Appeal No.	 EAT/1382/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 July 1997

Before
HIS HONOUR JUDGE J HULL QC
MRS T A MARSLAND
MR R N STRAKER

MR R LANGDALE	APPELLANT

MISS G M HANNIBAL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR RICHARD BOOTH
(of Counsel)
Bar Pro Bono Unit	
For the Respondent	IN PERSON	

	JUDGE J HULL QC:     This is a case which has caused us a good deal of anxiety and, indeed, regret.  The regret in particular is that Miss Hannibal, the Respondent to the appeal, has been suffering from what is described as quite a serious illness and has been greatly distressed by the proceedings and what went before.  We, as I have explained, or tried to explain, are simply a Tribunal of law and it is our duty to look and see what has happened at the Industrial Tribunal and if we discover any error of law, we have a duty to put it right.  We are not concerned at all with the correctness of facts.  Those are matters for the Industrial Tribunal alone.  They are often described as an industrial jury and they must find what the facts are.

	First of all I must set out the facts, of course relying on what was said by the Industrial Tribunal and what we have been told.  Miss Hannibal was employed from 4 April 1994 by the Appellant, Mr Richard Mark Langdale, at his hairdressing salon in Gosport, Hampshire.  She was a hair stylist.  She went on working for Mr Langdale until 26 May 1996, when she was dismissed.  She put in her application to the Industrial Tribunal on 1 June 1996 alleging that she had been unfairly dismissed and claiming compensation.

	On 21 July Mr Langdale put in his Answer, saying that she had been guilty of continual lateness and making a number of other allegations against her.  That is at pages 17 and 18 of our bundle and he sets out a number of allegations.  He complains, among other things, of behaviour of which he says she was guilty, not only during her employment, but afterwards.  Now of course it is not up to us to say what the truth of those matters is, it is entirely a matter for the Tribunal.

	So the Tribunal sat under the chairmanship of Mr Gorst, with two industrial members, at Southampton on 2 September 1996.  On 8 October they published their decision and that is with our papers at page 5.  They gave their reasons.  They said that in their view Miss Hannibal had been unfairly dismissed.  They referred to documents; they referred to evidence which they had received from Miss Hannibal and from Mr Langdale.  They described the details of the complaints made by Mr Langdale, the lateness in particular, and other complaints which he made about her and then they describe warnings which they say evidence was given about by Mr Langdale, and they considered those.  And then they came to paragraph 7, which is an important one for this purpose.  They say:

“7.  That is the totality of the relevant evidence.  On almost every aspect there is a conflict.  The Respondent said he had a statement by an employee who could corroborate that he gave the Applicant a final warning.  We refused to allow him to adduce that statement because the Applicant would not have had an opportunity to cross examine that person.”

	The Tribunal go on:

“8.  Realistically, everything turns on the question whether a warning of dismissal was or was not given.  If it was not, clearly the dismissal was unfair.”

	And they say then:

“However, in this case, we have been left with the feeling that, on balance, the Applicant and not the Respondent has been telling the truth.  We do not believe that he did more than try to persuade her to be in on time.  We are unpersuaded that he ever gave her a dismissal warning.  From this we have to find that he did not, having regard to her equity and the substantial merits of the case, act reasonably in treating his matters of complaint as his reason for dismissing her from which it follows that the dismissal was unfair.”

	And then they looked at the loss suffered by Miss Hannibal.  They said she had been out of work for a substantial period until 12 August 1996, when she had earned nothing and they made a basic award and a compensatory award totalling £1,834.16.  So that was the decision of the Industrial Tribunal.

	Now we have to look to see why, on what basis, Mr Langdale appeals against the decision.  He appealed, at first stating three grounds.  Then leave was given for the appeal to proceed and to amend and he added a fourth ground.  We have to look and see if any errors of law are disclosed by what the Tribunal did and by the Notice of Appeal.

	The first ground is this.  Mr Langdale says, at paragraph 6:

“(a)  The Tribunal failed to exercise its discretion properly when the Chairman alone, decided to exclude evidence presented by the Appellant.  The Chairman rejected from evidence a witness statement by letter from Mrs J M Hayes who was unable to attend the Tribunal hearing.”

