Appeal No. EAT/735/94
			EAT/243/95

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 23rd May 1995

	Before

	HIS HONOUR JUDGE SMITH Q.C.

	MR K M HACK JP

	MS S R CORBY

ALLDERS DEPARTMENT STORES LTD	APPELLANTS

MR A FRANCIS	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING - EX-PARTE

Revised

	APPEARANCES

For the Appellants	MR CHRISTOPHER SHARP
(Employee Relations Advisor)
Collinson Grant Consultants Ltd
Colgran House
20 Worsley Road
Swinton
Manchester
M27 5WW

	

	JUDGE SMITH QC:   We have considered this matter very carefully indeed. We all take the view that the Tribunal's findings of fact relating to Mrs Johnson's evidence are matters which cannot be gone behind on Appeal. 

	The view that we take after discussing the matter, and it is a view that one of us at least holds, namely myself, is that there is an arguable point of law which should go to a full Appeal. To the effect that the Tribunal may have misapplied the case of Taylor v Parsons Peebles NE1 Bruce Peebles [1981] IRLR 191, in all the circumstances. That is the first point. So that point may be taken on appeal.

	The second point that may be taken upon Appeal, in our judgment, is the argument that the appeal hearing before Miss Corrigan cured any defect in Mrs Johnson's failure on the Tribunal's findings, to consider the applicant's record. 

	We make it clear however that we are not allowing any Appeal upon the basis that the appellants can seek to go behind the Tribunal's findings of fact relating to Mrs Johnson's evidence. I hope that is made crystal clear. In other words, where the Tribunal say in paragraph 11, "In this case Mrs Johnson categorically stated ..." and so on, that is a finding of fact which the Appeal cannot seek to go behind. However, where the Tribunal say:-

		"12 ... We believe that Mrs Johnson had made up her mind ..."

Now that is a matter which can be subject of argument before the Appeal Tribunal, as to the meaning of that, and whether there was any evidence to support that. But not the other matter that I mentioned.

	So, we allow the Appeal as whether the dimissal was fair in that way. We allow the matter to go to a full hearing on those grounds.

	With regard to the separate compensation hearing, also the subject of an appeal, we take the view that there is an arguable point which should proceed to a full appeal on one particular matter, in relation to the findings of the Tribunal, relating to the Polkey point. We consider that there is arguably a degree of ambiguity in the finding of the Tribunal in paragraph 6. And accordingly it may be that there is an arguable point that the Industrial Tribunal should have made a percentage reduction, under Section 74(1), applying Polkey.

	It is clear that the two appeals ought to be joined together and tried as one, it is quite inappropriate that they should any longer be allowed to remain as two separate appeals. The whole matter must be dealt with by one Employment Appeal Tribunal. We do not order that the Chairman's notes of evidence should be before the Employment Appeal Tribunal. But we do order that all the contractual documents relating to Mr Francis's contract and any documents that set out the disciplinary procedure. All the contractual documents relating to the disciplinary procedure and the contract should be before the Employment Appeal Tribunal. Thus we rule that the Appeal cannot proceed on the basis that the appellant's adviser was shut out from cross-examining or anything of that kind, it is not to be that kind of appeal hearing. I hope that I make the position clear. It should proceed to a full hearing on appeal, on whether the Industrial Tribunal misapplied the case that I have referred to already, the Scottish Case, and whether they failed to take into account the submission that the appeal hearing corrected any defects in the first hearing. On those two points there are arguable grounds of appeal. In addition there may be argument as to whether the finding that Mrs Johnson had made up her mind to dismiss before the hearing was justified on the evidence.

	Also on the compensation hearing, purely on the Polkey case relating to percentage.

	Additonally, if the Appellants wish to argue it, that the Section 74(6) contribution of 25% was too low, but that is always an Everest to climb. It must be for the Industrial Tribunal to decide what the appropriate contribution should be, save in exceptional circumstances.

	We are not ordering the Chairman's notes of evidence, and we repeat that we disallow any appeal on the basis that the Chairman did not listen properly, or that he prevented the appellant's adviser from cross-examining properly, none of that is permitted.

	Accordingly we allow the matter to proceed on the grounds of appeal referred to above.