Appeal No.	 EAT/876/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 December 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MR B GIBBS
MR T C THOMAS CBE

J L DISTRIBUTION SERVICES LTD	APPELLANTS

MR J T ARMITAGE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellants	MR S BRANNIGAN
(of Counsel)
Messrs McBridge Wilson & Co
The Courtyard
Queen's House
55/56 Lincoln's Inns Fields
London
WC2A 3LJ	

	MR JUSTICE LINDSAY (PRESIDENT):		We have before us by way of a preliminary hearing the appeal of J L Distribution Services Ltd in the matter of Mr J T Armitage v J L Distribution Services Ltd. 

1.	On 24th June 1999 an IT1 was lodged by Mr Armitage claiming that he had been employed from 1st February 1996 to 6th May 1999. Although in Box 1 of the IT1 he does not complete the box, it was taken to be a claim for unfair dismissal. He says in Box 11 that 

“On 30th April 1999 he was told that he was being suspended for allegedly disclosing confidential information. Nothing was put in writing. Later he was paid for the suspension period.
On 6th May he was told in writing that he was being summarily dismissed for gross misconduct as from that date. At no time were any disciplinary proceedings held and the Applicant was never given an opportunity to state his case. He denied any misconduct.
The Applicant claims that no proper procedure used in respect of his dismissal and that his dismissal was unfair in all the circumstances.”

2.	On 9th September 1999 there was an IT3 and that said, amongst other things, that Mr Armitage was discovered by the Company to have been:

“denigrating the service provided by the Company, and informing the company’s clients of confidential [material], concerning the Company’s operations and making false allegations against another officer of the company.”

3.	On 7th February 2000 there was hearing before the Employment Tribunal at Bury St Edmunds, under the chairmanship of Mr J Rosser. On 29th February there were, I think, summary reasons sent to the parties. On 2nd June 2000 extended reasons were sent to the parties. The unanimous decision of the tribunal was that “the applicant was unfairly dismissed” and an award was made in his favour of over £12,000. The total award in fact was £15,075.

4.	On 11th July 2000 there was a Notice of Appeal. Although the Notice of Appeal splits its grounds into four parts, all of them truly relate to the Employment Tribunal’s exclusion of two written statements, one by a Mr Murdoch and one by Mr Stagg. Mr Brannigan, who has appeared today for the appellants, is content to argue the matter solely on the basis of the Murdoch witness statement, which seems to us a realistic approach.

5.	The Notice of Appeal says, à propos Mr Murdoch, this:

“Mr Robert James Murdoch had been due to fly to Scotland to Stansted Airport, Essex on the morning of the tribunal hearing. At approximately 3 a.m. on the morning of the tribunal hearing Stansted Airport was closed as a result of a hijacked Afghanistan airline being diverted to the airport. Mr Murdoch’s flight from Scotland was consequently cancelled/delayed and he was unable to attend to give oral evidence before the tribunal.”

	The extended reasons say in their paragraph 1:

“… We were also asked to consider statements made by a Mr Stagg and a Mr Murdoch on behalf of the respondents. These statements were challenged and objected to by the applicant. The Tribunal took the view that as the applicant would have no opportunity to cross examine these witnesses who were not to be called, the statements should not be admitted in evidence.”

6.	It might be thought that to strike out evidence or to shut out evidence altogether if the circumstances à propos Mr Murdoch were true, it would be a somewhat extreme step. The tribunal could have received the statement and considered what weight they ought to give it in the absence of cross-examination or, alternatively, and it is hard not to suspect that this would be the working alternative, to have arranged an adjournment simply for the cross-examination of the Mr Murdoch so as know what weight could properly be attached to what he was saying.