	We have looked at the letter.  He wanted to put it in front of the Tribunal.  So by the direction of this Tribunal the Chairman was asked about that matter and he wrote us a letter.  First of all, in his letter dated 1 February 1997, he said that they had received some evidence which should have been in the decision, but they had not put it there.  So that was a blemish and, very fairly, the Chairman invited our attention to it.  Then he said:

“It is correct that I did not permit Mr Langdale to adduce the ‘statement by letter from Mrs J M Hayes’.”

	So he is, we think, conceding that a matter which should have been a decision of the Tribunal as a whole was left to him.  That, by itself, might not be conclusive that anything had gone wrong.  It should have been the decision of the Tribunal.  They would naturally have been very anxious to listen to their lawyer chairman on the matter of a technicality of that sort, but it appears that he took it on himself, alone, and then he goes on:

“Rightly or wrongly I took the view that acceptance of ‘evidence’ in that form would put the Tribunal in an impossible position.  If you read the letter but have no opportunity to consider the writer’s demeanour or opportunity to cross-examine the writer the probability is that you will have no reason for rejecting the contents as untrue.  If you have no reason for rejecting the contents as untrue it follows that you are forced to accept them as true.  I was not willing to put myself and the lay members into that impossible position.”

	And he says that he does not remember any application from Mr Langdale for an adjournment, to enable him to call Mrs Hayes.

	Both parties were present in person and that put the Tribunal in a difficult position.  The Tribunal did not have the benefit of any legal submissions from either party, but it does seem to us that the learned Chairman was making a serious mistake and showing it in what he has so candidly written.  If the Chairman was right, no written evidence would ever be accepted, whether on affidavit or otherwise, because the Tribunal would always be in this position.

	Since 1938, at any rate, all civil tribunals, whether courts or otherwise, have been able to receive and had a discretion to receive written evidence, whether in letters or other documents, as evidence of the truth of what is written in them.  It is a matter of discretion for the court and there are rules which ought to be complied with.  Tribunals do not have rules dealing with this, and it is in each case a matter of discretion.  Since the Civil Evidence Act 1995 came into force on 31 January 1997 it has ceased to be a matter of discretion, except as to matters of procedure, because Section 1(1) of the Civil Evidence Act 1995 says:

“In civil proceedings evidence shall not be excluded on the ground that it is hearsay”.

	We think, in the light of the Civil Evidence Acts from 1938 onwards, that the Chairman should have considered it with his members in the following way.  “Here is a letter.  Let us read it and see what is said.  Let us hear what is said about the letter; why the witness is not here.  Let us consider first of all whether we should treat the contents as evidence.  If we do we have to decide what weight to give them.  We have heard live witnesses here, give evidence viva voce.  It may be that we shall reach the conclusion that we cannot possibly displace the impression which they have made on us by simply reading a letter.  It may be, on the other hand, that we think the letter is of some value.  We may think it of great value.  We shall have to deal with it in the same way that any other tribunal or court of law ought to do”.  They did not do that.  They excluded it on the basis that it would put them in an intolerable position even to read it.  That was a fundamental error of law by the Chairman, in our view, though a very natural one to make.  If that was the correct approach then Parliament could never have passed the Act that they have done and courts could never receive hearsay evidence.

	Then we go on to look, with slightly less certainty, at the other grounds of appeal.  We see here the amended Notice of Appeal which is at page 4B of our bundle.  The second ground is that:

“(b)  The Tribunal failed to properly consider and/or to give any reasons for the finding against the Appellant’s contention that the Respondent contributed to her own dismissal.”

	Mr Langdale had given reasons such as lateness.  Even if he was not justified in dismissing her, they were at any rate reasons which he could justly say had contributed to her dismissal.  That having been raised, clearly the Tribunal should have dealt with it.  It may be that one sentence would have been enough.  “We did not feel able to act on Mr Langdale’s evidence here, we preferred the evidence of the Applicant, Miss Hannibal”.  They did not deal with the evidence though and they should have done.

	The Chairman has not commented on that and so we are simply accepting, in effect, what is said by Mr Langdale; that he did raise this point and it should have been dealt with.

