Appeal No. EAT/147/92
	EAT/290/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 4th September 1992

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MS B DEAN

	MR J C RAMSAY

EDALE LIMITED	APPELLANTS

R TUCKER & B PRESTON	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR DAVID A PEARL
(Of Counsel)
Messrs Davies Arnold Cooper
60 Fountain Street
Manchester
M2 2FG

For the Respondents	MR A FARRELL
Southampton & District Unemployed Centre
11 Porchester Road
Woolston
Southampton
Hampshire
SO2 7JB

	MR JUSTICE WOOD (PRESIDENT):  The Applicants, Mr Tucker and Mr Preston had each have been employed by the Respondents, Edale Limited for a very substantial number of years, in one case 32 and the other 21.  They were dismissed from their employment on the 14th June 1991.

	By Originating Applications dated June and July 1991 each of them alleged unfair dismissal.  In each case the Notices of Appearance raised the issue of redundancy.  The reason given for their dismissal was redundancy and the sole relevance of what was said in each case was relevant only to redundancy.

	The matter came before an Industrial Tribunal sitting at Southampton under the Chairmanship of the learned Regional Chairman, Mr Michael Rich.  First of all on the 12th November 1991, that was day one.  There was then a break of some 5 weeks and the matter came back before the same Tribunal on the 20th December.  It is somewhat important to note the break because of what occurred.

	The dismissal being conceded on day one, as we can see from the Notes of Evidence, the case for the Company, the Respondents, was opened by the Managing Director Mr Barker, and we have the learned Chairman's note of that opening.  The opening dealt with the issue of redundancy so far as we are able to discern it from the Notes of Evidence.  A bundle of something like 22 documents was produced on the day of the hearing and Mr Farrell, who was representing the two Applicants, saw it and had a short time to peruse it before going before the Tribunal.  Within that Bundle were two statements, one from a Mr Madigan and the other from a Mr Trimble.  In asking questions of witnesses Mr Barker referred to those two documents in the Bundle and asked the witnesses whether they accepted these factual.  But neither Mr Madigan nor Mr Trimble gave evidence to the Tribunal.  One of the issues being raised by those two statements related to the conduct of the two Applicants.  It was said that their handling of personnel matters left a great deal to be desired and that they were not skilled at it; there had been problems and some people, literally did not like being in contact with them, in the sense of being under their management. 

	On day two, a Mrs Parfitt specifically gave evidence to the Tribunal and said that two people had left because of frustration over the supervisors;  they had complained to her about it.  Amongst them, of course, was Mr Madigan.  One of the two Applicants then said to Mr Farrell, I have got a letter that proves that to be nonsense, or words to that effect.  He produced that letter, which is dated 15th September 1989, and which purported to show that Mr Madigan, who had left the Company, but had been re-employed by the Company had come back at a different date from the one mentioned in the statement by Mr Madigan and that he had come back and had been content to work under close supervision from one of the Applicants.  That tending to undermine the evidence being put forward, which would seem to us to have been put forward on the basis as being relevant only to an allegation of conduct which had not been made.

	Having seen and heard the witnesses, and examined the documentation, the Tribunal gave its decision finding that both Applicants had been unfairly dismissed and adjourning the matter of remedies.  

	An appeal was launched to this Tribunal against the main Decision and also against the refusal by the learned Chairman to adjourn the issue of remedies until after this Tribunal had dealt with the main liability Decision.  This matter came before us on the 22nd July, we adjourned after giving some directions and it has come back before us today.

	There are two points made by Mr Pearl for the appellant Company.  The first relates to that letter of 15th September 1989.  He submits that this letter arrived on the afternoon of the second day, that was when it came to light, and that the Company were taken by surprise. They could find no copy of this letter on their files, and they were not in a position there and then to make full enquiries about it.  They have now done so and they have found an earlier document, which is before us, a letter of 24th November 1988 which shows that Mr Madigan came back and was re-employed as early as December 1988 and therefore that the letter of September 1989 did not relate to his re-employment at all but was confirmation of a post which had been envisaged when he came back in 1988.  There is also before us an exhibit,  from a partner in the firm of Solicitors now acting, exhibiting much fuller statements about the whole matter and therefore the inferences to be drawn from the letter of September 1989 are quite different from those which were drawn by the Industrial Tribunal.  If one looks at the well known principles in the case of Ladd v. Marshall and Harvey, Vol.3, Div.10 para.300, Mr Pearl submits that the evidence could not have been obtained with reasonable diligence because of the element of surprise on the last day in the afternoon, and we would agree with that.  Secondly, that it would probably have an important influence in the case and with the consent of both sides we have looked at it and we think it is highly material.  Thirdly, that it is apparently credible and indeed it is part oral and part in documentation.  So it would seem to us that the principles of Ladd v. Marshall are satisfied.
Mr Pearl submits that the presence of that letter and the inferences drawn from it really had a totally lopsided effect upon the consideration which the Tribunal were giving to the factual issues before it.  It had an effect which tipped the balance but it did so quite unreasonably in the circumstances and it affected the whole of the Decision.  Therefore the matter should be remitted as a whole for a re-hearing.

