Appeal No.	 EAT/810/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 June 2000

Before
HIS HONOUR JUDGE PETER CLARK
MR P A L PARKER CBE
MRS M T PROSSER

MR M B HOLDER	APPELLANT

UNIPART GROUP LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

FULL HEARING
Revised

	APPEARANCES

For the Appellant	The Appellant in Person	
For the Respondent	MR D BASU
(of Counsel)
Messrs Morgan Cole
Buxton Court
3 West Way
Oxford
OX2 0SZ	

JUDGE CLARK

1	The Appellant, Mr Holder was a long standing employee of the Respondent, Unipart Group Ltd, having commenced that employment on 18 June 1979.  At the material times he was employed as an administrator at their premises in Cowley, Oxford.

2	In May 1998 the Appellant exchanged e-mails with the office Services Manager, Diane Elsmore.  In his e-mail dated 18 May he described her earlier communication dated 15 May as “ill-timed, offensive, rude, sarcastic and downright ignorant.”  He circulated that e-mail to other members of staff, in addition to Ms Elsmore.

3	As a result disciplinary proceedings were taken against him resulting in a final written warning which was to remain on his file for 12 months administered on 26 May 1998.  He was told that any further breaches of discipline might lead to further action being taken, possibly dismissal.

4	Against that warning he appealed.  Before that appeal was heard and dismissed on 8 June 1998 by Mr Wilkins, the General Manager of the Rover business at Unipart in Cowley, a further incident arose.

5	On 29 May a female employee, Liz Gaitch, complained that the Appellant had made very rude, personal and crude comments to her.

6	Further disciplinary proceedings followed.  At a disciplinary hearing held on 23 June 1998 the Appellant denied the allegation made against him and accused the witnesses of lying.  He was dismissed with 3 months pay in lieu of notice.
7	Against that decision he appealed, maintaining his denial of the complaint against him.  That appeal was dismissed on 10 July 1998.

8	Thereafter a second appeal hearing took place before Mr Pybus, the Respondent’s Managing Director, on 25 August 1998.  The Appellant changed his story.  He accepted that he had not told the truth earlier.  He had made the remark complained of by Ms Gaitch.

9	At that hearing he was represented by a solicitor paid for by the Respondent, Mr Bhath.  There is before us that solicitor’s attendance note of the hearing.  Having said all that could be said on behalf of the Appellant Mr Bhath concluded his representations with these remarks: -

“I stated that I would like to mention one matter 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.”

10	We emphasise that the medical ground, then unsubstantiated by any medical evidence.  It was tied into the Elsmore incident not the Gaitch incident.

11	His complaint of unfair dismissal came before an Employment Tribunal sitting at Reading on 1 and 23 April 1999.  The Appellant appeared in person, Mr Basu of Counsel appeared on behalf of the Respondent.  By a decision promulgated with extended reasons on the 18 May 199 the Employment Tribunal dismissed that complaint.

12	Against that decision the Appellant appealed by way of a Notice dated 24 June 1999.  He raised a number of grounds of appeal.  The matter was listed for preliminary hearing before a Division presided over by Holland J on 22 October 1999.  That division permitted the appeal to proceed to this full hearing on one point only.  It seems that on 23 April 1999 the Appellant sought to put in evidence a one page medical report from his General Practitioner, Dr David Scarfe, dated 2 December 1998 and written to solicitors then instructed by the Appellant, we are told by Mr Holder in connection with his matrimonial proceedings, which confirms that the Appellant had suffered from depression following his marital separation and had been prescribed medication for that condition.  The point made at the very end of Mr Bhath’s representation to Mr Pybus at the second appeal hearing held on 25 August 1998.  Mr Basu did not object to the report being admitted in evidence, but the Chairman declined to do so on the basis that it post-dated the internal disciplinary process culminating in the Pybus hearing.

13	This incident is not referred to in the Employment Tribunal’s extended reasons but there is no dispute between the parties before us as to what happened.

14	The short point of law identified by Holland J in these circumstances is whether the Employment Tribunal erred in refusing to admit that medical report.

15	That seems to us to raise 2 questions:
(1)	did the Employment Tribunal err in the exercise of its discretion in excluding that evidence and if so
(2)	whether, notwithstanding such an error, the Employment Tribunal decision can be affirmed as being plainly and unarguably correct, or whether the decision is vitiated so that the case must be reheard by a different Employment Tribunal?

16	As to the first question we can well understand why no objection was taken by Mr Basu.  The Appellant was in person.  The strict rules of evidence are relaxed in the Employment Tribunal.  No doubt, as experienced Counsel he does not wish to encourage an appeal in such circumstances, in the interest of his clients.  Nevertheless, the question is whether the medical report was relevant to the issues raised in the case and its admission in evidence necessary for the fair disposal of the proceedings.  On neither count are we satisfied that the Employment Tribunal can be said to have fallen into error.  The report was not obtained so as to be placed before the Respondent at the internal disciplinary hearings.  It could have been.  In that sense it was not relevant to the issues as to whether the employer acted reasonably at the time of his dismissal and subsequent internal appeal hearings.

17	It might have become relevant and necessary for the disposal of the proceedings had there been an issue as to whether Mr Bhath had accurately stated the medical position, insofar as it could be said to be relevant to the charges laid against the Appellant.  But there was no contest.  At no stage did the Respondent challenge what Mr Bhath had said.  In these circumstances we are not persuaded that the Chairman fell into error by excluding the medical report.  Even had we found that the Employment Tribunal erred in excluding the medical report, we are quite satisfied, in the circumstances of this case, that its exclusion had no impact at all on the outcome.  The Employment Tribunal were entitled to find that the Respondent acted reasonably in dismissing the Appellant for the misconduct which he initially denied and later admitted, having carried out a proper procedure.  We cannot accept Mr Holder’s submission that a reasonable employer would inevitably have adjourned the second appeal hearing in order to investigate the medical position mentioned by Mr Bhath.  It might be otherwise had Mr Pybus been asked to take that course and declined to do so.  He was not. 

18	Accordingly, in these circumstances we shall dismiss this appeal.