Appeal No.	 EAT/645/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 February 1998

Before
THE HONOURABLE MR JUSTICE KIRKWOOD
MRS D M PALMER
MR A D TUFFIN CBE

CONNEX SOUTH CENTRAL	APPELLANTS

MR R COPELAND	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MISS A HARRISON
(of Counsel)
Messrs Vizards
Solicitors
42 Bedford Row
London
WC1R 4JL	
For the Respondent	MR S BROWN
(of Counsel)
Messrs Thompsons
Solicitors
Wentworth House
Easter Avenue
Gants Hill
Ilford
Essex
IG2 6NH	

	MR JUSTICE KIRKWOOD:      This appeal by Connex South Central Ltd is an appeal against a decision of an Industrial Tribunal which sat on 11th March 1997 at London (South), and which found, unanimously, that the applicant, Mr Copeland, had been unfairly dismissed. 

	Central to the Industrial Tribunal’s decision is a finding of the tribunal that there was not a shred of evidence that could lead the relevant officers of the railway company to conclude that the applicant had acted fraudulently or that there was an intention to defraud. Because the appeal turned upon the evidence before the Industrial Tribunal, there was an order made on a preliminary hearing on 25th July 1997, asking the Chairman to produce his Notes of Evidence. We are told that the Chairman’s Notes of Evidence came to hand on 11th December 1997. Thereafter, Counsel for the railway company who had appeared before the Industrial Tribunal and who appears before us, set about the task of collating from her notebook and that of her instructing solicitor, a considerable series of amendments to the Chairman’s notes which they desired to put forward and to rely upon on the appeal. 

	Before the Industrial Tribunal the employee was represented by Mr Morris, a trade union representative and not by Counsel. However, Counsel, Mr Brown, has been instructed on behalf of the employee and respondent to this appeal, for the purpose of the appeal. Counsel for the appellant company apparently submitted her suggested amendments to the Notes of Evidence to Mr Brown who was plainly in no position to know whether the amendments accurately reflected evidence adduced before the Industrial Tribunal, because he was not there. Mr Brown was, however, given the opportunity to go through the notebooks of Counsel for the appellant and her instructing solicitor, and to check from those the suggested amendments to the notes. Mr Brown tells us that even then there was some matter that remained controversial. Mr Brown’s position, apart from that, was that the suggested amendments appeared to reflect what was in the notebooks, but he was unable to agree the amendments to the notes in the sense of agreeing that as amended the notes accurately reflected the evidence given.

	The amended notes were then submitted to the Chairman for his approval, and we are told that that was done on 28th January 1998, about a week ago. It is not surprising that the Chairman has not had the opportunity, yet, to address the matter in the light of his, no doubt, extremely heavy trial commitments. So the amended Notes of Evidence are neither, properly so described, agreed between Counsel, nor are they approved by the Chairman.

	As the case was opened before us, it became more and more apparent that Miss Harrison, for the appellant, wished to rely on a number of the passages in the amended notes, and we were left to reflect on the extent to which we could follow such submissions.

	Following the short adjournment, we have given Miss Harrison the option of prosecuting her appeal on the basis of the Chairman’s Notes of Evidence as produced by him, or of an adjournment of this appeal to enable the response of the Chairman to the suggested amendments to be forthcoming. Miss Harrison, on instructions, has opted for the latter course, an adjournment, so the case will be adjourned.

	It is a matter of very considerable importance that the Chairman is informed the true position, namely that Mr Brown, though agreeing that the amendments appear to reflect passages in the lawyers’ notebooks, is entirely unable to agree that the amended notes, as prepared, accurately reflect the evidence given. So that the Chairman knows the proper foundation upon which he is asked to consider this document, I shall ask Mr Brown to be sure that those comments are passed to the Chairman immediately.

	This case will be adjourned and it will have to be adjourned to a date to be fixed. We will now consider the question of costs.

	The appellants are to pay the costs of the respondent thrown away as a result of the adjournment.