Appeal No.	 EAT/810/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 October 1999

Before
THE HONOURABLE MR JUSTICE HOLLAND
MR S M SPRINGER MBE
MR T C THOMAS CBE

MR M B HOLDER	APPELLANT

UNIPART GROUP LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Mr Holder
(In person)	

JUDGE HOLLAND:
1	By an IT1 dated 9 December 1998, Mr Holder complains of unfair dismissal from his former employment with the respondents, Unipart Group Ltd, as an Administrator.  That complaint came for hearing before an Employment Tribunal sitting at Reading, on the 1 and 23 April 1999.  In the result as communicated by way of a decision, and extended reasons of the 18 May 1999, the complaint was dismissed.  The finding was that the dismissal of Mr Holder on the grounds of conduct was fair.

2	From that decision, Mr Holder appeals to this Tribunal.  He has raised with us several points.  As we made it clear on the course of argument, our concern today is to whether, any one of those points is of sufficient weight to justify adjourning this matter, so as to permit the respondent employers to attend and to assist the court with their submissions.  As we further explained, if there is no such point, then it is our duty to dismiss this case, as of now.

3	In the event there is a point raised by Mr Holder that in our judgement justifies an inter-parties hearing.  Since that point does not emerge with complete clarity from Mr Holder’s own notice of appeal, we now set out what it is, as we presently understand it.  

4	As appears from the extended reasons, at the early summer of 1998, there were two disciplinary matters raised against Mr Holder.  The first such matter appears in Paragraph 4(c)  of the extended reasons, and relates to an incident on or about the 18 May.  As will be seen the reaction of the respondents to that incident was to issue Mr Holder with a final written warning, which was to remain on his file for a period of 12 months.  

5	We draw attention to the nature of his behaviour namely there was an intemperate response by way of an email.  Within the currency of that final written warning, there was a further complaint raised against him, that is, a complaint of the 29 May, the essence of that complaint being that some personal and sexual remarks had been made by Mr Holder to a fellow employee.  That second complaint set in train the respondent’s disciplinary process and it is important to note that that process terminated internally, with a final appeal heard by Mr Michael Pybus on the 25 August 1998.  

6	For that appeal the respondents with exceptional fairness arranged a representation for Mr Holder.  In the result a solicitor, Mr Bhath appeared for Mr Holder, and made submissions to Mr Pybus.  Mr Holder has obtained from Mr Bhath an exhibit, Mr Bhath's attendance note relating to that occasion.  It is apparent that in the course of his submissions to Mr Pybus on behalf of Mr Holder, Mr Bhath said.

“I stated that I would like to mention one matter to which Mr Holder was reluctant to mention, but I prised it out of him.  He was currently going through a divorce and having to look after two children.  He is suffering from depression and receiving medication.  Certainly this may have been a contributing factor when he wrote the memo to Diane”.

7	We interpose, the latter reference is the reference to the first disciplinary incident.  We interpose further, that submission was put to Mr Pybus without the benefit of any supporting medical evidence, for example, a medical report.  In the overall result as is apparent from the extended reasons, that plea which had other limbs to it, was unsuccessful and Mr Pybus dismissed the appeal against dismissal.  

8	We then turn to the proceedings before the Employment Tribunal.  What Mr Holder tells us this morning is this.  That on the first day of the hearing, that is on the 1 April, Mr Pybus was called to give evidence and he, Mr Holder had the opportunity to cross-examine him.  Mr Holder was appearing in person, the respondents were represented by Counsel.  Mr Holder believes that in the course of his cross-examination, he did raise with Mr Pybus the fact that there had been this intimation through Mr Bhath that he, Mr Holder had been suffering from depression at the material time, that is, he sought to raise with Mr Pybus that which Mr Batty had said on the 25 August.  His belief is that he took it no further at that stage, and he readily accepts that when taking the point, it was in amongst a lot of other points and perhaps didn’t have any particular prominence.  

9	Turn then to the 23 April, Mr Pybus is no longer present and there comes a stage at which Mr Holder has to make his final submissions to the Tribunal.  It was at that stage he says that he produced a medical report that had been provided to him by his GP and is dated 2 December 1998.  We have that report in front of us and it refers to the impact of a marital separation had had upon Mr Holder and reads as far as material in these terms.

“I am sure that the marital separation has had a very substantial effect on him, since I think it would be fair to describe him as having a susceptible personality.  He has exhibited features of obsessional compulsive behaviour which have been exacerbated following his marital failure.
He has been treated with antidepressants, the first prescription being given in July 1995 as a result of his marital problems.  He subsequently received other antidepressants in March 1997, April 1998 and is currently taking antidepressants.  He was referred to our Counsellor in 1996 and subsequently on the basis of recommendation of the Counsellor to a psychologist.  A second referral was done to a Counsellor in August 1997. In June of 1998 he was referred to a doctor specialising in physical manifestations of stress”.
It is very difficult to say to what degree the marital separation has contributed to his loss of employment.  In my opinion the extra stresses that it caused and the lack of support that he would otherwise have had at home must have contributed I would say to a moderate degree.  I don’t think I can be more specific than that”.

10	That report was says Mr Holder, tendered to the Tribunal in the course of his final submissions.  This was of course the first time the Tribunal had seen it.  His recollection is that no objection to that course, was raised by Counsel for the respondents, but that notwithstanding, the Chairman decided that it was too late to have regard to it, or to take it into consideration.  Certain it is, turning back to the extended reasons that there is absolutely no reference at all to anything to do with this report, or indeed anything to do with the medical history of Mr Holder as at the material time.  

11	For our part, we are concerned about this matter sufficiently to think that it should be the subject of consideration on an inter-parties basis.  We would readily understand the course taken by the Chairman if Mr Holder had been represented.  But given that he was unrepresented, and given the content of the document and the nature of the behaviour, then we think it is a matter that is open to argument,  as to whether the exercise of discretion on the part of the Chairman, was one that can be substantiated by this Tribunal.  

12	It is for those reasons that the matters goes forward.  We would add that more recently, Mr Holder has obtained a further medical report dated 9 August 1999, which we have seen, which seemingly has a marked relevance to the second of the disciplinary matters.  However, it seems quite clear that the matter that the content of that, was never put before Mr Pybus, no more than it was put before the Tribunal.  And it is a matter plainly far less clear, as to whether that should have any weight at all in the consideration in this matter by this Tribunal.  If of course this tribunal sends the matter back for a re-hearing, it will then have whatever force it is appropriate to apply to it.  

13	Mr Holder has raised a further matter before us, we need not develop it, it does not in our judgement and any further matter of law such as would justify the inter-parties hearing.

14	Therefore follows that this matter must be adjourned and it will be relisted for an inter-parties hearing.  We know not how practical this is, but we would urge Mr Holder to see whether it is not possible for him to be represented, before this Tribunal so as to argue the case. Further if he is to be represented, then some thought might be given to amending his notice of appeal.  If he remains unrepresented, then that which is set out in this judgement should suffice to identify the point, but anybody professional appearing for him may wish to develop the point rather better than it appears already in the present notice of appeal.

15	Listing Category C.  Length 2 hours.