Appeal No.	 EAT/118/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 June 2000

Before
HIS HONOUR JUDGE PETER CLARK
MS S R CORBY
MISS S M WILSON

MR J M THOMAS	APPELLANT

BRITISH POLYTHENE LTD t/a BRITHENE FILMS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MS MARY STACEY
(Solicitor)
Appearing under the
Employment Law Appeal
Advice Scheme	

HIS HONOUR JUDGE CLARK

1	This is an appeal by Mr Thomas, the Appellant before the Bristol Employment Tribunal (Chairman: Mr C F Sara) sitting on 18 November 1999 against that Employment Tribunal’s substantive decision dismissing his complaint of unfair dismissal.  Extended reasons for that decision were promulgated on 17 December 1999 together with an order made by the Tribunal declining to strike out the Respondents Notice of Appearance.  An application for review of those decisions was summarily dismissed by the Chairman under Rule 11(5) of the Employment Tribunal Rules and Procedure by a decision with reasons also dated 17 December.

The Facts

2	The Appellant was a long-standing employee of the Respondent, having commenced that employment in 1967.  He was a member of the Transport & General Workers Union, a union recognised by the Respondent, and was both the Site Convenor and Health & Safety Representative.

3	During 1998 the Respondent embarked on a redundancy exercise through the factory manager, Mr Fewings.  That exercise was carried out in such a way that had it resulted in the Appellants dismissal the Employment Tribunal would have found that dismissal to be unfair.  However, it did not produce that result.  Instead, having been identified for redundancy as a result of the exercise, following the appointment of Mr Solé as production director, the Appellant, together with two other employees, who were Applicants before the Employment Tribunal, but who withdrew their application, was offered and accepted the opportunity of alternative employment on a trial basis.  Subsequently, on 16 June 1999, the Respondent decided that the Appellant had not achieved the necessary standard in the alternative job and his employment was terminated.

The Complaint

4	The Appellant, who was represented by his full-time trade union official, Mr Stuart, complained that he was dismissed for Trade Union activities, an automatically unfair reason under Section 152 of the Trade Union & Labour Relations Consolidation Act 1992, alternatively that his dismissal was unfair under Section 98 of the Employment Rights Act 1996.  The Respondent resisted the complaint, contending that the reason for dismissal was a potentially fair reason, that is redundancy and that the Respondent had acted reasonably under Section 98(4).

The Procedural Decision

5	By a Notice of hearing dated 22 October 1999, the parties were directed to agree a bundle of documents and to exchange Witness statements not less than 7 days before the hearing fixed for 18 November.  The Respondent wholly failed to comply with that order.  They turned up on 18 November and then produced Witness Statements for all but one of their witnesses and a bundle of documents.  Mr Stuart applied for an order under Rule 13(1)(e) striking out the Notice of Appearance.  The Employment Tribunal declined to make that draconian order on the grounds that the Appellant’s representative had made no attempt to obtain the Witness Statements or documents from the Respondents and had failed to agree a bundle in accordance with the Employment Tribunal’s direction.

The Substantive Decision

6	The Employment Tribunal found the reason for the Appellant’s dismissal was not connected with his Trade Union activities.  A point with which we shall deal later concerns the Employment Tribunal’s finding as to whether or not the Respondent had a potentially fair reason for dismissal.  At all events the Employment Tribunal’s decision proceeded on the basis that the Respondent did establish such a reason and then went on to consider the question raised by Section 98(4) of the Act.  They looked carefully at the background including the unfair redundancy procedure originally carried out by Mr Fewings, but concluded that the eventual dismissal was fair.  They accepted evidence given by a Mr Gofton the production manager that the reason why the Appellant failed his trial in the new job was that he was inflexible and unable or willing to adapt to the new position.   They also noted that the two other trialists, originally Applicants before the Employment Tribunal whom they described as also being “trade union officials”, passed their trials and could have remained with the Respondent had they wished to do so.  In fact they left the employment.

