Appeal No. EAT/1138/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 February 2001

Before
MR RECORDER LANGSTAFF QC
MR D J JENKINS MBE
MR A E R MANNERS

MR K IRO	APPELLANT

GRANBY TOXTETH DEVELOPMENT TRUST LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MS LOUISE BROOKES
(of Counsel)
Appearing under the 
Employment Law Appeal
Advice Scheme 	

MR RECORDER LANGSTAFF QC

1	This matter comes before us by way of preliminary hearing.  It is an appeal by Mr Iro, from a decision of the Liverpool Employment Tribunal, promulgated on 25 July last year.  

2	That Tribunal heard evidence and submissions for four days on an issue which, essentially, was the simple one of whether or not Mr Iro was properly summarily dismissed, in the sense that he was guilty of gross misconduct.  There was no issue before the Employment Tribunal that Mr Iro had, in fact, been dismissed from the position which he had hitherto occupied for the Respondents, as a General Manager.  

3	There is, equally, no issue that he was entitled to notice, although it appears that whatever the contract of employment may have contained, it was not specific as to a notice period; the Employment Tribunal determining that had they considered the issue, they would have decided that three months was the appropriate notice period for someone in a position with responsibilities and experience, as Mr Iro plainly had.  

4	The decision to dismiss Mr Iro was taken, according to the Employment Tribunal, because on 23 December 1998, Mr Iro signed Public Match Fund Certificates (PMFCs).  Before he did this, it was contended by the Respondents that he should have sought the express approval of Directors; he claimed that this had been given, the Respondents denied that it had.  

5	It is plain that put that way, the first issue was whether or not Mr Iro’s version of events was to be preferred over that given by those witnesses called for the Respondents, and in particular, Chief Ben Agwuna, who was another party to a telephone call in which, it was asserted, Mr Iro had been granted the permission to which he referred.  

6	The Tribunal dealt with the question as to who to believe, in the following paragraph - paragraph 12 on page 3 of their written Extended Reasons.:

“12…….we accept that [at] the meeting on 18th March 1999 Mr Iro expressly denied having signed the certificates.  It seemed to us that it was plain that Mr Mohammed and Mr Mallik were telling the truth about that meeting.  They, unlike Ms Lashley, had no “axe to grind” in relation to discussions on 22nd December and there would be no obvious reason for them to lie about what was said at that meeting.”

Mr Mohammed and Mr Mallik were two employees who were called by the Respondents to support their case and to contradict evidence which Mr Iro himself gave.  

7	Having reviewed their evidence, the Employment Tribunal continued at paragraph 13, in these words:

“13  In short, we preferred the evidence of Chief Ben Agwuna and Ms Lashley to that of Mr Iro in relation to any telephone conversations that took place on 22nd December.  We conclude that Mr Iro had received no consent or permission from any representative of the Trust before signing the PMFCs.”

They then continued to ask whether signing those documents, without such consent, amounted to gross misconduct, and having reviewed the material before them in relation to that, concluded that it was.  

8	The Employment Tribunal, therefore, came to the conclusion that on the material before them, they preferred the evidence of the Respondents; that that meant, on the balance of probabilities, they found that Mr Iro had acted in the way that the Respondents claimed that he had acted, and that therefore, given their conclusion as to the importance of conduct, the employer was entitled to treat the contract of employment of Mr Iro as discharged by his repudiatory conduct; in other words they were entitled, summarily, to dismiss him.  

In this appeal, it is argued by Ms Brookes, who appears under the ELAAS scheme, and for whose submissions we are very grateful, that there are two reasons why there may be a point which is worthy of consideration before the full hearing of this Tribunal.  

9	The first is a point which, strictly speaking, is not presently before us.  She wishes to amend, in principle (there being no wording yet formalised) to include grounds of appeal in relation to the Employment Tribunal’s failure to refer to, or secondly, to make findings in relation to, the contract of employment between the parties.  That there was a contract of employment is demonstrated, she says, by paragraph 2 of the Respondents’ Notice.  Plainly, there would have to be a contract of employment for Mr Iro to be an employee at all, but what is in particular focus is whether that employment contract was reduced to writing.  

10	In expanding upon this, she argued that such a contract might provide evidence that there was a disciplinary procedure which was incorporated into Mr Iro’s employment.  That would, if it were a typical disciplinary procedure, make provision for any complaint of misconduct by him to be investigated and considered by his employers, in a particular formalised manner, and it is of note that amongst his complaints about his employers before the Employment Tribunal, were his allegations that they had not told him what was being held against him, nor examined it properly.  

11	Moreover, the time that it might take for any disciplinary procedure, properly conducted to conclude, might, she said, result in his employment lasting for sufficiently long a period to give him rights to qualify to make a claim for unfair dismissal, under the Employment Rights Act 1996, whereas, because of the short term nature of his employment, as it turned out, he was limited to a claim for wrongful dismissal, a claim for breach of contract, and not under the Statute.  