	Then the third ground is that the Tribunal failed to consider, or give any reason for finding against, the contention that Miss Hannibal had failed to mitigate her loss.  Mr Langdale said she had, in fact, obtained work; had, indeed, taken customers from him.  I am not going to go into the painful details of what he said.  Again, the Tribunal might have concluded, as Miss Hannibal has said, that if she was not earning her living it was because of Mr Langdale’s approach in apparently saying unpleasant things about her to future employers and, as she puts it, “ruining things for her”.  But the Tribunal did not deal with that and we think they should have.  They should have said, “Is this loss of wages anything which she could have mitigated or should have mitigated, or did mitigate by obtaining other employment?”.  They did not deal with that part of the case.

	Finally, there is the fourth ground which was added by leave of our Tribunal under its President:

“(d)  The Tribunal failed to properly consider and/or to give any reasons for wrongly excluding evidence of the Respondent’s actions following dismissal.”

	It was alleged by Mr Langdale that Miss Hannibal had done various things after she had been dismissed and if the Tribunal had accepted that evidence, then that might well have led them to say that her compensation should have been reduced, on the grounds that it was not just and equitable that she should have full compensation.

	It may be that if the Tribunal had considered all those matters it would have decided the case, nonetheless, entirely in favour of Miss Hannibal.  We cannot say that.  They should have considered them and said what they made of them.  It may be that they did consider them, but they have not said so.  

	It is essential that a Tribunal should tell each of the parties why they have won or why they have lost, as the case may be, on the principal issues which go to the root of what the Tribunal is having to decide.  This Tribunal, it seems to us, has failed in those respects and, in addition, made one quite palpable error of law.  What is to be done about that?  It may very well be that Miss Hannibal was, and is, fully entitled to succeed in all respects.  Unhappily for her, and through no fault of hers whatever, the Tribunal which tried her case has made, it appears to us, at least one serious mistake of law and very probably three other mistakes of law which do go to the root of what they had to decide.  They have not set out in their decision what they have decided on those matters.

	In those circumstances we have only one course open to us.  We cannot try the case today.  We most certainly cannot say what the rights and wrongs of it are.  All we can say is, as I say, that there has been a mistake.  The case must be heard again by a different Tribunal because the Tribunal which heard this case would inevitably be embarrassed at having to reconsider their decision and go over ground which they thought they had covered.

	So in justice to both parties we have to say that mistakes having been made, they must be put right by a Tribunal trying the case ab initio, that is to say, from the start; without directions from us, without considering what was said by the other Tribunal, hearing the case anew, hearing any evidence which is laid before them, considering any documents which are to be put before them, for what they are worth, and reaching a decision in accordance with law.  First of all, deciding whether Miss Hannibal was, indeed, unfairly dismissed, then deciding of course whether she made any contribution to the dismissal, deciding what it is just and equitable that she should receive, deciding whether she took proper steps to mitigate her loss, deciding whether in fact she did mitigate her loss in any way.  All those matters and any other matters which seem material to their decision will have to be considered by the Tribunal.  That is the only order we make, apart from the order which we already have made giving leave to Miss Hannibal to file her Answer in this Tribunal out of time.  We have given leave for that and we say that the appeal is to be allowed and the matter is to be remitted as we have directed.

	We should like to express our sympathy to Miss Hannibal in the illness and unhappiness which she suffered and we regret the fact that the matter has to be further delayed in this way, but there is an overriding consideration to which we must always give effect and that is that justice must be done in accordance with law and not otherwise.  That is the decision of us all.

	Miss Hannibal has complained to us that when she arrived at the Tribunal and, indeed, today, she has been shown documents for the first time.  That is quite wrong and we hope that the Tribunal will give directions, if necessary, and we hope, indeed, that it will not be necessary.  Any document which is to be relied on, whether as evidence or simply as part of the narrative of the case, is to be disclosed and sent by the party who is going to rely on it to the other.  That goes for Miss Hannibal as well as for Mr Langdale, for there are to be no surprises at the hearing.  Surprises are contrary to justice and usually do more harm than good.