Appeal No.	 EAT/589/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 October 1997

Before
HIS HONOUR JUDGE H J BYRT QC
MR R SANDERSON OBE
MR K M YOUNG CBE

PBF PILING LTD	APPELLANTS

MR S BAILEY	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	NO APPEARANCE BY
OR REPRESENTATION
ON BEHALF OF
THE APPELLANTS OR
THE RESPONDENT	
For the Respondent		

	JUDGE JOHN BYRT QC:     This is an appeal from the decision of an Industrial Tribunal sitting at Southampton.  A decision was promulgated on 4 March 1996 in which the Tribunal held that the employee, Mr Bailey, had been unfairly dismissed and ordered his employers to pay compensation and holiday money amounting to £12,185.70.  It is against that decision that the employers now appeal.

	Owing to the insolvency of the employers they are not represented, and for good reason also, the employee has decided not to expend further money in being represented here either.  In consequence we have to decide this appeal on the papers before us.

	The Industrial Tribunal’s decision as to the unfairness of the dismissal is based upon the evidence they heard and the employers’ concession which the Tribunal alleges was made at the close of the evidence to the effect that the dismissal had been unfair.  A record of that is provided in the Notes of Evidence, taken by the Tribunal Chairman, and it is a conclusion, supported by letters which have been sent to us by the employee’s Solicitors in which they record that, at the end of the day, the employers conceded unfair dismissal, quite voluntarily, and without any pressure from the Tribunal.

	Notwithstanding that, the employers’ Notice of Appeal claims that the concession was made as a result of duress imposed upon them by the Chairman.  This was a matter of concern.  At an earlier stage when this matter came up for a preliminary hearing, this Tribunal directed that certain passages of the Notes of Evidence should be obtained from the Chairman and his comments about the allegation be obtained.  But at any event, at that stage it was accepted by everybody that there had been a concession made but the employers, the Appellants, contended that it had been obtained by duress.

	When however, one looks at the case as it developed, and in particular the arguments to be advanced at this hearing on behalf of the employers, one sees that the position somewhat changed.  We have written submissions on the grounds of appeal produced by Oscar Leighton, the Consultant who appeared for the employers at the preliminary hearing.  His submissions, set out in paragraphs 2.1, suggests that there was no such concession made by the employers.  In particular, those submissions refer to the fact that the Tribunal Chairman’s Notes make no mention that there had been any such implied or spoken admission.  Then, over the page at the conclusion 2.2 they state that:

“2.2  It is the case of the Appellant company, that it never conceded an unfair dismissal took place.”

And this is quite plainly at variance with the position adopted by the employers in their Notice of Appeal.

	The allegation of duress against the Chairman of the Tribunal is a serious one and before this Tribunal will act upon it, the evidence suggesting that there had been such coercion or improper conduct on his part must be cogent.  All the evidence before us in our papers indicate that there was no such duress.  The only suggestion comes from the Notice of Appeal.  There is nothing in the written submissions which seeks to develop or explore the allegation of duress.  The submissions seem incompatible and inconsistent, with such an allegation.  In those circumstances, we reject the allegation that the concession made was under duress.  

	There is one other matter which we think needs mention.  On reading the Chairman’s Notes of Evidence it is apparent that part of the employers’ case was that Mr Bailey was incompetent and, as a result, caused the employer company considerable losses.  In fact, the employers go one stage further and say that there were strong suspicions of dishonesty, and that there was a criminal investigation into his conduct being undertaken.  Although these allegations were made, the Tribunal seem never to have considered the question of contributory conduct.  There is no record, either in the Chairman’s Notes of Evidence or in due course, in the Notice of Appeal to this Tribunal, that the employers were running an argument based upon contributory conduct.  Again, this is a matter which was picked up by this Tribunal at the preliminary hearing, and is referred to later in the submissions made on behalf of the employer company by Mr Oscar Leighton.

	We have considered this matter and if we were to allow further argument on this point, we would have to return this case to the Industrial Tribunals to make findings on this aspect.  However, the point occurs to us that the prime reason why it was not considered at the original Tribunal hearing may have been because it was never expressly raised as part of the employers’ case.  The case of Kumchyk v Derby City Council [1978] ICR 1116, makes clear that the circumstances in which new points can be taken here which were not taken below are extremely limited.  In that decision, Arnold J, as he then was, emphasised that there is no duty for the Chairman of the Tribunal to take points on behalf of either of the parties, which they have not taken themselves.  In the circumstances, we are satisfied that the Chairman was not at fault for not having raised this issue of contributory fault himself.

	We take a further point arising out of the case of Kumchyk.  Were we to allow the point to be taken now, the case would have to be remitted for further findings of fact. That is a further reason why we should not allow this new point to be taken at this stage.

	We also reflect upon the practicalities of the matter.  Nobody has attended this Tribunal to argue the appeal.  If the matter was returned to the Industrial Tribunal for this matter to be considered afresh, it is questionable whether anybody would find the resources to argue it there.

	In all the circumstances, we think the order to make is that this case stops here and accordingly, we dismiss this appeal.