	Mr Farrell submits that it did not have that effect and that in any event these matters can be looked at again at a hearing on remedy.

	The Decision is constructed in this way.  The learned Regional Chairman has set out the history of the matter and finds the facts.  He points out that the respondent Company carried on business as manufacturer of machines for printing on foil, a very specialised trade, and that Mr Barker, who controlled it, had also bought another Company which was called "P B & E Engineering Limited".  The re-organisation took place between those two companies and it was eventually decided that Mr Preston and Mr Tucker should go.  The facts are recited in this way in paragraph 5(k) of the Decision:
"At about the end of the first week in June, a decision was made that the two applicants should be made redundant.  The reason for this choice we were told was that they were not entirely satisfactory in their work.  There had been problems over the 4 years since Mr Barker had arrived, and, indeed, on the evidence, very considerable problems with regard to the work, their respective attitudes, and certainly their conduct towards other members of the staff.  It was said that females had been brought to tears and had complained to Mrs Parfitt;  that staff had left because of the attitude of the two applicants."

Comment was then made that no disciplinary proceedings had ever been taken against them.  He looked at the written statement of Mr Madigan and Mr Trimble and then referred to the letter of the 15th September 1989 in the following way in paragraph 5(n):
"(n)The evidence of Mr Tucker is that he was the man responsible for the re-engagement of Mr Madigan and, indeed, he produced a copy of a letter he had written to him on the subject on 15 September 1989.  He said that Mr Madigan had returned as an inspector and was responsible to him and to Mr Preston.  Mr Preston confirmed it.

(o)On the evidence we have seen and heard, we find that the written statement of Mr Madigan is false.  The balance of probability is that he did not leave because of the applicant's conduct towards him nor did he return in the circumstances in which he says.

(p)That in turn, throws doubts on the statements of Mr Trimble, who says he left because of difficulties with the two applicants.  Both applicants were told by Mr Trimble that he left because Mr Grob appointed a man to a new post for which Mr Trimble felt that he was suitable and he thought thereby that his promotional prospects had gone.  We prefer the evidence of both applicants having seen and heard them give evidence." 

They find later that they cannot rely upon the statement of Mr Trimble.

	The issue before the Tribunal was not one of conduct as a reason for dismissal, it was a collateral matter and the Tribunal found that they preferred the oral evidence of the two Applicants but they also refer to the letter of September, there was no need to do that, but they did and argued through it to reinforce the view that they had taken of the witnesses as they had seen and heard them. 

	The Tribunal, thereafter, consider the question of redundancy.  Mr Pearl having heard some of the questions put to him from this Court, now concedes that there was no redundancy in the case of Mr Preston and that in Mr Tucker's case there may or may not have been a redundancy but there might have been some other substantial reason within Section 57.

	We look at the reasoning of the Tribunal and it seems to us that they were perfectly entitled to say that the respondent Company had not satisfied them that there was a redundancy.  That was clearly a question of fact, we have been referred to a number of documents but it seems to us that that cannot be challenged.

	Lastly, the Tribunal look at the question of selection and procedure.  These two men after very considerable years working were really dismissed without proper consultation, and they so find.  They therefore sum up their Decision in this way in paragraph 14:
"To sum up, we have to say whichever way one approaches this case, whether on the reason for dismissal, whether under the Transfer of Undertakings Regulations, whether on the basis of whether the employer acted reasonably, in selection, the criteria, the objectivity of application, or whether one considers consultation, the sorry fact is that the respondent seems to have failed dismally at every point."

We ought just to interpose there to say that the issue under the Transfer of Undertakings Regulations is not seriously taken before us, we have now seen a contract for the purchase of shares, it seems to us that that is not well founded.  So the situation is this, Mr Pearl says because of the production of that letter late in the day this Decision is really undermined.  

	We can understand that the Company feel that they have now found further evidence about the matter but it also seems to us abundantly clear that all this evidence will be available to the Tribunal when it comes to consider remedies.  We feel quite satisfied that if the Tribunal, having heard the whole of the evidence, decide that perhaps the inference they drew from that letter of September 1989 was not a fair inference, then they will act in accordance with their findings on the whole of the evidence which they hear on the Remedies Hearing.  The procedure of the Tribunal is very much for itself and in the present case, they may well feel, it is a matter for them but because there is a feeling that there may have been a sense of unfairness we would urge them to look at the matter afresh and look at the whole problem which is before them.  However, on the issues which were before them they found that there was no redundancy and they found that in any event the procedure was faulty and their finding of unfair dismissal cannot be disturbed, it is clearly right on the way the facts were presented to them and on the facts that they found.

	There is no error of law in this case and the remedies are quite open, as Mr Pearl points out, he may wish to argue contribution;  he may wish to argue the Polkey v.  Dayton Ltd [1988] (H.L.(E)) principles;  he may wish to argue practicability and indeed, the whole overall background may be reviewed by the Tribunal because, in our judgment, there is fresh evidence here and in the circumstances they may wish to review and reconsider the basis of fact upon which they ought to proceed for the future.

	It follows therefore that this appeal must be dismissed.