England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge Peter Clark)

		Royal Courts of Justice Strand London WC2A 2LL Tuesday, 19th March 2002

Tuesday, 19th March 2002

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal and, if it is a proper case, for permission to extend the time in which to appeal, as the application was made out of time. The application is made by Mr El Mahjoub in person. The decision against which he wishes to appeal is that of the Employment Appeal Tribunal on 2nd November 2001. In his judgment on behalf of the Employment Appeal Tribunal His Honour Judge Peter Clark explained why the Employment Appeal Tribunal had refused to grant Mr El Mahjoub's application to bring forward new evidence and concluded that there were no good grounds for admitting it. They were satisfied that there was no error of law in the decision of the Employment Tribunal so that the appeal should be dismissed.
2. The Employment Tribunal, sitting at Stratford, had dismissed Mr El Mahjoub's claim for unfair dismissal. The Extended Reasons for their decision were sent to the parties on 7th February 2000. In that document the Employment Tribunal unanimously decided that Mr El Mahjoub was not dismissed by the respondent, Initial Cleaning Services Ltd, and that, therefore, his complaint of unfair dismissal should be dismissed. They did, however, hold that Initial Cleaning Services owed Mr El Mahjoub £653.60 unpaid wages, and they were ordered to pay that to him.
3. At the hearing today, Mr El Mahjoub has submitted a very helpful and detailed skeleton argument which, over six pages, examines the decisions of the Employment Appeal Tribunal and the Employment Tribunal in depth and explains why he says permission to appeal should be granted. During the hearing this morning he has forcefully explained the basis of his appeal and has taken me to all the relevant documents. They include, not just the decisions of the lower tribunals, but also the witness statements of Ms Brechin and Mr Pearson on behalf of Initial Cleaning Services, and a number of other documents, including a Vodaphone mobile phone account which was produced by Initial very late in the hearing in the Employment Tribunal.
4. I mentioned to Mr El Mahjoub at the outset that the power of the Court of Appeal to hear his appeal is limited. First, he must obtain permission. Permission is only granted if the appeal has a real prospect of success. Secondly, grounds of appeal are limited to questions of law. The Employment Tribunal hears the witnesses, examines the documents and decides the facts. The power of the appeal court is limited to deciding whether, in the decision to dismiss the claim, the Tribunal made an error of law. This court has no power to alter or amend the findings of fact which have been made by the Employment Tribunal after hearing the evidence.
5. The background to this claim is that Mr El Mahjoub was employed by Initial Cleaning Services over the period May 1998 to July 1999. He was a site manager and at the time was responsible for Murray House. The Cleaning Regional Director was Ms Brechin, and Mr Pearson was the operation manager. The case of Initial Cleaning Services was that at a meeting on 1st July 1999 between Ms Brechin and Mr El Mahjoub, Mr El Mahjoub resigned. He disputes this. He says he did not resign; he was dismissed. It was in those circumstances that he began his case in the Employment Tribunal in September 1999.
6. According to his application he had been dismissed unfairly. In the application form IT1 he said this:

"On 1st July 1999, I was informed by Ms Janie Brechin of the Respondent that I had been suspended on full pay until further notice."

7. He then received a letter dated 6th September 1999 in which Ms Brechin informed him that the respondent considered that he had resigned with effect from 1st July 1999. He denied that he had resigned from his employment, and he wrote on 21st July 1999 asking to be reinstated, which the respondent refused to do. He said he had received no pay since the end of week 14, pay date 9th July 1999. He therefore informed them on 29th September that he considered that he had been constructively dismissed and the dismissal was unfair. He claimed damages for unfair dismissal and unpaid wages, one week in June and from 1st July 1999 to 29th September 1999, amounting to £4,577.02.
8. The respondent in their IT3 form disputed the facts alleged by Mr El Mahjoub. They said that on 1st July 1999 there had been expressed to Mr El Mahjoub some concerns about his management of the contract. There was a discussion in Ms Brechin's office during the course of which Mr El Mahjoub tendered his resignation. He was not suspended. Later that evening, there was a telephone conversation between Mr Pearson and Mr El Mahjoub in which Mr El Mahjoub confirmed his intention to resign, and Mr Pearson asked him to return the keys. The form finishes in paragraph 8, stating this:

"The Company vigorously denies that Mr El Mahjoub was constructively dismissed. Initial Cleaning Services did not suspend Mr El Mahjoub. Mr El Mahjoub resigned of his own volition on 1st July 1999. He received a one weeks pay in lieu of notice, and his employment ceased on 8th July 1999."

