Appeal No. EAT/532/90

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 19 October 1992

	Before

	THE HONOURABLE MR JUSTICE KNOX

	MS S R CORBY

	MR J H GALBRAITH CB

MR J ATKINSON	APPELLANT

THORN LIGHTING LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR B HENRY
(Of Counsel)
Mark Gittins & Co
111-113 Plungington Road
Preston
Lancs PR1 7UE

For the Respondents	MR J CAVANAGH
(Of Counsel)
Engineering Employers
Federation 
Broadway House
Tothill Street
London SW1H 9JQ

	MR JUSTICE KNOX:  We have been asked by the Appellant Mr Atkinson for leave to amend the Notice of Appeal.   The Notice of Appeal, in its original form had only one ground, namely that the Industrial Tribunal failed to take due account of the codes of practice bearing in mind the short time between the written warning being handed to Mr Atkinson and his ultimate dismissal.  It is proposed to delete that and substitute two other grounds which shortly stated are:

(1)	that the Industrial Tribunal did not pay sufficient or proper regard to the fact that the final written warning that Mr Atkinson was given before he was dismissed was the subject of an appeal by him which was overtaken by events and was never fully heard, the warning being given orally on 13th and in writing on 14th, and his dismissal being initiated on 15th, although it did not finally take effect until a few days later and

(2)	that the Industrial Tribunal failed to pay regard to the alleged facts that there was thereby a breach of contract in that Mr Atkinson had a contractual right to pursue his appeal against his final written warning.

	In essence, our reason for giving the leave is not that we do not recognise the existence of a substantial body of authority in favour of the proposition that it is not right that parties should advance new arguments before this Appeal Tribunal that have not been advanced in the Industrial Tribunal; there is a substantial body of such authority and we were referred to several of them by Mr Cavanagh notably the SECRETARY OF STATE FOR EMPLOYMENT v NEWCASTLE UPON TYNE CITY COUNCIL [1980] ICR 407.

	The reason for our granting the leave to amend the Notice of Appeal is that we are not satisfied that this is really sufficiently a new point to warrant the application of that principle whose validity we do not seek to impugn.  The point arises most clearly from the fact that in the alternative it was submitted, and we say nothing at this stage about whether that submission may or may not succeed, that the issue particularly with regard to the non-prosecution of the appeal from the final written warning was taken into consideration by the Industrial Tribunal because undoubtedly there was evidence before the Industrial Tribunal that the appeal from the final written warning did not run its full course and in those circumstances it seems to us that this is not enough of a new point for us to exclude it under the well established practice.

	The other aspect, when again we would not seek to impugn the general rule, is that it was submitted to us with some force, that the question of contractual breach is one which might lead to the adducing of further evidence and we certainly do not desire to suggest that a new point which may lead to further evidence being called is something which this Tribunal should not be very slow indeed to permit but here, the new evidence really revolves round the disciplinary procedure which strictly was not in fact in front of the Industrial Tribunal as a piece of paper.  On the other hand what the Industrial Tribunal undoubtedly had was clear evidence that the employers, very properly, considered that there was a procedure which allowed for an appeal from the final written warning.  That was agreed on all sides and this aspect is something which in our view was a factor which the Industrial Tribunal may well have taken into account.

	Given all the amalgam of factors which an Industrial Tribunal has to consider under S.57(3) of the Employment Protection (Consolidation) Act 1978 it seems to us that it would be over strict to exclude the existence of the disciplinary procedure that undoubtedly did exist and which undoubtedly the employers did seek to follow and we are not satisfied that the difference between one which is actually binding as a matter of contract and one which is treated as operative as a matter of practice by the employer, is sufficient for us to refuse the proposed leave.  

	Accordingly we give leave to make the proposed amendments and deletion.