Appeal No.	 EAT/540/98 	                  & EAT/710/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 November 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR A C BLYGHTON
MRS J M MATTHIAS

MR P DRAKE & MRS K DRAKE t/a PROCUTS [A Partnership)	APPELLANTS

MISS S D LOWES	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellants	MR P DRAKE

	MR JUSTICE MORISON (PRESIDENT):	This is an appeal from two decisions of an Industrial Tribunal. The first decision was that the applicant, Miss Lowes, had been unfairly dismissed by her employers, Mr P Drake and Mrs K Drake t/a Procut (a partnership) by reason of her pregnancy contrary to s. 99(1)(a) of the Employment Rights Act 1996. 

	The applicant presented her IT1 alleging the reason for her dismissal was not the reason which the employers had advanced but rather was because she was pregnant. A dispute arose between the parties as to whether in those circumstances it was appropriate that the employers should give evidence first or whether the unrepresented applicant, Miss Lowes, should present her case first. Having heard argument from Miss Lowes and from the solicitor on behalf of the respondents, the tribunal considered it best from the point of view of the management of the case that the employers should present their evidence first, which they did on 19th November 1997. 

	The matter came back before the tribunal on 8th January 1998 by which time the applicant had had an opportunity to consider with care what the employers were saying and to prepare her own case and present it, which she did.

	The Industrial Tribunal’s conclusion was that having regard to a case called Maund v Penwith District Council [1984] IRLR 24 the employers had failed to satisfy them that the reason for the dismissal was not the reason they were alleging and accordingly the reason for the dismissal was as she, the applicant, had said, namely her pregnancy. 	The reasons for the tribunal’s rejection of the employer’s evidence and case are fully and properly set out in their decision on liability. 

	The employers then applied to the Industrial Tribunal for a review of that decision. They were still concerned about the way the tribunal had handled the case and the disadvantage they felt they sustained as a result of the employer’s case having to be presented first. But they also had acquired since the original hearing some evidence which showed that the applicant did not have the professional qualifications that were necessary to enable her to do the hairdressing job she was employed to do and that that might have explained and corroborated their case that she was dismissed because she was not doing her job properly.

	The Industrial Tribunal Chairman, having considered that application, refused to grant a review. In giving his judgment the Chairman said this:

“At the start of the hearing the Tribunal had indicated that it considered that it was in the interests of all parties that it heard evidence from the Respondents first. The Respondent’s solicitor’s submitted that this was inappropriate and that the Tribunal should hear evidence from the Applicant first.
The Tribunal considered that submission, and then explained to the parties that taking all matters into account, it considered it could give the fullest and most appropriate consideration to all relevant factors before it by hearing evidence from the Respondents first.
The Tribunal in explaining that the hearing would proceed on that basis, made it clear to the parties where the burden of proof rested and that no decision would, or could, be made until all the evidence had been heard and considered. This decision on the order of evidence was not motivated by any prejudice against, or sympathy for, either party at the hearing but on the basis of what the Tribunal considered was best for the most effective conduct of the proceedings for all concerned.
All those who gave evidence to the Tribunal were available for cross examination and required to answer such questions as the Tribunal considered appropriate to the potential issues of law and fact that might need to be considered by it at the conclusion of the hearing.
The Tribunal’s deliberations and its Decision were wholly directed to the evidence, documentation and submissions it had received and no other matters entered into, or affected, those deliberations.”

The tribunal then go on to say that it would not be appropriate to comment in detail on the employer’s submissions on the tribunal’s findings of fact which they had presented in support of their application for a review. They did feel it necessary to correct one inaccuracy. The tribunal noted that it was the dismissal of the applicant and the events leading up to it with which the tribunal was concerned, and that the new evidence, that is in relation to the applicant’s qualifications, does not relate to matters which were known to them at the time of the applicant’s dismissal and could not, therefore, have been in the minds of the employers at the time they made their decision to dismiss the applicant. On that basis, the application for a review was refused and the employers have separately appealed that decision.

	In support of their appeal, Mr Drake, to whom we are grateful, reverted to the question of who should start the evidence in a case such as this where the applicant does not have the requisite qualifying period of service to bring an unfair dismissal complaint unless he or she can establish one of the specified unlawful reasons for dismissal, of which pregnancy is one.

