Appeal No. EAT/631/91

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 14 November 1991
	Judgment delivered 3 December 1991

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MRS M L BOYLE

	MRS M E SUNDERLAND JP

DERBY DAILY TELEGRAPH LTD	APPELLANTS

MRS L FOSS	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

	(INTERLOCUTORY)

Revised

	APPEARANCES

For the Appellants	MR M SUPPERSTONE QC
Messrs Foot & Bowden
Solicitors
70/72 North Hill
Plymouth
Devon PL4 8HH

For the Respondent	MR J McMULLEN
	       (of Counsel)
Messrs Robin Thompson &
       Partners
Solicitors
Price House
37 Stoney Street
The Lace Market
Nottingham NG1 1NF

	MR JUSTICE WOOD (PRESIDENT):  On the 14th November of this year we heard an Appeal from an Order for Interim Relief made by an Industrial Tribunal Chairman sitting at Nottingham on the 7th October 1991.  The main Hearing was fixed for the 20th November.  We allowed the Appeal but indicated that we would give our reasons in writing later.  This we now do.

	Mrs Foss had been employed by the respondent employers Derby Daily Telegraph Ltd for some years before being summarily dismissed on the 9th September 1991.  She issued her Originating Application within the relevant time supported by a letter from the Branch Secretary of her Trade Union claiming Interim Relief.  She claimed that she had been dismissed as the result of her Trade Union activities and/or membership.  Her Originating Application alleged that she was the accredited Mother of Chapel for SOGAT at her place of work.  Further or in the alternative she claimed unfair dismissal.  Her employment was as Newsroom Secretary/Chief Copy Taker.

	By their Notice of Appearance the employers alleged that Mrs Foss had been dismissed for gross misconduct in that she had been misusing the firm's telephones to make personal telephone calls between the 10th July and the 23rd August 1991 and during that time she had made some 150 calls some 86 of which were identified as being to her home or to members of her family.  This was after a memorandum had been circulated on this topic.

	There had been an internal disciplinary hearing followed by an appeal at the end of which the decision to dismiss summarily was upheld.  There is no indication on the documentation before us that those facts were in issue.

	At the Hearing before the Industrial Tribunal the Applicant, Mrs Foss was represented by Counsel and the respondent employers by a Solicitor.  Counsel opened the matter and then indicated that he was calling Mrs Foss to give evidence, at which juncture the Chairman interjected indicating that he regarded this sort of Hearing rather as akin to an Order 14 application and that he would not allow witnesses to be cross-examined.  He could see no point in calling any witnesses.  This was the version of the matter given by the employer's Solicitor.  It is common ground that Mr Buchan then asked for an adjournment and when he returned to Court asked only to be allowed to make some further points which he then did.  The Tribunal was then addressed by Mr Loney for the Respondents during which address the phrase "closed shop" was used.

	It is common ground that no oral evidence was given at all.  

	In their Notice of Appearance the employers had stated that they were unaware that Mrs Foss was a member of a Trade Union until this was disclosed during the disciplinary hearing.

	The only documents before the Industrial Tribunal were the Originating Application and the Notice of Appearance and a letter of the 25th April 1991 referred to in the Judgment, which was a letter from the Managing Director of the Derby Daily Telegraph Ltd to a Member of Parliament, Mrs Beckett.

	The first criticism made by Mr Supperstone of the Reasons is that conclusions of fact were made without any oral evidence and indeed any written evidence save the letter of the 25th April.  He submits that the "pleadings" should not be regarded as evidence.  There is no admission on them and apparently they have not been put to the parties to see whether the parties accepted them on oath.

	Secondly, he submits that certain findings of fact are perverse.  In order to understand this submission it is necessary to cite some paragraphs from the Decision.  The first finding is contained in paragraph 6 and is encapsulated in the phrase:
"I find it difficult to believe that the respondents did not know that the applicant was trade union member."

In order to examine this we must set out paragraphs 5 and 6:
"Until there was a change in the law the likelihood is that at the respondents there was a closed shop.  It would have been apparent that at that time the applicant was a trade union member.  The abolition of the closed shop and de-recognition of SOGAT does not mean that employees cannot still be members of the trade union or carry out trade union activities.  The respondents received letters from Members of Parliament and on the 25 April they replied by letter to an MP on the subject of representation of employees by trade union representatives.

6.	I find it difficult to believe that the respondents did not known that the applicant was a trade union member.  I think that they either knew or else they shut their eyes to the situation.  I have doubts about their denial in the notice of appearance."

	In his criticism Mr Supperstone submits first that there was no evidence of a "closed shop" at this works;  secondly, that there never had been a "closed shop" at those works within the knowledge of the Managing Director and that included a period of some five years;  thirdly, that at no time was any "closed shop" in the bargaining unit to which the Applicant was connected.  The Applicant has never been a member of a "closed shop".

