Appeal No.	 EAT/426/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 May 2001

Before
THE HONOURABLE MR JUSTICE CHARLES
MR J R CROSBY
MR R THOMSON 

HAMPSHIRE FIRE & RESCUE SERVICE	APPELLANT

MR R A CARRINGTON & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

	APPEARANCES

For the Appellant	MISS N KHALIQUE
Instructed by 
Messrs Paris & Co
Solicitors
The Marble Lodge
Cocksparrow Street
Warwick
CV34 4ED	

MR JUSTICE CHARLES

1.	We have before us today Applications by way of Preliminary Hearing and I shall deal firstly with the Preliminary Hearing in respect of the substantive decision.  That Appeal is by the Hampshire Fire and Rescue Service against a decision of an Employment Tribunal sitting at Southampton.  The Extended Reasons for which were sent to the parties on 6 February 2001.  That hearing took place over 5 days, 2 in November and 3 in January.  

2.	The unanimous decision of the Tribunal was that the complaints of the Applicants under Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 are well founded and it declared accordingly. It also adjourned the issue of remedy to Thursday and Friday 17 and 18 May.

3.	In the original Notice of Appeal, the main ground of appeal is that the Tribunal erred in law in failing to apply a proper distinction between purpose and effect.  That ground is included in a draft amended Notice of Appeal which was put before us today in paragraph 6(a) and (b) (I think) of the amended Notice of Appeal.  The proposed amended Notice of Appeal seeks to add by sub paragraph (c) -(f), allegations of perversity and failure to give any or adequate consideration to the weight of evidence.

4.	We confess that when we read these papers before coming into Court (and we add that at that time we did not have the benefit of skeleton argument put in on behalf of the Appellant which had been lodged but had not got to us) we were of the preliminary view that this was an Appeal essentially seeking to challenge findings of fact made by the Employment Tribunal and that the points that could be made, and were made, by reference to paragraph 16 of the Extended Reasons and in particular the sentence therein in the following terms:

“In the case before us the purpose and effect are really the same.”

to found submissions that is was reasonably arguable that the Employment Tribunal had not directed themselves properly to the distinction between purpose and effect were submissions that were going to fail because, it seemed to us at that stage that you could read between the lines in paragraph 16 and reach a conclusion that what the Employment Tribunal were actually finding was that the employers were not genuinely seeking to investigate the manner in which witness statements had been obtained and the participation that the three Applicants had taken in the investigation.

5.	However, having had the benefit of argument, it seems to us, that that first ground of appeal that the Employment Tribunal failed to apply a proper distinction between purpose and effect does raise points that are reasonably arguable in particular when one looks at the sequence of events.  

6.	In respect of Messrs Ash and Carrington an overview of that sequence, as we understand it from the Extended Reasons and the submissions made to us, is that initially (i.e. in April 1999) they withdrew from the investigation on a consensual basis or at least on the basis that the employers and the union agreed that they should do so (see paragraphs 7(h) of the Extended Reasons). Whether they individually agreed may be a matter of dispute but that was the manner in which they ceased to take part in the investigation and they were not then suspended by the employers.

7.	As is apparent from paragraphs 7(i) and 14 of the Extended Reasons Mr Ash wrote in June 1999ad written asking that he (and one assumes also Mr Carrington) wanted to involve themselves again in the investigation.  That triggered their suspension and the formal investigation into the part that had already been played by them in the investigation into allegations of harassment.  

8.	We were told that there was uncontested evidence before the Employment Tribunal that at that stage Mr Paine was still of the view that Messrs Ash and Carrington should not take part in the investigation.  That point is not referred to in the Extended Reasons.

9.	 Against that background and sequence of events it seems to us that there is an argument particularly in respect of Messrs Ash and Carrington that in the Extended Reasons the Employment Tribunal either demonstrate that they have not taken properly into account the distinction between purpose and effect, or have not properly explained their reasoning as to why one side won and the other side lost.