7.	It seemed to us not unimportant in relation to today’s application to find out from the Chairman, as best we could, whether the Afghanistan incident had been brought to the Chairman’s notice on the day. Mr Brannigan, who was not there, has taken instruction from his instructing solicitor, who also was not there on the day, because the appellants on that appeared by Mr Collins, of Counsel. But Mr Brannigan’s solicitor, so we are told by Mr Brannigan, on the day of the Employment Tribunal hearing got in contact with Mr Collins, counsel who was going to appear, to tell him of the Afghanistan delay and the solicitor instructed Mr Collins to draw that point to the tribunal’s attention. After the hearing, hearing its result, Mr Brannigan’s solicitor was assured by counsel that the point had indeed been drawn to the tribunal’s attention. 

8.	There had been earlier enquiries of the Employment Tribunal as to the position as at the date of the hearing. On 21st July 2000 the Employment Appeal Tribunal had written to the Bury St Edmunds Employment Tribunal and the last paragraph of that letter reads:

“We would be grateful to receive any comments the Chairman, Mr J Rosser may wish to make on the Notice of Appeal.”

	That was obviously in order to find out what the position was in relation, especially, to the Afghanistan incident. The copy that the EAT has of that letter has written on it as follows:

“File Note
I phoned BSE ET and told them that Chairman’s comments required on paras 6(i) and 6(ii) only."
R.N.
25.7.00”

	Nothing was heard and on 1st September 2000 the EAT wrote again to the Bury St Edmunds and said:

“I would be grateful to receive the learned Chairman’s comments on paragraphs 6(i) & 6(ii) of the Notice of Appeal at your earliest convenience.”

	Again, nothing further was heard. Accordingly, after I had seen the papers on 5th December 2000, a fax was sent through to Mr Rosser that said:

“The President has directed that I write to ask whether you would provide comments on the following points as a matter of urgency.
Whether you were told, when considering whether or not to admit Mr R J Murdoch’s written statement, that:
(1)	Mr R J Murdoch had planned to fly down for the case
(2)	that his plane had been dealt with as in paragraph 6(ii) of the Notice of Appeal
(3)	and whether you were of the view that Mr R J Murdoch’s written statement was material or immaterial to the issues in the case.
I would be most grateful if you would fax a written response as soon as possible. …”

9.	It had proved impossible to get earlier comment from Mr Rosser, but we have a note of the 5th December 2000, at 10:30am, from Mr Newton here at the EAT:

“I Phoned Bury St Edmunds Employment Tribunal and was informed that Mr J Rosser no long sat on Employment Tribunals.
…”

	then there were some further details about how to possibly get in touch with him and that led to nothing for the time being. Ultimately, this morning, at 10:15am, according to a file note put in front of us:

“Phone call from Mr Rosser he stated:
That regarding the reasons for the absence of the Respondent’s witness he did not recall the story of Stansted of being closed – but he went on to say that he did not have a reliable memory on that point and could not say definitely either way.
Regarding the relevance of the evidence that Mr Murdoch would have given, Mr Rosser stated that having read the witness statement he believed that if the witness would have attended it would have made no difference to the decision whatsoever. He said that the Respondent’s defence was lacking in credibility.”

	So that is the position.

10.	If, and we must emphasise that word, Mr Rosser was told of Mr Murdoch’s attempt to give evidence as alleged in the Notice of Appeal, and if that was credibly laid before him, it may arguably have been an error of law to exclude his evidence altogether without giving the opportunity for its being tested on some other occasion or, alternatively, being received and having its weight duly adjusted to account for the fact that it would not be tested. And so, it seems to us, there is at least an arguable point to go to a full hearing. But beyond that, it seems to us that the Employment Tribunal arguably, and again we stress we are only concerned with what is arguable at this stage, fell into the classic error of investigating whether it, on the evidence, would have believed and would have acted on the belief that Mr Armitage was being disloyal to the company or to its customers such as to have justified his summary dismissal. The tribunal criticises the company for relying on hearsay and non-documentary evidence. Thus, in paragraph 3, the tribunal says:

“… It is alleged by Mr Law [he is an officer of the appellant company] that after a relatively short period the applicant changed his attitude and became unhelpful and obstructed and hindered the running of the Company. He stated that he received many complaints from various customers about Mr Armitage and his refusal to help them and his general attitude. Mr Law accepts that there is no documentary evidence of any of these matters. The Tribunal found his evidence wholly unsatisfactory and vague and we did not accept it. Mr Law stated that it came to his notice through a Mr David Sawyer, a Director of the respondent Company, that the applicant had been making derogatory remarks about the respondent with whom he was employed. He was apparently belittling the Company. Again, there was no documentary evidence of any of these matters. The evidence put to us was entirely hearsay, vague, unsatisfactory and lacking credibility.”

