Appeal No.	EAT/1381/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 March 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR J D DALY
MR A E R MANNERS

MR D RICE	APPELLANT

ROVER GROUP LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MS H GREWAL
(of Counsel)
Elliott & Co
Solicitors
83 Newhall Street
Birmingham
B3 1LP

	MR JUSTICE MORISON (PRESIDENT):	The question at issue at this stage is whether there is any and if so what identifiable arguable point of law in a Notice of Appeal which Mr Rice wishes to maintain against the decision of an Industrial Tribunal which was held at Birmingham on 8th July 1997. By their decision the Industrial Tribunal rejected Mr Rice’s complaint of unfair dismissal which had been brought against his former employers, Rover Group Ltd. The tribunal had accepted that the dismissal was unfair, but concluded that he was not entitled to any basic or compensatory award. 

	Essentially the reason why he was dismissed related to an absence on a particular date, having regard to a whole history of absences and other matters referred to in the tribunal’s decision. Mr Rice had said that he was absent on the day in question because he had an upset or bad tummy.

	The Industrial Tribunal concluded that the dismissal was unfair for procedural reasons set out in the decision. They turned to the question of the effect of the decision in Polkey upon their findings. They concluded in paragraph 50 that they were satisfied on all of the evidence, and found, that had the appellant been questioned properly, Mr Howard, who conducted an appeal, would still have formed the view that the appellant had deliberately absented himself from work.

	In a conspicuously able submission, Ms Grewal invites us to allow the matter to go forward for a full hearing. She says firstly, the question which the tribunal asked itself at paragraph 50 as to Mr Howard’ state of mind, was not a pertinent question. Mr Howard was not responsible for taking the decision to dismiss in this case. That decision was taken by Mr Morgan, and the Industrial Tribunal should have asked the question whether Mr Morgan would still have formed the view that the appellant had deliberately absented himself from work. In this case, the appellate process was by way of a review of the dismissal decision, rather than by way of a rehearing of the whole issue.

	We are persuaded that that technical point is just arguable. Although we should say that it may well be that on analysis there is a little merit in it, having regard to the fact that there is no reason to assume that Mr Howard was possessed of a greater sense of justice and reasonableness than Mr Morgan.

	Secondly, it is submitted to us that the Industrial Tribunal’s decision appears to be somewhat conflicting. It is submitted to us that the Industrial Tribunal were prepared to accept as truthful the evidence of the appellant. Ms Grewal referred to paragraph 18 of the decision and in that paragraph the tribunal said this:

“18	The applicant told us, and we accept, that the occupational nurse that he saw did not examine him in any detail, but gave him some pain killers and said that he could go back to work. The applicant accepted that, and did work for the rest of day. The applicant did not appear the next day, Thursday 20 February, because he had an upset stomach. ...”

The tribunal then indicate in paragraphs 48 and 49 that they themselves asked the appellant about his alleged sickness, and it was as a result of those question and answers, that they felt satisfied that Mr Howard would still have formed the view that the appellant had deliberately absented himself from work. From which we deduce, that Mr Howard would still have formed the view that the appellant’s explanation for not attending work was to be rejected.

	We consider that it is just arguable that the tribunal have not set out with sufficient clarity, to enable Mr Rice to know how they have come to their decision, the basis on which the tribunal have reached their conclusion in paragraph 50, having regard to their findings in paragraph 18 and 49. Again, without prejudging the matter, we do not think that Mr Rice should overestimate his prospects of success on that point.

	In relation to the third point, that is whether the tribunal have directed themselves properly as to contributory fault and the way they dealt with the basic award, we again, think that Mr Rice should be entitled to argue that matter at a full hearing, but again sound the same note of caution.

	For the purposes of the full hearing of the appeal, we consider that it will be necessary to invite the learned Chairman to provide us with his Notes of Evidence only of the applicant/appellant himself. The Chairman obviously participated, no doubt quite properly, in asking a number of questions of the appellant as he has indicated at paragraph 49 of the decision. It may be that whilst he was asking the questions, he was not able to make Notes of the answers, and of course, in preparing his Notes of Evidence of the applicant/appellant, he is perfectly entitled to consult his lay colleagues if he thinks that that will be of assistance to him in completing those Notes. We normally do not ask for Notes of Evidence, but having regard to the way the case was put, we think that this is a case which justifies us in making the request which we hope will not prove too difficult for the Chairman to comply with.

	On that basis, and on that basis only, we are prepared to allow this matter to go for a full hearing. We give leave to the appellant, subject to any representations made on behalf of the respondents, to amend the grounds of appeal in the terms set out in the draft which we have been provided with, excluding paragraph 1.2. 

	This is a Category C case. It could be happily dealt with by Judge Peter Clark and his lay colleagues. It will take, I would estimate, no more than 1½ hours in all. Legal Aid taxation granted to the appellant.