R v Hughes (Peter)

Permission to appeal may be granted where the proposed appeal has a real prospect of success on whether the lower tribunal misunderstood the reason for dismissal or relied decisively on later questionnaire evidence. An employer may rely on subsequently available information to argue for reduced compensation, but the tribunal must assess whether the additional allegations would have justified dismissal. A complete reduction is difficult to justify where the allegations were not put to the employee and were not tested through evidence or cross-examination.

The key information identifies the source as R v Hughes (Peter) [2002] UKPC 12. The supplied transcript is instead headed Hughes v Jones (t/a Plas-Y-Bryn Nursing Home) and records an application for permission to appeal from the Employment Appeal Tribunal. The issue was whether dismissal followed a pushing incident or questionnaire results, and whether later allegations could support reducing compensation to zero when they had not been put to the employee or tested by witnesses. The lower decision’s citation is not stated.

Disposition. Permission to appeal was granted. Permission to amend the appellant’s notice was also granted. Lord Justice Ward agreed with Lord Justice Keene’s reasons. The court did not finally determine the merits.

1. Real prospect of success. It was arguable that the lower tribunal had proceeded on an incorrect understanding of the Employment Tribunal’s decision. The questionnaire results might not have been available when the dismissal occurred. If so, the pushing incident alone might have caused the dismissal, which could materially affect the compensation award.
2. Later information. An employer may rely on information becoming available after dismissal to argue that compensation should be reduced, including that dismissal would have occurred shortly afterwards once other allegations were investigated. The tribunal nevertheless had to assess whether the additional allegations, taken with the original allegation, would have justified dismissal.
3. Opportunity to challenge evidence. The allegations had not been put to the employee. The tribunal heard neither from the staff who supplied information nor from the questionnaire compiler. The employee therefore had no opportunity to test the allegations in cross-examination. It was difficult to justify a complete reduction in compensation based on the questionnaire evidence alone.
4. Settlement. The court encouraged settlement or mediation because a full appeal could be costly and might require a further Employment Tribunal hearing.

Orders: the application for permission to appeal was granted; the transcript was to be provided to both parties at public expense; and permission to amend the appellant’s notice was granted.

The supplied transcript records the following procedural history, although it is inconsistent with the key information identifying the source court as the Privy Council:

• Court of Appeal (Civil Division): On an application arising from the Employment Appeal Tribunal, permission to appeal and permission to amend the appellant’s notice were granted. The transcript bears the citation [2002] EWCA Civ 346.