MR S SIDDALL v MR B G LAVERS [2002] UKEAT 0644_01_2202

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 0644_01_2202

Case No Appeal No. EAT/0644/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR S SIDDALLAPPELLANT

MR B G LAVERSRESPONDENT

Before

His Honour Judge Wilkie

Date 22 February 2002

[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT HIS HONOUR JUDGE WILKIE QC This is an appeal by Mr Siddall against a decision of the Employment Tribunal sitting at Liverpool on 13 December 2000 which upheld complaints by Mr Lavers that Mr Siddall had made an unauthorised deduction from wages leading to a direction to pay £700, that Mr Siddall breached Mr Lavers' contract by failing to give notice of dismissal; failing to pay for holiday accrued and untaken; recovering the Applicant's company vehicle before the expiry of the notice and failing to reimburse him for expenses incurred in the course of his employment. In respect of those matters Mr Lavers was awarded damages in the total sum of £569.50. The Tribunal's decision is contained in Summary Reasons in eight paragraphs following a hearing at which Mr Siddall and Mr Lavers attended and represented themselves.

[2]Mr Siddall has submitted a Notice of Appeal against this decision, the thrust of which was that the Tribunal got the decision completely wrong, that the Applicant misled the Tribunal, but most significantly, he complains that the procedure adopted by the Tribunal effectively precluded him from in any way effectively presenting his case. This particular ground of appeal is contained in what is called a case overview, it reads as follows:

"During the proceedings the applicant was given the opportunity to give full evidence under oath after which the opportunity for cross examination was given to myself. In accordance with guidance notes I assumed I would then have the opportunity to give full evidence under oath. Other than the chairman asking some basic questions to obviously confirm his overview of the situation, I was not given the opportunity to present a reasonable argument to the claims under oath nor present documentary evidence in support of that argument. We were asked to leave the room at which point I assumed I would have my opportunity for response, however on our return the chairman gave his decision and closed the proceedings. The proceedings were generally rushed through as our case was determined a 'floating case' and commenced some 2 hours late with the general feeling of being rushed through due to the lateness of the hour. I feel the Tribunal did not receive a full and truthful overview of the whole preferring instead to reach a decision based on the applicants submissions only and therefore constitutes a breach of Article 6 of The Human Rights Act (the right to a fair public hearing) and as such request that the case be re-heard accordingly."

[3]This matter came before the Employment Appeal Tribunal on 29 June 2001. That being a Preliminary Hearing. The Order of the Employment Appeal Tribunal on that occasion was to adjourn the appeal. It ordered that the Summary Reasons should stand as sufficient for the purpose of the appeal and further ordered the Appellant to lodge an affidavit deposing to the truth of what he said under the heading 'Case Overview' in his Notice of Appeal. It also directed that the Chairman's comments be requested on that affidavit once received. It then ordered that the appeal be re-listed for further Preliminary Hearing when the Chairman's comments had been received.

[4]Pursuant to that Order, the Appellant, Mr Siddall, has submitted an affidavit which confirms that the facts stated in the case overview were true. The Chairman of the Tribunal has responded to that and has indicated that he is not in a position to make any comment because firstly, the file had been lost at the Tribunal office and secondly, he says this:

"My (dim) recollection of this case is that there was a review and furthermore that I was asked for extended reasons but was unable to give them because my notes were not on file. If I am identifying the right case, I certainly recall that the file was in existence then. What has happened to it since I cannot say. I now cannot remember anything about this case at all. I am not sure that the file would have assisted me on that, given that my notes had already disappeared, but in any event, I regret that there is nothing I can do to assist."

The affidavit containing the confirmation of the allegations in the case overview was apparently sent to Mr Lavers, the Respondent to the appeal, and on 8 February he sent to the Employment Appeal Tribunal office an affidavit in which he sets out an extensive account of the issues in the case, but most particularly about the hearing, in a point by point comment on the document of Mr Siddall headed 'Case Overview'.

[5]In effect, what Mr Lavers describes is what each of the members of this Tribunal with our extensive past experience of Employment Tribunal hearings recognises as a perfectly proper and, more significantly, perfectly routine way, of approaching a case such as this, involving giving the Respondent the full opportunity both to question the Applicant, the opportunity to give evidence on oath, which Mr Lavers says Mr Siddall declined to do, and, thereafter, giving the opportunity, even though he was not minded to give evidence on oath, to present his case fully, the Chairman having asked him a number of questions and giving him the full opportunity to state what he had to say.

[6]This Tribunal is not assisted in this Preliminary Hearing by the presence of Mr Siddall who has indicated that he is not attending today. We are therefore in the position where there is on its face a stark disagreement between the Appellant and the Respondent to the appeal, each of them attested to in an affidavit, on the question whether the procedure was such that Mr Siddall did not receive a proper hearing as required by Article 6. Furthermore, the party from whom we would normally look for assistance in determining the question is obviously unable to assist through having no recollection of the hearing at all.

[7]It is our judgment that in these circumstances we have to do the best that we can. In doing so we are entitled to draw on what I previously described as the extensive experience of each of us of proceedings in the Employment Tribunal. What strikes us as singularly important is that what is described by Mr Lavers in considerable detail is an entirely routine form of procedure, particularly in a case where one party is apparently unwilling to give evidence on oath. What on the other hand is described by Mr Siddall would be an extraordinary and, in our judgment, outrageous way of conducting a hearing which, if the Tribunal in question had adopted such a course, would plainly have stuck in the mind of the Chairman. The fact that the Chairman has no recollection at all of this hearing indicates to us most strongly that there was nothing particularly untoward about it. That sways us very much to accepting the truth of what Mr Lavers says in his affidavit and we do so.

[8]On that basis, as there is unlikely to be any further material available to the Employment Appeal Tribunal, it is our view that the appeal of Mr Siddall is simply unarguable and therefore falls to be dismissed at this preliminary stage.