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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hammond v Sir John Fitzgerald Ltd [1998] UKEAT 1033_98_1112 (11 December 1998) URL: http://www.bailii.org/uk/cases/UKEAT/1998/1033_98_1112.html Cite as: [1998] UKEAT 1033_98_1112

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APPEARANCES

 

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED


 


MR JUSTICE LINDSAY: We have before us, but in the absence of Mr I Hammond, an appeal by Mr I Hammond in the matter Hammond against Sir John Fitzgerald Ltd. We had every expectation, because here a terse and to-the point-Notice of Appeal had been lodged, that someone would appear today, either Mr Hammond or someone on his behalf. No one has appeared. Attempts have been made to contact Mr Hammond. I understand that attempts have also been made to contact some representative who earlier was thought to represent Mr Hammond, but no contact has been possible and no message has been received that suggests that Mr Hammond or a representative had set out but had found it difficult to get here or anything of that nature nor any sickness or illness either.

We could, I suppose, adjourn the matter to a further preliminary hearing, or we could, indeed, dismiss for want of any representation, but there is here a point that might deserve to be taken further and accordingly we shall set out something of the case.

The unanimous decision of the Industrial Tribunal was that Mr Hammond's application failed and was dismissed. The dismissal of which Mr Hammond complained had been for misconduct. The particular misconduct involved the suspicion, at least by Sir John Fitzgerald Ltd, that Mr Hammond had been dealing in drugs. Obviously a very serious charge. It has criminal overtones, of course, and also, if upheld, would be likely to make the future employment of Mr Hammond difficult.

It was a case in which the employer had made enquiries. Then there was a disciplinary hearing on 16th December 1997. Although the Industrial Tribunal does not in terms say so, the dismissal seems to have been on 16th December 1997, namely at the conclusion of the disciplinary hearing. There was then an appeal by Mr Hammond against that conclusion. On 13th January 1998 the internal disciplinary appeal confirmed the dismissal.

At the hearing before the Industrial Tribunal it was conceded on the part of the employer that the disciplinary hearing was flawed and accordingly, the employer relied on the allegedly curative properties of the appeal. The case Whitbread v Mills [1988] IRLR 501 was cited to show that appeals can have a curative effect.

The Industrial Tribunal held that the appeal had been thorough and, in effect, it took the view that the disciplinary appeal had cured the earlier defect. However, the Notice of Appeal, albeit unsupported by anyone speaking to it today, says that at the appeal hearing (the person who had conducted the disciplinary appeal was a Mr Garrett) Mr Garrett had had before him written statements of evidence from witnesses. The Notice of Appeal goes on to say that Mr Hammond, or his representative, had earlier written a request for copies of the evidence that was going to be laid before Mr Garrett and that they had done that on 17th December 1997, well in time for the conclusion of the disciplinary appeal on 13th January 1998. The Notice of Appeal goes on to say that it had been confirmed at the Industrial Tribunal that there had been a request of that kind, and moreover, that there had been a failure to supply the witness statements that had been thus requested. The Notice of Appeal then draws our attention to Linfood Cash & Carry v Thomson and another [1989] IRLR 235. In that case, before the EAT, Wood P. presiding, some guidelines were given in relation to the proper conduct of disciplinary enquiries and hearings. The President set them out and at paragraph 20 it says this:

"... 7. The written statement of the informant - if necessary with omissions to avoid identification - should be made available to the employee and his representatives."

That case is later than the Whitbread v Mills case that was referred to at the Industrial Tribunal.

If the point was taken below that there had been a request for witness statement copies and that the request had been declined, that seems to us, arguably at any rate, to be a serious point that should have met with express treatment by the Industrial Tribunal. If the point was taken one would expect to see reasons. For example; if the point was to be disregarded, why it was that no particular weight should be attached to it in the circumstances of this particular case. But the point is entirely unmentioned. It does seem that if the point was taken below then an arguable point now arises, namely, whether the Industrial Tribunal misdirected itself in allowing the disciplinary appeal to have had a curative effect, notwithstanding that the procedure at the disciplinary appeal was apparently defective in that witness statements, even though requested, were not supplied.

If Mr Hammond had been here by himself or a representative and had urged that there should be full hearing, we would have been likely to have directed that there should be one. But we would then have had the advantage of being told whether or not the point truly had been raised below, which at the moment we cannot tell.

Rather than going now direct to a full hearing, the better course, as it seems to us, is to send a copy of the Notice of Appeal to the Chairman and ask for his comments upon it, particularly asking whether the point that there had been a request for witness statements and that it had failed to have been honoured was taken below. As the Chairman is thus to be approached, it would be convenient if at the same time he should be asked to supply such notes as he has of any evidence of a request by Mr Hammond for a sight of the witness statements used at the disciplinary appeal hearing on 13th January 1998 or as to the failure of Mr Garrett or the employer to supply the witness statements in response to that request, if it was made.

When that information comes to hand at the EAT, then there can be relisted a further preliminary hearing. The EAT that hears that further preliminary hearing will have the benefit not only of our identification of a possible point as we have indicated it but also will have the benefit of knowing whether the point had indeed been raised at the Industrial Tribunal level. If it had not been raised at the Industrial Tribunal level, well then, the Industrial Tribunal could hardly be accused of having overlooked it. So what we will do is suggest a letter be written to the Chairman for his notes and observations in the manner we have indicated, but, on that basis we simply adjourn this preliminary hearing to a further preliminary hearing, at which the matter can be better considered in the light of information as to whether the point had been raised first time round.