The Appeal

7	In a detailed skeleton argument supporting his notice of Appeal Mr Thomas takes a number of points.  However, this morning he is represented by Miss Stacey under the ELAAS pro bono scheme to whom we are indebted for the clarity and precision of her submissions.  She takes three points; first, she submits that the Employment Tribunal’s substantive decision does not show that the employer had established a potentially fair reason for dismissal.  In developing that submission she submits that although there may originally have been a redundancy situation, what led to the Appellants dismissal was the Respondents view that he had failed to measure up in the alternative post.  In these circumstances in the absence of any express finding by the Employment Tribunal she submits that it is unclear whether the Employment Tribunal proceeded to the question under Section 98(4) of the Act on the basis of a potentially fair reason of redundancy capability or even conduct.  We cannot accept that submission.  It seems to us clear that it was the Respondent’s case as expressed in the Notice of Appearance, their reason for dismissal was redundancy.  Conversely it was the Appellants primary case that reason for dismissal related to his trade union activities.  

8	The Employment Tribunal expressly rejected the Appellants case.  We think implicitly that they accepted the Respondents case that the reason was redundancy, but further we think that was a permissible finding.  The Applicant’s original position was redundant in the true statutory meaning of the word; there had been a diminution in the requirement for employees to carry out work of the kind for which the Appellant was originally employed.  Rather than dismiss him at that stage the Respondent gave him the opportunity to try out an alternative job.  That, in the Respondents view, he failed to achieve the necessary standard in that alternative job leads to considerations at the Section 98(4) stage.  However, for the purpose of determining the reason for dismissal we are quite satisfied that there was no break in the chain of causation between the original identification of the Respondent for redundancy and his eventual dismissal.  

9	Secondly, she submits that there was no evidence to support a finding that all three original Applicants were trade union convenors.  That picks up a point in the Appellant’s Original Notice of Appeal and skeleton argument.  Quite simply that was not the finding of the Employment Tribunal.  At paragraph 11 of their substantive decision reasons they refer to the other two Applicants as also being trade union officials.  We have been told that both those Applicants were what was described as group representatives.  The Respondent operated a three-shift system.  The other two Applicants were on different shifts from the Appellant who was the site convenor.  Their task as group representative was to feed back information from management to other workers on their shift and also to liase with the Appellant as convenor.  In these circumstances we think that there was evidence to support the general finding that they were trade union officials.  

10	Miss Stacey makes a further point on the Employment Tribunal’s findings of fact.  She complains that during the course of the hearing on 18 November, Mr Gofton mentioned some computer notes which he had generated on the Appellant’s performance in his alternative job.  It seems that whether on application by the Respondent or by the Tribunal or its own motion,  Mr Gofton was permitted to obtain those computer notes during the short adjournment and they were then admitted in evidence without objection by Mr Stuart.  Those notes contained comments by others about the Appellant’s performance in his alternative job.  We accept that that is hearsay evidence, but it is well established as a matter of practice that Employment Tribunals do receive hearsay evidence particularly in circumstances such as this and accordingly we can see no ground for appeal arising out of the admission of that evidence. 

11	The third point concerns an allegation of bias or appearance of bias on the part of the Tribunal and in particular the Chairman.  On examination the complaints here are principally directed to the Appellant’s own representative Mr Stuart.  First there is a complaint that the Tribunal refused to strike out the Notice of appearance on the basis of non-compliance with the earlier directions given by the Tribunal in the Notice of hearing on the part of the Respondent.  It seems to us that that was an exercise of discretion by the Tribunal which cannot be said to have exceeded permissible bounds.  The real problem and the real substance of the Appellant’s complaint before us is that Mr Stuart did not ask for an adjournment once the Respondent was permitted to take part in the proceedings so that the Appellant’s position could be considered in the light of the Witness statements and documents then disclosed by the Respondent.  That is not a matter of criticism, it seems to us, to be directed to the Tribunal rather to the Appellants representative.  

11	He makes further complaint that he was not able to get across his case when he came to give evidence after the Respondents witnesses had given their evidence.  In particular, that his representative did not ask sufficient questions to supplement his witness statement.  Again we can see no basis for complaint here.  It seems to us that it was for Mr Stuart to advance the Appellants case.  There is no indication before us that he was prevented from doing so, if he did not enlarge it sufficiently, that is a complaint against him and not against the Tribunal.

12	Finally it is said that the Appellant was ambushed by the documents produced at the last moment by the Respondent.  That may or may not be the case, however, the remedy was for Mr Stuart to apply for an adjournment so as to consider those documents rather than to proceed with the hearing.  He did not do so.  His failure to do so cannot be laid at the door of the Employment Tribunal.  

13	Accordingly having considered each of the points that are advanced in support of this appeal, we have concluded that they disclose no arguable point of law and consequently the appeal must be dismissed at this preliminary hearing stage.