	But where customers claim in that way, how realistic is it to expect them to put the complaint into writing? Is it not somewhat harsh to criticise the absence of other than hearsay evidence when the evidence which the employer did wish to adduce was denied to the employer by the Afghanistan incident. The tribunal says:

“4.	On 26 April 1999 Mr Law said that he was instructed to suspend the applicant without pay following allegations that the applicant had been disclosing confidential information concerning the respondent to its competitors. The only evidence produced to the Tribunal in relation to this was a fax message from a Mr Murdoch in which it was alleged that Mr John Armitage had been conveying information to Mr Murdoch’s Company about the activities of a competitor. No details were provided by the respondents about this allegation which was not only vague but also it is quite clear to the Tribunal that Mr Armitage neither had the opportunity nor any motive to disclose such details. We do not accept that this was a genuine complaint by a customer, but even if it had been, it is quite clear it was without any foundation whatever. The allegations were not in any real sense put to Mr Armitage. There was effectively no disciplinary procedure used and Mr Armitage was dismissed.”

	Saying it was not clear to the tribunal  may be an indication of error of law. The question the tribunal should have been considering was whether the company had material before it which could not unreasonably lead the company to a view justifying summary dismissal. As I mentioned, it is hard to criticise the company as to the weakness of its evidence when its best evidence, as it would have been, if the Notice of Appeal had been true, was from a person who had sought to give evidence at the tribunal but who was impeded through no fault of his own. The tribunal said “We do not accept that this was a genuine complaint by a customer” but it should have been asking whether the company could truly regard it as a complaint by a customer. The language used by the Employment Tribunal does not clearly indicate that the tribunal was asking itself whether it was satisfied that there was no genuine complaint from a customer. The matter is somewhat ambiguous. At a later stage the tribunal’s ruling appears to suggest that they had asked themselves the right question, they say in the paragraph 7:

“… We have somewhat unusually found that there was no conduct on the part of the Mr Armitage that could have given rise to any disciplinary proceedings and that the allegations against him were wholly unfounded and designed solely to give an ostensible reason for his dismissal. …”

	But how just that was as a conclusion when what would have been, as it seems to us, a material witness, Mr Murdoch, had had his evidence excluded through no fault of his own is a matter that we think does justify a full hearing.

11.	We allow the Notice of Appeal unamended to go to a full hearing. Mr Rosser is to be asked afresh more formally than has so far been done to confirm what the position was in relation to his recollection of the tribunal being told of Mr Murdoch’s attempt to fly down to give evidence in the case and the manner in which that wish was denied to him. Also Mr Rosser is again to be asked more formally as to whether the tribunal was of the view, one way or another, as to the materiality of Mr Murdoch’s written statement. We have, of course, seen Mr Murdoch’s statement. It appears to say that Mr Murdoch had reason to believe that Mr Armitage was leaking confidential information from the company. It is hard to see how it could be regarded as completely immaterial, but that is a question that is to be put to Mr Rosser. We will have to ask Mr Brannigan about what need, if any, there is at this stage for Chairman’s notes. It might be better to leave the question of Chairman’s notes until after Mr Rosser’s observations have been received on the matters that I have mentioned. We say only at this stage, awaiting Mr Brannigan on that point, that the whole Notice of Appeal can go to a full hearing.

Following discussions
[12.	Mr Brannigan is willing to await Mr Rosser’s observations. We also give leave to amend the Notice of Appeal within seven days to add what he might call the ‘substitution point’.]