10.	Mr Green is in a different position in that he was actually suspended on day 1.  However, it seems to us that if there is a flaw in the approach of the Employment Tribunal in their consideration of the distinction between purpose and effect it is an unrealistic exercise at this stage to divide up Mr Green and Messrs Ash and Carrington.

11.	Accordingly on the first ground we are of the view there are reasonably arguable points in respect of all three Applicants that should proceed to a full hearing.

12.	An additional point raised during the course of submission flows from a finding in paragraph 9 of the Extended Reasons effectively repeated at the end of paragraph 16 that all parties to the harassment investigation whether they were witnesses harassers or harassed (and I should say alleged harassers or alleged harassees if that is the correct way of describing them) had the benefit of  union representation available to them.

13.	Paragraph 9 also contains a finding as to custom and practice which we understand to be a custom and practice that in the case of a similar investigation (i.e. one into harassment or into matters of equivalent seriousness) local union representatives would take part and that participation would include assisting witnesses rather than those who at that stage have been accused of serious matters.  

14.	We were told today that there was no evidence upon which the Employment Tribunal could have reached that conclusion on custom and practice.  We were further told that in fact the parties to the harassment investigation did not have union representation. 

15.	 It seems to us reasonably arguable there is a linkage between (i) the overall conclusion reached and (ii) the effective conclusion in paragraph 9 that it would be perfectly normal for Messrs Ash, Carrington and Green to participate at the initial stage when witness statements were taken based on custom and practice as effectively confirmed by the finding that union assistance was available and thus that if those findings on custom and practice and union assistance are flawed because there was no evidence to support them it is reasonably arguable that such flaws flow through and infect the remainder of the reasoning.

16.	The assertions referred to above on the evidence (i.e. as to there being undisputed evidence as to Mr Paine’s view that Messrs Ash and Carrington should not take part in the investigation which continued in June 1999, and the lack of evidence on custom and practice and union assistance) also link to the additional grounds of appeal now advanced as to there being no evidence to support particular findings, and that having regard to uncontested evidence looked at the context of the evidence as a whole the conclusion was perverse.  

17.	It is notoriously difficult for an Appellant to succeed on the grounds of perversity or lack of any evidence but in our judgment the assertions referred to earlier provide the bases of points that are reasonably arguable under these heads and we give leave to amend the Notice of Appeal to include those grounds.  We will also give leave to amend to add what can be described as a “Meek ground” which is often put as an alternative to those grounds.

18.	In giving that leave to amend we do so expressly on the basis that the Applicants (and Respondents to the appeal) who are not represented before us have liberty to apply to discharge such amendments which are out of time.  We would not encourage them to make that application at a separate Interlocutory Hearing.  It is something that they can argue when the Appeal comes on for a full hearing. However, if they are advised that it is appropriate to make an Interlocutory application that is a matter for them.  

19.	That leaves the issue as to whether or not we should at this stage direct that the Chairman provide notes of evidence.  We have considered whether in this case it would be appropriate for there to be an exchange between the parties in an attempt to identify whether or not agreement can be reached as to whether uncontradicted evidence was given on points I have referred to, or whether there was no evidence given upon which findings could be made.  Our experience in adopting that course, which seems eminently practical and sensible at this stage, is that it usually results in greater time, trouble and effort being expended rather than simply obtaining the Chairman’s notes.  We therefore concluded that in this case it is appropriate for us to direct that the Chairman do produce notes of evidence and there is a list of the witnesses whose evidence is requested and we will make that direction.  Our understanding is that those witnesses cover both points I have referred to in this judgment.  If not, we will consider and potentially add to that list on hearing further submissions.

20.	I will direct that this is a Category B case and will give it a time estimate of a day.  But if the Chairman’s notes are lengthy we would invite the parties to consider making an application to extend that to one and a half days and if such application made on the basis that there is voluminous documentation we give the indication that the Registrar should increase the time estimate.  We have in mind the great difficulties in this Tribunal being reconstituted if an appeal goes over its estimate which can result in a long delay before the appeal can be finally disposed of.