MR A W HARDWAY v GATWICK EXPRESS LTD [2002] UKEAT 1302_01_1309

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1302_01_1309

Case No Appeal No. EAT/1302/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A W HARDWAYAPPELLANT

GATWICK EXPRESS LTDRESPONDENT

Before

Mr Recorder Underhill

Date 13 September 2002

[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant MR RECORDER UNDERHILL QC This is the preliminary hearing of an appeal against the decision of an Employment Tribunal sitting at London South dismissing the Appellant's claim for unfair dismissal. The Appellant was a train driver employed by the Respondents who was dismissed for deliberately damaging the Train Monitoring System in the cab of his train.

[2]The Tribunal held that the Respondents had satisfied all three limbs of the Burchell test, and it was common ground that dismissal was a reasonable sanction for the misconduct in question. At the hearing the Appellant was represented by Miss Colley, who lives with him and had herself recently been dismissed by the Respondents: it appeared at one point that something might turn on that, but that is no longer the case. Miss Colley has no experience of Tribunal representation, but she is plainly both highly intelligent and articulate, as is apparent from the quality of her written representations to us.

[3]The evidence was not finished until late on the day of the hearing, which was 4 May 2001. Miss Colley had, in advance of the hearing, prepared very full written notes for her closing submissions. It was suggested, and she agreed, that these should be treated as her initial closing submissions, with the Respondents submitting their own submissions by 2 June and Miss Colley having the opportunity to put in follow-up submissions in response to those of the Respondents within 28 days after that. The Tribunal indicated that it would be convening again on 15 August in chambers to consider the submissions and to reach a decision. That procedure was duly followed.

[4]Miss Colley wrote to the Registrar of the Appeal Tribunal on 29 August explaining that neither she nor the Appellant would be appearing today. She also indicated that of the eight grounds of appeal identified in the original Notice of Appeal, only one and part of a second were being pursued. We have carefully considered the remaining grounds on the basis of the original Notice of Appeal, which is itself very full, and the Skeleton Argument enclosed with Miss Colley's letter addressing the points which remained in issue.

[5]The first ground of appeal advanced by Miss Colley concerns the refusal by the Tribunal to admit in evidence a document known as the "Drivers Rules" which had been tendered late under cover of a letter from her dated 16 July 2001. That was of course after the date of the Respondents' written submissions. It was within the time limited for the Appellant's own follow-up submissions, but it seems, though this is not entirely clear from the papers before us, that Miss Colley had in fact already lodged those.

[6]That application was dealt with by the Tribunal in paragraphs 9 and 10 of the Extended Reasons as follows:

"9 Ms Colley had written to the Employment Tribunal service marked 'for the attention of the Chairman' a letter dated 16 July 2001. In that letter, Ms Colley asked the Chairman to exercise her discretion and to admit further evidence. She had apparently sent a copy of her letter of 16 th July to the Respondent's representative, but from the file it could not be seen that the Respondent's representative had commented on the application. 10 The Chairman considered Ms Colley's application to submit this further evidence with the members of the Tribunal when they reconvened on 15 August 2001. It was a unanimous decision not to admit the evidence. It had been many weeks after the close of the oral hearing. Ms Colley said in her letter that the documents were submitted late because in the shock of events after Mr Hardway's dismissal, he had overlooked their existence. The Tribunal noted the assiduousness with which Ms Colley had conducted the entire proceedings hitherto. The other difficult events that were going on in their lives at the same time as preparing for this hearing did not appear to affect Ms Colley's ability to prepare the case other than the omission of this one document. The Tribunal did not accept Ms Colley's reasons for the late submission of this evidence. Moreover, it was manifestly unfair for evidence to be tendered by one party once the proceedings had closed because in effect such conduct denies the other party an opportunity to respond thereon."

[7]We do not ourselves have a copy of the letter of 16 July. The Tribunal briefly summarises its contents in the passage which we have just quoted above. We know a little bit more about it from Miss Colley's grounds of appeal where she says that it:(a) explained the importance of the Drivers Rules, and suggested revisions to her submissions to take account of it, and

(b) apologised for not having referred to the Drivers Rules before, and explained the omission by reference to problems in her and the Appellant's lives at that time: in the skeleton these problems were identified as including unemployment, credit blacklisting, house repossession and medical treatment which Miss Colley was undergoing.

[8]So far as (b) is concerned, her Skeleton Argument gives a rather different explanation. She says that the Drivers Rules only became relevant because of evidence given by one of the Respondents' witnesses at the hearing which had not been, and could not be, predicted. She then relies on the personal problems to which we have referred as explaining why no action was taken more promptly to supply the Drivers Rules following the hearing. Those two explanations may well be reconcilable, but it should be noted that that explanation was not, so far as the evidence before us goes, advanced to the Tribunal in the letter of 16 July.

