Appeal No.	 EAT/961/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 December 1998

Before
HIS HONOUR JUDGE J ALTMAN
MR P A L PARKER CBE
MS D WARWICK

BELLAGO ENTERPRISES LTD t/a DOMINO'S PIZZA	APPELLANT

(1) MR C BAGGOTT 
(2) MR J McDOUGAL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR J SEARLE
(Representative)	

	JUDGE JOHN ALTMAN:	This is an appeal from the decision of the Industrial Tribunal sitting at Hull on 22 May 1998.  It comes before us by way of a preliminary hearing to determine whether there is an arguable point of law, such as to merit being heared in full by the Employment Appeal Tribunal.  I refer to the parties in their capacity before the Industrial Tribunal.

	The decision of the Industrial Tribunal was that both Applicants were unfairly dismissed and were entitled to be paid compensation then calculated by the Tribunal.  The appeal is based upon two grounds.  The first relates to what was in effect a preliminary decision of the Tribunal to proceed with the full hearing in the absence of one of the witnesses for the First Respondent, the Second Respondent having been dismissed; the witness and the Second Respondent are coincidentally one and the same person, Sarah Scott-Lundy.

	The second ground is that Mr Searle who appeared below and who appeared before us as the Representative for the Respondents, complains that he was not permitted to put in cross-examination matters of conduct by the Applicants post-dismissal in relation, first, to the main question of unfair dismissal, in which he would have wished to ask questions which related to the credit of those witnesses, and secondly in relation to the calculation of compensation.  We deal with this second ground first.

	In his affidavit, Mr Searle complains that he had information that one of the Applicants had removed from the Respondents premises two records of previous warnings given by the First Respondents to the other Applicant.  Secondly, he wished to put that one of the Applicants had been chasing the Respondents’ motorbike delivery drivers through the streets of Hull in his motor car so that Police were required to call to deal with it.  Thirdly, he wished to put that there was photographic evidence relating to post-termination employment which had been removed from the Respondents’ possession.  They believed this had been done by one of the Applicants and in relation to which there was Police investigation.  As to the last, therefore, it follows that such cross examination at the time would have been the assertion of the existence of photographs, alleged to show continuing employment, but which the Respondents would have been wholly unable to confirm by the production of those photographs.

	The Chairman of the Tribunal, Mr Grazin, by a letter dated 9 October 1998 has helpfully made some comments as to the reasons for his ruling.  He deals with the question of credibility, pointing out the well rehearsed proposition, that post-dismissal events cannot generally affect the fairness or unfairness of a dismissal, and pointing out his judgment, and that of the members, that the issue of credibility will not be advanced one way or the other by the cross-examination that was sought.  Furthermore, he points out that he would have permitted such evidence in relation to assessment of compensation which was a later process in the proceedings but that Mr Searle sought to adduce it at that earlier stage.

	The matter is governed by the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, Schedule 1, the Schedule setting out the Rules of Procedure.  Rule 13(1) provides:
“Subject to the provisions of these rules, a tribunal may regulate its own procedure.”

	It seems to us that is exactly what the Chairman with his members was doing on this occasion.  Further, the fact that there were no questions asked in relation to the assessment of compensation, was not due to any ruling by the Chairman, but simply to the fact that the point was not taken at that stage by Mr Searle, the Representative on behalf of the Respondent.  The Chairman’s rulings in relation to the earlier questions that Mr Searle sought to ask was an example of the ordinary “to-ing and fro-ing” that takes place about questions that are asked or should not be asked during a hearing in order to regulate proceedings in the most expeditious way.  We cannot see the beginnings of a point of law in relation to that issue and we dismiss the appeal on that ground at this stage.

	The remaining matter relates to the decision of the Tribunal to proceed in the absence of the Respondent’s witness.  Evidence was not given for the Respondent at the hearing.  This matter has come before us by way of preliminary hearing.  There was an issue that required consideration.  Without wishing to express any views as to the merits at this stage, it does seem to us right in those circumstances that the Respondent should know that the matter has, at the Employment Appeal Tribunal level, been decided only after full argument has been advanced by the Respondents and by the Applicants should they wish to appear or be represented. Accordingly, we have decided to permit this to go forward on that issue alone.  The issue is whether in exercising their discretion to proceed with the hearing in the absence of a witness that decision of the Tribunal was so perverse as to amount to an error of law.

	This matter will be listed for one and a half hours in category C. The Appellants are to furnish final skeleton arguments not less than 14 days before the hearing.  The Respondents to the appeal, that is the Applicants before the Industrial Tribunal, if they wish to be heard should set down in writing any arguments which they wish to raise in summary form, and that document is to be presented to the Employment Appeal Tribunal not less than 14 days before the hearing.

	In any event should the Applicants wish a letter to be considered, for instance, rather than their attending, they can communicate in that way; it is a matter entirely for them.  Both parties’ skeleton arguments are to be filed 14 days before the hearing.