	The matter in issue had been considered by the Court of Appeal in the case of Maund to which I have referred. In that case the Court of Appeal said this:

“If the employer cannot satisfy the Tribunal as to the reason for which he dismissed his employee, the dismissal must be regarded as unfair. If the employer produces evidence to the Tribunal that appears to show the reason for the dismissal, then the burden passes to the employee to show that there is a real issue as to whether that was the true reason. This burden is a lighter one than the legal burden placed on the employer. The burden on the employee is not to prove the reason for his dismissal: it is an evidential burden to produce some evidence to cast doubt upon the employer’s reason. The burden cannot be discharged by the employee merely asserting in argument that that was not the true reason. He must produce evidence that raises some doubt about the reason for the dismissal. Once this evidential burden is discharged the onus remains on the employer to prove the reason for the dismissal.”

Accordingly, says Mr Drake, it was wrong of the Industrial Tribunal to ask for their case to proceed first, because until the applicant had satisfied or discharged the evidential burden, albeit a light one, to show that the reason for dismissal was pregnancy or not the reason advanced by the employers, they should not be called upon to put forward their own case. 

	It seems to us that that is an over-technical approach to the matter at issue, which is simply in what order parties should give their evidence. We say that because it is quite clear in this case that the tribunal themselves were alive to the decision of the Court of Appeal because in paragraph 36 of their liability judgment refer to the passage to which I have just referred. 

	Provided that the burden of proof is kept firmly in mind, it seems to us that the tribunal were obviously entitled to ask the parties to give their evidence in the order which occurred in this case. These proceedings are not designed to be based on trial by ambush. There should be no particular advantage to any party to have the opportunity of presenting their case first or second. The respondents were represented; the applicant was not. In those circumstances it was obviously an option for the tribunal to follow the course which they did in this case. However, the Employment Appeal Tribunal would like to remind Industrial Tribunals that the mere fact that one party is not represented should not be taken as evidence of that party’s inability to present their case in a coherent and sensible way. Indeed, it would be a pity if Industrial Tribunals were of the view that for a cogent presentation of the case a lawyer was required; that is not an assumption which is made in the Employment Appeal Tribunal.

	Accordingly, we do not think that it is reasonably arguable that the Industrial Tribunal has erred in law in taking the evidence from the parties in the order in which they received it in this case. Nor do we think it remotely arguable that any prejudice was caused as a result of this. If the applicant had gone first, this would not have been the sort of case where it would have been in the slightest bit appropriate for the employers to decline to give any evidence themselves. They would have had to present their case. The fact that the hearing was adjourned might have given the applicant a rather greater advantage than otherwise she would have had, but we cannot think that that happenstance makes a decision which was otherwise perfectly sensible and reasonable unfair or wrongful. Accordingly, it seems to us, that Mr Drake has made far more of that point and that issue than is justified and it is not arguable that there was an error of law in respect of it.

	As to the second decision, that is the refusal to hold a review, it does seem to us that the Industrial Tribunal’s decision in relation to that cannot be faulted. If the information as to the qualifications of the applicant was not available to the employers at the time of the dismissal, then the new information in relation to it could have only at the very most some marginal affect on the original decision. Plainly in an unfair dismissal case an employer cannot rely on a matter which he did not know about when he was dismissing as being a reason for dismissal. The only possible pertinence of this additional material was that it could have, if it was proved, cast some doubt on the integrity of the applicant and that might have affected their assessment of the credibility of the witnesses. But looking at the terms of the liability decision, it seems to us obviously clear that on the material which they were presented with, they were well entitled to conclude that the true reason for the dismissal was her pregnancy. As Mr Drake accepted, one of the problems for his firm was that her case was supported by another former employee of theirs.

	Accordingly it does not seem to us that there has been any identifiable error in law in the way in which the tribunal has concluded these two matters. We would add that Mr Drake was of the view that the Industrial Tribunal had appeared to him to be taking the applicant’s part during the course of the presentation of the employer’s case. As he was putting it, it appeared to the employers at the end of the first day that it was a battle between the Industrial Tribunal and the employer with the Industrial Tribunal holding some kind of brief for the applicant. That I think demonstrates a misunderstanding of the role of Industrial Tribunals which is different from the role of a normal court. Rule 9(1) of the Industrial Tribunals (Constitution etc.) Regulations 1993, Schedule 1 provides:

“The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings.”

It will be apparent from the breadth of that Rule that the tribunals have considerable discretion as to how to handle proceedings so as to provide a just result; and that they have a duty to make enquiries of persons appearing before it, including their witnesses, as it considers appropriate. On occasions where one party is unrepresented but the other is, it may be appropriate for them to ask extensive questions. But that is a difficult judgment which is best left to the good discretion of the Industrial Tribunal itself. We are not satisfied from what we have been told that the tribunal overstepped the limit in this case and we think that Mr Drake perhaps has misunderstood the nature of the proceedings rather than being a victim of any unfairness on the part of the Industrial Tribunal. In all these circumstances, we are satisfied that there is no arguable point of law and accordingly the appeal is dismissed.