Appeal No. EAT/324/01

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT THE ROYAL COURTS OF JUSTICE,
STRAND, LONDON, WC2A 2LL

	At the Tribunal
	On 7 September 2001

Before
MR RECORDER LANGSTAFF QC
MR B GIBBS
MISS D WHITTINGHAM

MR G J MATTHEWS	APPELLANT

TESCO STORES LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	Mr G J Matthews
(Father)	

MR RECORDER LANGSTAFF QC

1	This is an appeal from the Employment Tribunal sitting at Shrewsbury whose Reasons were delivered on 31 January of this year.  The appeal is largely on procedural grounds. However the context is important - I shall set it out.  

2	The employee claimed that on 8 May of this year, he was constructively dismissed by his employer.  He had been subject to harassment since August 1998, some of which on any view, was extreme.  Conduct, which on any view, was appalling, was committed against him.  The Employment Tribunal correctly noted that in order to claim constructive dismissal successfully, required the employee to show a breach of contract.  The breach of contract which was alleged before them, so they record at paragraph 4 of their Decision, was not that the events themselves, that is the harassment, constituted a breach of contract by the Respondent, but rather that the Respondent failed to investigate his grievance about these matters properly.  That is what was alleged to amount to a breach of contract on Tesco’s part.  

3	The employee had submitted a grievance; it was upheld in part.  The Tribunal dealt with the suggestions about the way in which that grievance had been heard in these terms.  At paragraph 8 the Tribunal said:
“The applicant’s suggestion that the respondent did not investigate his grievance thoroughly and take it seriously is a travesty of the truth.”

The Tribunal went on to say that:
“There was no breach of contract by the respondent in their handling of the grievance raised by the applicant”
 and added that:
“We are satisfied that he did have a contractual right to a fair, thorough and bona fide investigation of his grievance.  That right……”
they say:
“was not infringed by the respondent”

4	The Tribunal found that the prompt for resigning when he did was given by the fact that it came to the employee’s knowledge that a video had been made of a tobacco kiosk within the store.  The keys of the kiosk had gone missing.  A security video was examined and the Tribunal say the security officer viewed the videotape and made a written record of events.  They added:
“The applicant’s suggestion that the respondent was spying on him in order to find some reason for which to dismiss him is fanciful paranoia if he believes it , or if he does not believe it, is disingenuous.  Either way, the Tribunal concluded that it had no foundation in fact.”

5	That is the context in which this appeal is placed.  The Grounds of Appeal, drafted by the employee’s father, who has appeared before us today and advanced his appeal with care and moderation, for which we are grateful.  Essentially he alleges that documents, witness statements and relevant material was disclosed to him and to his son, the Appellant, at the last minute when it should have been disclosed much earlier and that the failure to give the documents in time amounted to an injustice which prevented him advancing his son’s case properly and fully.  I hope that that summary of the Notice of Appeal is sufficient to cover grounds 1, 2 and 6.  

6	In addition he complains that the Respondent changed a witness statement to fit his lies, actually in front of the Tribunal; that Tesco’s had the advantage of having as many witnesses as they liked, whereas the Appellant was refused Witness Orders which he sought; and that it had been proved that the solicitor appearing on behalf of Tesco’s had lied at the Tribunal from the very first moment that he addressed them.  

7	Those are the grounds of appeal then which we have to consider.  They are all procedural, they do not deal with the substance of the background, they do not deal with whether or not the constructive dismissal was based upon the harassment or not.  The Chairman was asked by this Tribunal to address the points raised in the Notice of Appeal.  He said that so far as documents and witness statements were concerned, the Tribunal had not adopted the practice of requiring disclosure without order and had made no order.  Nor had there been any direction as to the exchange of witness statements.  Mr Matthews was under the impression that the rules required fourteen days advanced disclosure of documents and witness statements.  

8	In the course of the hearing we asked Mr Matthews to note the terms of the Employment Tribunal’s (Constitution) Regulations 1993 and the 1993 Rules, which are Scheduled to those Regulations, which make it plain that there is no overall rule that documents and witness statements should be disclosed either fourteen days, or indeed at any specific time prior to a hearing, at least not in the Rules which were then applicable to the hearing.  

9	That, however, does not dispose of the point, because in essence Mr Matthews’ complaint is that he saw a mass of material which he was not well equipped to take on board there and then, and which his son, who suffers from dyslexia, was equally not able to read at any speed.  He told the Tribunal that this was the situation.  The Chairman notes that Mr Matthews elected however, not to ask for more time to consider the documents, that he was invited to raise the matter again if at any point he felt himself disadvantaged, and that he did not subsequently ask for further time.  

10	Today Mr Matthews has told us that something to that effect was indeed said.  Moreover, the hearing took place over two days.  Much of the documentary material was available to be studied on the evening of the first day before the second.  On the morning of the second day the Chairman reported that Mr Matthews referred to a number of pages in the bundle and complained that he had not seen those until he had received the bundle the previous day, and maintained that that was unfair.  The Chairman says that he asked whether that posed any particular problem to him, and whether he needed time.  The response was “There is no particular problem, I would like to continue”, and the Chairman observes that the late disclosure of documents by the Respondent was not mentioned after that.  Mr Matthews before us today has agreed that something to that effect was also said.  

11	The injustice in dealing with documents which have not been seen and which need to be studied, is not that the documents exist, but is that an advocate or party may not have sufficient time to study the documents to see what points arise on them.  Usually, an application for an adjournment in such circumstances will be granted.  Mr Matthews was offered more time and did not take it.  He frankly said to us that perhaps, looking back on it, he should have done, but any unfairness that there was in the late delivery of witness statements and documents was, in our view, sufficiently remedied by the procedures the Chairman describes.  This means that there was no error of law in the Tribunal having continued to hear the case, despite what happened.  Indeed, the Tribunal could hardly do otherwise since Mr Matthews had indicated to them that he wanted to proceed with the hearing.  There were, further, good reasons for that because of the travel difficulties that he and his son had in attending.  

12	So far as the change of a witness statement is concerned, Mr Matthews conceded before us that that was more likely to be to his advantage than disadvantage because it took place openly in front of the Tribunal; there is therefore no force in that ground.

13	So far as the Witness Orders are concerned, we have considered whether the Tribunal wrongly exercised its discretion to grant or withhold Witness Orders - those Orders are not technically part of the Decision, and so we would have had to have been persuaded, in any event, that we had jurisdiction to deal with a complaint about them.  But it seems to us that the Chairman was not at fault in failing or refusing to make those Orders on the basis of the information that he had given to him by Mr Matthews.  That information did not, in our view, clearly identify that the witnesses would be able to give evidence which was going to go to the heart of the discussion between the parties before the Tribunal.  It would not, in our view, have been relevant evidence.  

14	So far as the other ground of appeal is concerned: that Mr Thompson had been proved to have lied at the Tribunal in the first statement that he had made.  This, it seems to us, is not a procedural ground for holding that what happened at the Tribunal was unfair.  

15	It follows that none of the grounds which have been raised by Mr Matthews raise any arguable point of law.  This Tribunal can only interfere with the Decision of a Tribunal if that Tribunal is at fault in the sense of making an error of law.  Although we have very considerable sympathy with the Appellant, and with what he seems to have suffered during the time that he was employed by Tesco’s, we regret that we cannot see that there is any proper basis for allowing this appeal to proceed further, and it must therefore be dismissed.