Appeal No.	 EAT/399/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 May 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR J R CROSBY
LORD  DAVIES OF COITY  CBE

MR D EVERITT	APPELLANT

BRITISH TELECOMMUNICATIONS PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - INTER PARTES

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	
For the Respondents	MR P MASON
(of Counsel)
Instructed by:
The Solicitor
Group Legal Services
British Telecommunications Plc
81 Newgate Street
London EC1A 7AJ	

	MR JUSTICE MORISON (PRESIDENT):	The purpose of this hearing is to determine whether there are any arguable points of law in an appeal which Mr Everitt wishes to advance against a decision of an Industrial Tribunal which unanimously concluded that he had not been unfairly dismissed. That decision was reduced to writing and sent to the parties in June 1997 following a two day hearing.

	The brief facts necessary for this judgment are that Mr Everitt had been employed as an engineer by British Telecom, the respondent employers. During the course of his duties he was supplied with a work machine colloquially known as ‘the brick’ in which he recorded information as to where he was and what job he was doing. He was subject to some kind of investigation carried out by his employers who did some observations on him during a period of time, and the person who carried out those observations and was responsible for them, a Mr Bygraves, reported his findings in due course. It appeared to the employers that Mr Everitt had been saying that he was at places where he was not and had arguably misused a company vehicle for a private purpose.

	British Telecom have sophisticated dismissal procedures which involve investigating the facts and then various stages including appellate stages where appropriate. During the course of those procedures, as we understand it, Mr Everitt would have had no chance to ask questions of Mr Bygraves directly. 

	When the matter came before the Industrial Tribunal, a question was raised at an early stage as to whether Mr Bygraves was going to give evidence. As we understand it, the employers indicated that they were not proposing to call him and the representative on behalf of Mr Everitt indicated that provided that he could be treated as a hostile witness, Mr Bygraves would be called on their behalf. It would appear that the learned Chairman said that he could not, at that stage at any rate, indicate that the witness could be treated as hostile. In the circumstances, the Industrial Tribunal hearing proceeded in the absence of Mr Bygraves. The Industrial Tribunal concentrated therefore on the written material which had been generated by Mr Bygraves and as a result of information which he had provided to others. On that basis, the Industrial Tribunal concluded that the employers were reasonably entitled to form the view that Mr Everitt had been guilty of such gross misconduct as to justify his dismissal.

	Mr Everitt has appealed to us. His real point is that surely at some stage he should have been given the opportunity to ask questions of Mr Bygraves who, he believes, may have been motivated by ill will or some kind of grudge against him. It appears from the nature of the Industrial Tribunal’s decision that the facts, in the sense that the places recorded in the brick and the places noted by Mr Bygraves were not in dispute. What was very much in dispute was the intention of Mr Everitt in the record-keeping, electronic or otherwise which he made.

	It seems to us just to be arguable that as to whether the employers reasonably could have concluded that Mr Everitt should be dismissed without Mr Everitt having had an opportunity himself or through his trade union representative of either asking questions of Mr Bygraves or being present when Mr Bygraves was asked questions. It also seems to us to be arguable as to whether the Industrial Tribunal in a misconduct case is entitled to look at the employers’ decision without having any basic evidence, if I could put it that way, of the alleged misconduct. In other words, whether on the facts of this case, they would have been entitled to reach the conclusions that they did without having had the opportunity to hear Mr Bygraves give evidence or to see him being cross-examined.

	As we say, those points are just arguable. But the second one does raise an important question which is not always approached in a consistent way by Industrial Tribunals. Some tribunals will actually not allow, as we understand it, evidence to be given as to the facts of the alleged misconduct, but rather to concentrate on the material before the employer at the time when the decision to dismiss was taken. Whether that approach is correct or not, may be one of the matters which can be touched on on the hearing of this appeal.

	I would like to retain this matter therefore to myself. Mark it Category P for President. I estimate it will take a day to consider these issues properly. No Notes of Evidence will be required but I think that it would be of assistance to the Court if British Telecom had available the documentary material which was provided to the Industrial Tribunal. I think it would be convenient if we were to see that, because that will tell us what the evidence was before the Industrial Tribunal on which they based their decision.

	There is no need to amend the Notice of Appeal but those will be the two points which are to be argued. Mr Everitt will therefore understand that there are no other points to be argued on the appeal than those two. The former employers, British Telecom, will know when it comes to the hearing that those are the only two matters in issue.