[9]The grounds of appeal contend generally that the Tribunal ought to have admitted the document in the interests of justice. But, more particularly, Miss Colley contends that it was wrong for the Tribunal to say that the Respondents had had no opportunity to respond to the document. She had copied her letter of 16 July to the Respondents, and it was known that the Tribunal would not be convening to consider the case for another month. Therefore, she says, the Respondents had ample opportunity to say anything they wanted to say.

[10]Taking that more specific point first, it is of course right that the Respondents could have written to the Tribunal, either on the question of whether the Drivers Rules should be admitted at all, or attempting to deal with the substantive point which Miss Colley was making by reference to them. However, we do not believe that that was what the Tribunal meant. The Drivers Rules were a piece of evidence. The Respondents were, in principle, entitled to respond to any new piece of evidence by way of further evidence of their own. They might have formed the view that it was necessary to ask one of the witnesses to comment on the point which Miss Colley was now seeking to make. The opportunity to write a letter to the Tribunal is not the same as the opportunity to deal with a point properly by way of evidence. In our view, so understood, the Tribunal's comment was entirely reasonable. It was not necessarily decisive, but the Tribunal did not treat it as such: it had regard also to the fact that the document was not submitted until many weeks after the close of the hearing, and to the fact that it did not accept the reasons advanced by Miss Colley for the delay.

[11]The question whether to admit further evidence in the interval between the close of the hearing and the Tribunal's final decision is entirely a matter for discretion. If it cannot be shown that the Tribunal's reasons were flawed in law, there is no room for this Tribunal to intervene. We would observe that the decision could in fact have been supported on other grounds as well. It may well be, though we are not in a position to express a final view on this, that the new point which Miss Colley sought to make by reference to the Drivers Rules was not of central importance. It also seems to us that the Tribunal could not have decided to admit the Drivers Rules, and have regard to the point made by reference to them, without giving the Respondent the opportunity to comment. A decision to do so could not have been taken before 15 August, because the whole Tribunal was seized of the matter and it was not reconvening until that date. Accordingly, the Chambers hearing on 15 August would itself have had to be postponed, and it is of course by no means easy to reconvene a Chairman and two lay members. Inevitably it is likely that further weeks would have passed, and such a delay would have been unsatisfactory in a case where the hearing had already been as long ago as 4 May; there would also have been the question of disruption to the Tribunal's listing. In any event, it seems plain to us that this was a decision well within the Tribunal's discretion and that the ground of appeal raised by Miss Colley cannot succeed.

[12]The second ground relied on is that the Tribunal was wrong to hold that the employer was entitled to rely on the evidence of Mr Seabrook, the driver from whom the Appellant had taken over the train, and who was in the employer's view one of the only two other people who could have been responsible for the damage. The Appellant faces a high hurdle on this point because it involves, in effect, perversity on the part of the Respondents, that is to say that the employer should have found that Mr Seabrook's evidence was unarguably unreliable, and on the part of the Tribunal, on the basis that the Tribunal could only have reached one reasonable conclusion on the employer's conduct.

[13]What Miss Colley says is, first, that no proper regard was had to the fact that Mr Seabrook did not have the time to prepare the train properly for handing over to the Appellant, as he claimed that he had; and, secondly, that the Tribunal and the Respondents did not have proper regard to the evidence, which she says was incontrovertible, that he had only logged on at one end of the train. These points were fully before the Tribunal. They were considered by it in the Extended Reasons at paragraph 16, and at paragraph 17 the Tribunal said:

"The Tribunal found" [We interpose that that is a plain finding of fact] "that at the investigative stage (Mr Harding), disciplinary stage (Mr Whitwell) and appeal stage (Mr Banaghan) the question of the reliability of Mr Seabrook's evidence was considered in detail and that the Respondent had good reason for finding that Mr Seabrook had made proper checks of the train notwithstanding the shortness of time. The Tribunal also found that the Respondent had good reason for holding that undue reliance could not be placed on document 57 - (8(b(i) of the Respondent's submission refers more fully). Essentially document 57 represents only half the records; the other half of the records having been destroyed."

[14]The fact that the point was expressly considered and dealt with by a finding of primary fact of that kind by the Tribunal seems to us to make the Appellant's point unarguable. We would, however, also observe that it appears from the notes of the disciplinary interview that the point was also fully put to the Respondents by Mr Erskine, of the Appellant's union, who was representing him. We refer to pages 132 -133 of the supplementary bundle put in by the Appellant.

[15]This Tribunal has a limited function. We do not rehear the issues before the Tribunal, let alone the issues before the employer's disciplinary panel. It is clear that the points on which Miss Colley now relies were fully considered by Employment Tribunal, and we can see no error of law in the conclusion to which it came. This appeal must therefore be dismissed.