Appeal No. EAT/285/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 19 January 1993

	Before

	HIS HONOUR JUDGE J HICKS QC

	MR J P M BELL CBE

	MR J D DALY

L CRUDDAS	APPELLANT

EAST MERCIA CO-OPERATIVE SOCIETY LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR G COCKBURN
(REPRESENTATIVE)
10 Hall Road
Burbage
Hinckley
LEICS

	

	JUDGE J HICKS QC:  This is the preliminary hearing of Mr Cruddas' appeal against the decision of the Industrial Tribunal which dismissed his application for unfair dismissal.  Mr Cruddas was working eventually for the East Mercia Co-operative Society, after a series of at least two merges of smaller co-operative organisations, and he had altogether worked for at least fifteen years as a roundsman and it was quite plain, and the Industrial Tribunal found, that he had been an exemplary employee.  

	In March 1990 he broke his wrist in a fall on an icy road and was off work until 20 May.  He continued to display his accustomed conscientiousness by providing four days' assistance to his relief in getting to know the round.  However, when he returned, that relief, a Mr Clamp, he found was now the roundsman for his round, round 5, and he was asked to become a relief roundsman, which was a distinct grade at a slightly enhanced rate of pay.  He declined that and in the event he worked for a week as an assistant to the roundsman on round 12 and was then asked to take over round 12.  

	It was a matter of dispute before the Industrial Tribunal as to the basis on which that offer was made.  The employers said that their intention was that he should take it over as a regular round but they did not produce any evidence that they had used that form of words; their evidence was that he was offered round 12 for "one week minimum indefinite", but his evidence as recorded by the Industrial Tribunal, was that he was told that it was for "one week minimum" without the addition of the word "indefinite".  The Industrial Tribunal did not in fact resolve that dispute of fact because they said that they considered the difference of no significance. On his continued refusal to accept round 12 the employers dismissed him on the basis that that was a refusal to comply with a lawful instruction.  

	Before the Industrial Tribunal there was an investigation and there were findings by the Industrial Tribunal as to the distinction between a roundsman or a "rounds worker", as the job was officially described, on the one hand, and what was commonly called a "relief roundsman" but which was officially described as a "rotary rounds salesman/saleswoman", on the other.  That is the general background to this appeal.

	Mr Cruddas says that the Industrial Tribunal went wrong in law in certain respects and his main contention is that the Industrial Tribunal failed to understand the difference between a roundsman and a relief roundsman.  In our view that ground of appeal is not arguable, because the Industrial Tribunal in their Reasons set out the difference in some detail by reference to the relevant documents, and when they come to the point at which Mr Cruddas was offered round 12 they clearly have in mind that the substantial dispute between the parties was whether that was an offer of the round as a roundsman or as a relief roundsman.  

	It would also seem that Mr Cruddas was, at least in some parts of his evidence to the Tribunal and certainly in some parts of his submissions to us, actually arguing that he was entitled not to be displaced from round 5.  In so far as that is an argument which is still advanced, we do not think that it is arguable.  Mr Cruddas in fact, when asked the question, accepted that he told the Tribunal that he would have accepted round 12 had it been offered as a permanency, and he prefaced that in his remarks to us by saying, "I think I would have had to".  Therefore we do not consider that any kind of "tenure" of the original round, round 5, is an arguable ground for attacking the Industrial Tribunal's decision.

	On a preliminary hearing of an appeal, especially when an Appellant appears in person without professional representation, we consider it our duty to consider whether there is any potentially arguable ground of appeal appearing from the documents before us, whether or not it is one taken formally in the Notice of Appeal as it presently stands.  We have come to the conclusion that there are two matters which are arguable, without of course coming to any conclusion one way or the other whether such an argument would be successful. 

	The first is that the Industrial Tribunal may be argued to have erred in law in holding that it was of no significance whether round 12 was offered for "one week minimum" or for "one week minimum indefinite", and in failing to resolve the issue of fact which of those words were used.

	The second is that the Industrial Tribunal arguably erred in law in failing to consider as a separate issue whether in the circumstances summary dismissal was within the range of reasonable measures which could have been taken by reasonable employers, given the finding of refusal to comply with the instruction to work on round 12, or as a variation of that ground, that no reasonable Tribunal properly directed could have found that that measure was within that reasonable range.

	For those reasons we have decided to direct that this appeal go to a full hearing.  In view of that last potential ground, that no reasonable Industrial Tribunal could have reached that conclusion, it is necessary to direct that Chairman's notes of evidence be obtained.

	We give leave to amend the notice of appeal so as to add the two grounds which I have annotated and finally we add this, that in our view, from what we have seen of the papers and heard about this case, this is a case where it is particularly true that the Employment Appeal Tribunal which hears the substantive appeal would be much helped, to say nothing of the help it might be to Mr Cruddas' own case, by having the help of professional representation for him.   

	It is not for us to give any directions, or indeed advice, in any formal sense, to Mr Cruddas, but if by an application for legal aid, if it has not already been done, or any other means it is possible for him to contemplate being professionally represented before the Appeal Tribunal on the full hearing of the appeal, then we think that it would certainly be worth his while to give serious consideration to the possibility.

	Mr Cruddas will have to write formally to the Registrar amending his grounds of appeal so as to add the grounds pursuant to the leave given.  On that basis we order that the appeal go forward to a full hearing.

	SUGGESTED AMENDMENT TO NOTICE OF APPEAL

1.That the Industrial Tribunal erred in law in holding that it was of no significance whether round 12 was offered for "one week minimum" or for "one week minimum indefinite" and in failing to resolve the dispute of fact which words were used.

2.That the Industrial Tribunal erred in law in failing to consider as a distinct issue whether in the circumstances summary dismissal was within the range of reasonable measures which would have been taken by reasonable employers and/or that no reasonable Industrial Tribunal properly directed could have found that it was within that range.