	He submits therefore that there is no evidence of any kind upon which paragraph 5 of the Decision can be based.  Mr McMullen for Mrs Foss submits that it is immaterial whether or not there was a "closed shop" for the decision of the learned Chairman, but it seems to us quite clear that the two paragraphs were intended to be read together and that paragraph 6 has its reasoning based on the findings in paragraph 5.  There is no evidence whatsoever upon which that reasoning could be based and we find ourselves bound to accept the submissions of Mr Supperstone.

	The second issue of fact is raised by the findings in paragraphs 7 and 9 which read:

"7.	The respondents say that the applicant was dismissed on account of the telephone calls.  On the 5th July the respondents had circulated a memorandum to Heads of Department about personal calls in which they reiterated company policy.  The memorandum said:-

`It is not acceptable for extended personal calls to be made on a frequent basis.  I would be grateful if you could remind all your staff about this."

8...........................

9.	I find it difficult in view of the terms in which the memorandum of 5 July is written and the applicant's record of service, to see how it can be said that her conduct fell within the definition of gross misconduct."

	Of this finding in paragraph 9 Mr Supperstone raises the following comments, first that although a sentence of the memorandum was clearly read aloud, the memorandum itself consisted of some four paragraphs extending over at least half a page;  secondly, that there had been no explanation of the facts which were not in dispute;  thirdly, that there had been a disciplinary hearing;  fourthly, there had been an appeal hearing and in conclusion that on the evidence which could be envisaged as possible evidence in the case there could well have been and indeed, he will submit in due course, that there was gross misconduct.  He submits that it is wholly unfair without hearing any evidence to have reached that conclusion and that is an approach which is open to severe criticism.  Mr McMullen submits that the learned Chairman was entitled to take this view.

	Lastly, Mr Supperstone submits, as his third criticism that the learned Chairman erred in the direction he gave himself in law.  That direction is to be found in paragraph 11 which reads:
"11.	I have to form a view on the application for interim relief according to whether the applicant has a pretty good prospect of success in her complain under Section 58 of the Employment Protection (Consolidation) Act 1978.  I conclude that she has more than a 50% chance.  In my view she has a chance which is sufficient to justify me in making an order for continuation of her contract of employment pending determination or settlement of her complaint."

The first sentence of that paragraph is not criticised and indeed the direction is clearly given on the basis of Taplin v. C Shippam Ltd [1978] ICR 1068.  One perhaps might have said that her case "looks like a winner".  However the submission is that the two later paragraphs indicate the way in which the assessment of "pretty good prospect of success" has been analysed and that is contrary to the guidance given in that same case at page 1074 C to E.  Indeed, to approach it in that way was thought to be "wrong".

	Mr McMullen submits that the first sentence should be looked at alone, but we have reached the conclusion that the latter would not have been inserted unless that was the way in which the learned Chairman had approached his decision.  We therefore unanimously are of the view that there was an error of law in that direction.

	Mr McMullen made a number of other general submissions with which we have not previously dealt.  He first submits that the employers here had elected not to call evidence.  There seems to us to have been some misunderstanding about this as the Solicitor acting for the employers clearly understood that no evidence was to be called and in the circumstances and the explanation given to us we can understand this.  Secondly Mr McMullen submits that it is open to the learned Chairman to conduct the proceedings entirely as he thought fit and within his discretion.  This we fully accept but we do not accept that he is entitled to make findings of fact without any evidence at all and the evidence if the letter of the 23rd April can be called evidence, it does not support his findings of fact.  There is no earlier case to which we have been able to refer where no evidence has been called.  We also note that Mr Buchan was prepared and indeed expecting to call evidence.

	Lastly, Mr McMullen asked us to say that the law has changed sufficiently since 1978 for us to hold that Taplin had been wrongly decided.  Without examining this matter in depth we see no particular reason for so thinking but this point was not taken and argued in front of the learned Chairman and we do not propose to examine that proposition at this stage.

	Whilst we appreciate that applications for Interim Relief are apparently not very common nevertheless it seems to us that two aspects of the procedure are worth examining.  The learned Chairman likened the process to an Order 14 Hearing in the High Court.  In those hearings evidence on affidavit is presented and it is always open to a tribunal to deal with it in that way.  However this takes time and indeed the whole essence of the procedure is to provide some relief within a short time.  If in fact it is administratively possible, it seems to us that it would clearly be preferable for these applications to be based on the notion of "speedy trial" rather than as a purely interlocutory matter.  Secondly, there is a procedure before industrial tribunals called a pre-hearing assessment at which sometimes warnings are given as to the award of costs in certain events.  We understand that all the documentation connected with that hearing is placed in an envelope and not shown to the lay members of the eventual tribunal until after the end of the hearing.  It seems to us that the fact that an interim award had been made and that a Chairman had formed a clear view about the case together with the correspondence or documentation in connection therewith could be withheld from the lay members of the later tribunal until after the case had been concluded.  It may be that the existence of that award would be relevant on costs.

	For the reasons we have given therefore this Appeal is allowed.  Leave to appeal is refused.