12	She therefore applied to amend.  We have considered her application to amend on two bases:  first of all, we have to ask whether or not there was a reasonable opportunity for the point to be taken before the Tribunal below.  We have not heard any argument from the Respondents, as to whether if, had the point had been clearly taken below, there might have been a further investigation of the facts, which there was not.  But we were told by Ms Brookes, in answer to that point, that indeed the argument, or substance of it, was raised before the Employment Tribunal, even though it is not recorded as being dealt with, in terms, by their reasons.  

13	However, Mr Iro was represented by Counsel at a long hearing before the Employment Tribunal.  He is a man of some stature in the community, to which he has made reference in the documents before us; his employment was not in any menial capacity; he was a General Manager.  The reason given to us for the absence, in his Notice of Appeal, of any complaint of the nature which it is now sought on his behalf to pursue, is that there were problems over his representation, in particular, relating to the identity of the solicitor dealing with his case.  We have to exercise a discretion as to whether or not we think it appropriate to permit the amendment to be made, and we decline so to exercise our discretion.  

14	A further but separate reason for not exercising our discretion in Mr Iro’s favour, in respect of the amendment, is that it seems to us that it would be irrelevant to the issues which this Employment Tribunal had to determine, and which any Appeal Tribunal could determine, in reviewing that decision.  The issue was not what a disciplinary hearing or panel might conclude had happened, but whether as a matter of fact, it had occurred.  That was a decision which the Employment Tribunal set about making; it would not have mattered if the disciplinary body within the employer had come to any alternative conclusion.  Indeed, that was implicitly recognised by Ms Brookes in her arguing that the significance of the procedure was that it might have delayed matters, so as to give rise to a claim which Mr Iro, never actually sought, and never could pursue.  We do not think it right, in any event, to give leave to amend, to enable Mr Iro, retrospectively, to pursue a claim which has not, on the papers, been intimated before.  

15	Finally, we do not think it appropriate to grant leave to amend for an amendment which is formulated in such imprecise terms, for understandable reasons, as this amendment has been formulated, particularly since the best arguments that can be put forward for our acceding to it, are expressed very much in the language of “maybe”, might be”, and “possibility”, rather than there being any clear legal focus.  We think, therefore, that to permit such an amendment would be to allow optimism to triumph over realism.  

16	Turning to the substance of the appeal, the single point which Ms Brookes takes, is that credibility was vital; that the Employment Tribunal, as indicated by the passages which we have quoted, regarded the evidence of Mr Mallik and Mr Mohammed as of considerable importance; that there were documents before the Employment Tribunal, which are not presently before us, from which it could be seen that Mr Mallik and Mr Mohammed did indeed have an “axe to grind” against Mr Iro - contrary to that which the Employment Tribunal found - and that therefore, the Employment Tribunal have simply not dealt with a challenge to their credibility; and that that is of significant importance to their reasoning.  The consequence would be, inevitably, that the matter should be remitted to a fresh Tribunal for a re-hearing.  

17	We have to bear in mind that, although there is no explicit reference to such documents, by the Employment Tribunal, this Tribunal had Mr Iro’s case before them for no less than four days.  If the documents were of the importance, which we are told by Ms Brookes, on instructions, that they were, then we have no doubt that they would have been used to found questions in cross-examination for Mr Mallik and Mr Mohammed, both of whom were giving evidence contrary to Mr Iro’s interests.  Mr Iro himself was in a position to, and did give, evidence before the Employment Tribunal.  We have no doubt that if submissions were properly to be founded upon those documents, then they would have been made.  

18	The failure, if it is a failure, of the Employment Tribunal to record in their decision that they have had regard to points made against Mr Mallick and Mr Mohammed, in the course of cross-examination, may in retrospect, be regrettable, but it is perhaps inevitable, that in any case in which the evidence has taken as long as it did, that some matters are not referred to although they have been raised and may later, perhaps, assume an importance greater than they did on the earlier occasion.  An Employment Tribunal has, in its written reasons, to tell the losing party why it is, in essence, they have lost, and the winning party why it is that they have won.  They do not have to dot the ‘i’s and cross the ‘t’s in respect of every submission which is made to them.  

19	We do not think, taking the decision of the Employment Tribunal as a whole, that this decision falls short of the standard which we would expect from an Employment Tribunal.  It conveys, with commendable brevity, the reasons why it is the Tribunal prefer the evidence given by the Respondents to that given by the Appellant. Accordingly, we think that there is no arguable point that Ms Brooke can pray in aid here.  

20	We have, further gone on to consider whether there might be any argument as to whether or not the conduct complained of, was properly classified as “gross misconduct”.  This, we think, is not a matter with which this Tribunal can consider unless perversity is alleged.  It is not.  The Employment Tribunal considered the issue; they came to a conclusion which perhaps, some Employment Tribunals might not have come to, but it seems to us to be well within their remit to do so.  We cannot say that they were wrong; it is their decision, they made it, and on balance, we think they may well have been right to do so.  Therefore we cannot see that there is any arguable point in this appeal, and it must therefore be dismissed.  

Can we simply add, Ms Brookes, our gratitude to you for your presentation of the appeal.  You will know, of course, the importance that we attach to the ELAAS scheme.