GEORGE KIRK & SONS v MISS C S W MOODY [2004] UKEAT 0023_04_2210
[1]APPEARANCES For the Appellants Mr A G Kerr-Smith, Representative Of- Messrs Kerr-Smith Associates 5 Sandhaven Sandbank DUNOON PA23 8QN For the Respondent Miss L Locke, Advocate Instructed by- RGM Solicitors 131 Church Walk DENNY FK6 6HS SUMMARY PRACTICE AND PROCEDURE Case management LORD JOHNSTON: 1. When this appeal opened before us, Mr Kerr-Smith made a number of serious complaints about the procedures which have been followed.[2]There was an initial hearing on 7 March in respect of which, as far as formality was concerned, no complaint was made. However, at the end of that hearing, it was maintained that the Tribunal asked for written submissions on the question of quantum. A further hearing was convened but the Chairman failed to show up. A subsequent letter of apology indicated that he had had a diary problem. Nevertheless there was no further hearing on the matter. Yet some four months later the present decision was issued without reference to the parties. It is not even known on the face of the record whether or not the other members of the Tribunal were consulted.[3]If that were not enough, Mr Kerr-Smith represented to us that the Tribunal had completely misrepresented his client's position, as regards the reasons for dismissal and had completely misunderstood the difference between "unemployed" and "available for employment". The incontrovertible evidence, he submitted, being that this lady was unfit for work and this had a big substantial bearing on the claim for compensation.[4]In addition, when examining that claim, it is quite impossible to work out how the Tribunal reached the decision it did, referring only to "just and equitable". In any event, it is arithmetically incorrect.[5]It has to be said, in the opinion of this Tribunal, that the procedure followed by the Chairman was fundamentally flawed and has not done justice between the parties, quite apart from the apparent errors in the decision.[6]In these circumstances, we intimated orally to the parties at the conclusion of the short hearing before us, that we considered a substantial injustice might have been perpetrated by the way this Tribunal has conducted itself and the matter will accordingly have to be reheard.[7]In these circumstances this appeal is allowed and the decision quashed. It will be remitted to a differently constituted Tribunal for a rehearing on both the merits and compensation, if any.[8]We feel bound to point out that the conduct of the Chairman with regard to the way the case was conducted is wholly reprehensible. Neither party can be considered in any way at fault for what happened.