the appeal stage, rejecting a specific complaint made on the Appellant's behalf by Mr Todd, her solicitor.(4) The Respondent carried out a reasonable investigation.(5) In these circumstances the dismissal was fair.(6) Even if the appeal rendered an otherwise fair dismissal unfair, the Appellant contributed to her dismissal to the extent of one hundred percent. Against that background we turn to the sole point in the appeal. Did the Tribunal deal with the issue of contrivance/artificiality insofar as it was put to them?[11]In her Originating Application the Appellant made this allegation:
"… two days after I had been notified of the outcome of that appeal [the final warning appeal] I was summoned to a further Disciplinary Hearing before the same person, Mr Machin. On the morning that the hearing was due to take place I heard the new Print Room Supervisor offer my job to David Brown. Mr Machin dismissed me for this one mistake on the grounds that I was already on a final warning. I appealed but my dismissal was upheld."
In her witness statement, at paragraph 24, she said this:
"During my last day before I went for my disciplinary hearing I heard the new Supervisor Darren Poismen ask Tony Dunham if he could ask Dave Brown if he was interest in my job. A short while later I heard Darren Poismen ask Dave Brown and his response was to say "
That he would think about it". This happened before I had gone to see Mr Machin for my disciplinary meeting regarding the incorrect printing of the school. At the end of my statement I would like to add that I believe I was dismissed solely to smooth the way for the new Supervisor…." So the point was raised. What happened to it?[12]In their Notice of Appearance the Respondent denied that the Appellant's job was offered to David Brown on the morning of the disciplinary hearing. Before the Employment Tribunal Mr Dunham gave evidence. He was asked, by way of a supplementary question in chief, whether he had had the conversation with Darren Poismen alleged by the Appellant. He denied it. He was not cross-examined on that answer, the Respondent's witnesses going first. In her evidence no further questions were asked of the Appellant on the topic. The point was running out of steam. Critically, we think, no point was taken in Mr Todd's closing submissions on this issue.[13]Pausing there, it is clear that an Employment Tribunal is required to rule on the issues raised before it. Peripheral question arise during evidence which may or may not be pursued to the bitter end. Or it may be decided, tactically, not to pursue the point. In our judgment the question of a contrived dismissal in this case fell into that category. It simply was not an issue by the end of the case. The Tribunal cannot, in our view, be criticised for making no reference to it, as opposed to the live issues with which they dealt fully, in their decision and reasons. They are not obliged to determine each and every issue which arises in the course of the case, only those which are necessary for their decision.[14]That disposes of the appeal, subject to one matter. Mr Randall applies to adduce fresh evidence on appeal. That evidence comes from a fellow employee of the Appellant, Ms Bett, who ceased her employment with the Respondent in June 2001. At the time of the Appellant's dismissal she was living with Darren Poismen. That relationship ended in January 2001. In May 2001, shortly before the Preliminary Hearing in this case, she met the Appellant. As a result of the conversation which they then had, the evidence which Ms Bett is able to give is at paragraph 2 of her witness statement, dated 20 March 2002, which reads as follows:
"On the day that Olivia Morton was dismissed, Darren Poismen told me that he had taken a docket and some work to the company's Technical Services Manager, Tony Dunham, on which Olivia Morton had made a slight error. It was the kind of mistake that happens several times a week in a busy environment like the company's print room. When Darren told me that Olivia would be sacked for this, I said that it did not seem a serious matter. He then told me that it was only a matter of time before they got her out for something. I asked him what he meant, and he told me that the management have for some time been looking for ways to "out"
Olivia and that the job in question and several others had been left as traps to catch her out. I asked what would have happened if someone else had picked up the work, he said that it would not matter, nobody else would have got into trouble."[15]It is common ground between counsel that it will only be in rare and exceptional instances that new evidence will be admitted on appeal. The reason is simple, it is the need for finality of litigation. The principles on which such evidence will be admitted put in place a high hurdle for the party seeking to have the new evidence admitted. It is the classic Ladd v Marshall test, adopted in this jurisdiction by Mr Justice Popplewell, then President, in Wileman v Minilec Engineering Ltd [1998] ICR 318. In Ladd v Marshall [1954] 1 WLR 1489 , 1491 Lord Justice Denning put the three-fold test in this way:
"To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled; first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence much be such as is presumably to be believed, or in other words, it must be apparently credible, though it need to be incontrovertible."
In relation to the second limb of that test, Mr

Justice Popplewell said in Wileman at 322D:

"…. not only that the new evidence must be relevant, but that it will probably have an important influence on the result of the case. The reason for that is that simply because it is relevant, unless it is also likely to affect the decision, a great deal of time will be taken up by sending cases back to an industrial tribunal for no purpose."
[16]It did appear, at the outset of this hearing, that the Respondent accepted that all three limbs of that test were made out in relation to Ms Bett's evidence. However, on mature reflection, Mr Seabrook finally sought permission to withdraw any such concession. Quite properly, Mr Randall took no point on that application, he being able to deal with the application on its merits, and we permitted Mr Seabrook to do so. In any event, it would be undesirable for our discretion to be limited in circumstances where the Respondent has always opposed the admission of the fresh evidence.[17]Turning then to Ms Bett's evidence, we accept that the first and third limbs of the Ladd v Marshall test are met; the issue turns on the second question; would her evidence probably have an important, although not necessarily decisive influence on the result of the case, that is the Tribunal's decision, as to whether or not the Appellant was unfairly dismissed. In a burst of Jubilee hyperbole, Mr Randall described Ms Bett's evidence as being 'the crown jewels' Regrettably we have concluded that if it is, it is a fake. It is correct to say that the new evidence may be unrelated to the evidence actually given before the Tribunal, however, at best, we think this second hand account of Mr Poismen's opinion as to the Respondent's management's motivation in dismissing the Appellant is just that, an opinion. The actual mistake in her work on 27 April was admitted by the Appellant. She did not allege, at any stage, that she had been trapped into making the error which she admitted. The question as to whether another employee would have been dismissed for the same error was ventilated at the internal appeal hearing and again before the Tribunal in both evidence and argument. The Tribunal's conclusion, in rejecting the Appellant's case on this point, is expressed at paragraph 9 of their reasons. Nor are we persuaded that, armed with Ms Bett's evidence, the Appellant's solicitor would have materially altered the way in which he conducted her case. It may have made a difference but not to the extent, in our judgment, as to eventually probably have an important influence on the outcome.[18]In these circumstance we reject the Appellant's application to admit the new evidence. It also follows, as Mr Randall accepts, that his application to amend the grounds of appeal to attack the Tribunal's alternative finding of one hundred percent contribution is rendered academic. For the reasons we have given the finding of unfair dismissal must stand. The appeal is dismissed.