Day 195 - 04 Dec 95 - Page 53
1 show it was not said on their behalf. It would be most
2 unsafe for you to adopt that position. If you are calling
3 evidence from a witness who says: "Mr. So-and-so, First
4 Assistant Manager, said this", it is hearsay. If you want
5 to bring yourselves within what I will broadly and,
6 perhaps, loosely call an exception to the hearsay rule, my
7 present view is that the burden is upon you to show that
8 I can safely and fairly treat that as being said by the
9 Second Assistant, First Assistant, Store Manager or Area
10 Supervisor on behalf of McDonald's.
11
12 Whether I am right about this, whether I will have the same
13 view, or have a different view when I have heard what you
14 have to argue, I will put on one side, but I do not want
15 you to go on conducting the case on the basis that if
16 Mr. Alimi says a member of management said that, you can
17 safely assume I will treat that as a statement for or on
18 behalf of McDonald's.
19
20 MR. MORRIS: Right. If I can just say, I thought when
21 Mr. Rampton was making his very long submissions about
22 Harriet Lamb there was, in fact, a much more broader reason
23 for making that submission which, I suspected, was this
24 very point.
25
26 MR. JUSTICE BELL: There is no need to suspect. I mean, it is a
27 completely open point and it is a matter which has troubled
28 me for sometime. What troubles me more is that when
29 I brought it out into the open by saying what I did about
30 the distinction between salaried Managers and Floor
31 Managers who are not salaried, that was a gross
32 oversimplification of the position and I do not want you to
33 be misled by it.
34
35 MR. MORRIS: I think if I can make an initial point, I think the
36 confusion raised by Mr. Rampton is this admission on behalf
37 of McDonald's. Obviously, a binding admission on behalf of
38 the whole Company is one thing, such as we have had in this
39 case, we have had formal admissions or, presumably, if a
40 statement comes from the head of a department it would be
41 pretty binding on that department, or whatever, but in
42 terms of evidence, in terms of details about what was
43 happening at a particular store, it is quite clear that an
44 Assistant Manager who knows everything that is going on in
45 the store, is in charge of a shift, saying something that
46 indicates what his policy is for that shift, i.e. people
47 not complying would be sent home, or whatever or: "We do
48 not want any talk of unions here", it is clear that they do
49 not want any talk of unions there. I would not say that we
50 are necessarily going to mean that is binding on the entire
51 Company, but it is still evidence of whatever that person
52 would be competent to talk about.
53
54 MR. JUSTICE BELL: Just pause there a moment, because what
55 troubles me is that it is, indeed, evidence that the person
56 said it, but the moment you cross the line and say: "It is
57 evidence that what he said was true", then the matter is
58 more difficult. I have heard Mr. Rampton's argument on
59 that. I must hear what you have to say about it in due
60 course, because it has thrown itself up at the moment, but
