Appeal No.	 EAT/764/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 October 1997

Before
THE HONOURABLE MR JUSTICE MAURICE KAY
MR L D COWAN
MS B SWITZER

MR P ELVINS 	APPELLANT

MR W COLLINS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR JOHN R ORME
(of Counsel)	

	MR JUSTICE MAURICE KAY:   This is a preliminary hearing of an appeal by Mr Elvins against a decision of the Industrial Tribunal sitting at Stratford, the hearing having taken place on 11th January 1996 and the extended reasons having been sent to the parties on 10th June 1997. There had been an earlier promulgation of summary reasons, but there was then a delay in proceedings which appear to be explained in paragraph 1 of the extended reasons.

	The issue before the Industrial Tribunal was whether the applicant in the Industrial Tribunal, Mr Collins, had been unfairly dismissed. He had been employed by Mr Elvins as a manager in a business owned by Mr Elvins and called Dalston Sound and Lights. It has been suggested to us today that the correct employer was in fact a Limited Company of that name rather than Mr Elvins, but that is not a point that has been taken hitherto and, as Mr Orme agrees, we can safely ignore it.

	The events which precipitated the ending of the employment relationship occurred on 15th July 1995. The facts found by the Industrial Tribunal disclose that on that occasion with the consent of Mr Elvins, Mr Collins had driven Mark Elvins, Mr Elvins’ son, to Oxford Street during his lunch break. In addition to Mr Collins there was another person who was involved in the place of work, a Mr Abrahams. There appears to have been some dispute about precisely what his role was. It matters not what precisely it was. The important finding of fact is that whilst Mr Collins and Mark Elvins were out for an hour and a half or so on 15th July, Mr Abrahams raised the question of their absence with Mr Elvins. Mr Elvins said he had given permission for them to go out. Mr Abrahams was then furious at their late return, and when they did return, Mr Abrahams shouted at Mr Collins for not being back on time and asked where he had been. We do not need to go into all the details, but one thing led to another, and in due course and unusually Mr Collins was asked to see Mr Elvins and in the course of a conversation, his employment came to an end.

	The issue before the Industrial Tribunal was a very stark one. Mr Collins said he had been summarily sacked by Mr Elvins; Mr Elvins said no, Mr Collins had walked out in circumstances amounting to resignation. I emphasise that this is a paraphrase of their respective cases.

	Mr Collins claimed unfair dismissal. In his response to that claim on form IT3, Mr Elvins stated:

“I did not dismiss the applicant. He walked out of his job like he did twice before.”

	It seems that between 15th July and the hearing, Mr Elvins lodged a document with the Industrial Tribunal in which he made a number of complaints about Mr Collins’ conduct in the course of his employment. The consequence of that lodging is described in paragraph 6 of the extended reasons as follows:

“6. ... Apart from the events of 15 July, the latest of these allegations was on 7 April 1995 and there was no suggestion that there had ever been any disciplinary action arising from any of them although, if true, they would have justified disciplinary action at the relevant time. At the end of that statement the respondent said “even though he misused his position as a manager I did not fire him because I needed him and I have spent one year training him”. The Chairman therefore directed that, as no reliance was being placed on these matters as grounds for dismissal and that, indeed, it was the respondent’s case that there had been no dismissal, they were not relevant to the issues before the tribunal which were confined to the question of whether the applicant resigned or was dismissed on 15 July, over three months after the last incident mentioned in the statement.”

	We are told by Mr Orme who represents Mr Elvins today, that at the hearing in the Industrial Tribunal Mr Elvins called witnesses including a Mr Anderson, and it had been Mr Elvins’ hope that Mr Anderson would testify as to Mr Collins’ alleged misconduct. In the event, the Chairman would not allow such questioning for reasons consistent with what we have quoted from paragraph 6 of the decision. 

	The hearing proceeded. Mr Collins gave evidence. Mr Elvins gave evidence, and so did Mr Anderson and Mark Elvins. It may be that others did as well. 

	Everything came down to an issue of credibility. The Industrial Tribunal found

“6. ... on the issue of credibility which we regarded as of considerable importance in preferring the evidence of the applicant on the crucial issues to that on behalf of the respondent.”

There were three matters which they considered to be important. In short, so far as the crucial conversation between Mr Collins and Mr Elvins was concerned, the tribunal accepted Mr Collins’ account and rejected Mr Elvins’ account. They not only state that as a fact in their decision, they explain by reference to three reasons contained in paragraph 6 as to why they came to that conclusion. We observe in passing that it was partly because one aspect of Mark Elvins’ evidence tended to support what Mr Collins was saying rather than what had been said on behalf of Mr Elvins and had been said by Mr Anderson.

	We are not a tribunal of fact. We have not seen the witnesses. We simply observe that the tribunal viewed this as a dispute of fact and unhesitatingly came down on Mr Collins’ side.

	The ground of appeal advanced by Mr Orme today is essentially encapsulated in his opening words which were that there had been a breach of natural justice at the Industrial Tribunal. We repeat now what I observed in the course of argument, that if it was arguable that there had been a breach of natural justice, we would of course be sympathetic to the continuation of this appeal. The question is, whether it is so arguable. 

	The breach of natural justice relied  upon and submitted by Mr Orme, relates to the refusal of the Industrial Tribunal to hear evidence about misconduct. By inference it is submitted that if it had heard such evidence it would have or might have effected the issue of credibility. Mr Orme goes further and suggests that simply because Mr Elvins was confining his case to resignation rather than dismissal, it did not absolve the tribunal from considering whether there had been a potentially fair dismissal even if it rejected Mr Elvins’ case so far as resignation was concerned.

	We have given careful attention to the submissions. In our judgment they are misconceived. The Industrial Tribunal was entitled to identify the issues which the parties were raising before them. It is apparent not only from Mr Elvins’ form IT3, but also from the contents of paragraph 6 of the decision that his case was purely and simply one of resignation rather than dismissal. In our judgment an Industrial Tribunal is under no duty to create a case for a respondent who makes his case as unequivocally clear as Mr Elvins had done. Nor do we think that it was incumbent upon the tribunal in its management of the proceedings before it, to permit exploration of the alleged areas of misconduct which were not relevant to the issue of resignation or dismissal. It may be that other tribunals may have been more permissive in this regard, but we are of the unanimous conclusion that this particular Industrial Tribunal was entirely justified in limiting the evidence as it did. It follows from that that in our judgment there is no arguable case of a breach of natural justice. 

	In the course of his submissions, Mr Orme referred to some particulars of the misconduct which he was submitting the Industrial Tribunal ought to have heard about. In fact, they went considerably further and deeper than what was suggested in the Notice of Appeal which was confined to an allegation that Mr Collins had set up a business on his own account in competition with Mr Elvins’ business and/or to Mr Elvins’ detriment. 

	As we have said, we are not a tribunal of fact, but our concern is simply to assess whether there is an arguable point of law raised by this appeal which has any prospect of success at a final hearing. It is our unanimous judgment that this appeal raises no such arguable point of law, and it is hereby dismissed.

	We observe in passing, that since the finding of unfair dismissal stands, the matter will have to go back to the Industrial Tribunal for a remedies hearing as was anticipated in the decision made by the Industrial Tribunal. We make it clear that we are not expressing any view as to the relevance of the matters of misconduct, if they were such, to that remedies hearing. Undoubtedly there are circumstances in which such matters can be relevant to a remedies hearing, and we are not suggesting for a moment that this is not such a case, that will be for the Industrial Tribunal to consider in due course.