9. That was the factual dispute before the Employment Tribunal in the hearing on 28th January 2000 at Stratford. Mr El Mahjoub conducted his own case in person, and the personnel director of Initial Cleaning Services, Mrs Stringfellow, conducted the case for Initial Cleaning Services. The Tribunal heard evidence from Mr El Mahjoub in person, from Ms Brechin and from Mr Pearson, and the Tribunal had documents from both sides. As to unpaid wages, Initial Cleaning Services agreed that they owed Mr El Mahjoub £653.60. So the only question was as to dismissal. The critical point whether Mr El Mahjoub had been dismissed at all. If he had been, then it would be necessary to consider whether there was a good ground for dismissing him. But if, as a matter of fact, he was not dismissed at all, but had resigned, then he could not bring a claim for being dismissed unfairly.
10. On that the Tribunal heard a complete clash of evidence between Mr El Mahjoub on one side and Ms Brechin and Mr Pearson on the other side. The Tribunal went through the evidence that was given and said that they accepted the evidence given by Ms Brechin (see paragraph 8). They found that Mr El Mahjoub had resigned and had not been suspended on full pay at the meeting on 1st July. They also accepted the evidence of Mr Pearson (see paragraph 11) that, in the course of the telephone conversation, Mr El Mahjoub was quite definite about his decision to resign and was not prepared to remain with the respondent. The Tribunal said this in their decision at paragraph 18:

"On the facts which we have found, it seems to us to be clear that this is a case in which the Applicant resigned. As appears above, the Tribunal did not accept Mr El Mahjoub's version of events. There was no reason for Ms Brechin to suspend Mr El Mahjoub. We accepted her evidence that he resigned at the meeting she had with him. That resignation was not just in the heat of the moment, but was confirmed to Mr Pearson later the same day. Mr Pearson gave evidence that he wrote to Mr El Mahjoub next day, accepting his resignation. We did not accept that that letter was a fabrication and, given that finding, there is no reason why it should have been sent if Mr El Mahjoub had not resigned. Further, the failure to pay Mr El Mahjoub was consistent with his having resigned and inconsistent with his having been suspended on full pay. In the circumstances we found that Mr El Mahjoub was not dismissed."

11. Mr El Mahjoub then appealed to the Employment Appeal Tribunal. I have already referred briefly to the judgment given in that case. The Appeal Tribunal summarised the findings of fact, which I have already stated. They referred to the fact that there was a preliminary hearing of the appeal before His Honour Judge Levy and the lay members on 15th November 2000, and directions were given about the production of the Chairman's notes. The basis on which that was done was that Mr El Mahjoub complained of procedural irregularity, in particular the production of the telephone record by Initial Cleaning Services to the Employment Tribunal during the closing speeches in the Employment Tribunal. Various directions were given as to evidence, and they were complied with. So before the Employment Appeal Tribunal, Mr El Mahjoub, who was at that point represented by counsel, Mr Segal, argued that there had been a procedural irregularity in the hearing, because the mobile telephone account of Mr Pearson had been produced late by Mrs Stringfellow and was not the subject of sworn evidence. The Chairman's notes were produced, as were affidavits of Mr Pearson and Mrs Stringfellow. The Tribunal then dealt with the argument of procedural irregularity and rejected the submission which Mr Segal made on Mr El Mahjoub's behalf, saying there had been no unfairness or failure to do justice between the parties on this aspect of the case. They dealt in detail with the circumstances in which the mobile phone account had not been adduced in evidence earlier.
12. There was then an application for new evidence to be admitted on the appeal. The new evidence was the evidence of Mr Manuel Araujo, which was in the form of a witness statement - at the time he was employed by Initial Cleaning Services as a night supervisor at Murray House - and the statement which he gave was summarised. The Tribunal concluded that the new evidence should not be admitted because, even assuming that it was significant and credible, it could, with reasonable diligence, have been put before the Employment Tribunal. That is the test which an appeal tribunal, like an appeal court, applies to evidence which is produced for the first time on an appeal. There was also an application to adduce in evidence some correspondence between Initial Cleaning Services and Mr Stevens, in which it was said that Initial Cleaning Services had treated Mr Stevens badly, as Mr El Mahjoub alleged he had been treated badly in this case. The Tribunal refused to allow that evidence, on the basis that the exchange of correspondence with Mr Stevens was unlikely to have any significant effect on the outcome of the Tribunal proceedings. Mr El Mahjoub then made his application, about 11 days late, for permission to appeal to this court.
13. In the course of his submissions, which were both forceful and clear, Mr El Mahjoub concentrated on what he sees as the weaknesses in the evidence of Ms Brechin and, in particular, Mr Pearson. He has taken me in detail through what was said in the letters written to him by Ms Janie Brechin on behalf of Initial Cleaning Services on 6th September 1999. He has referred to the circumstances in which it is said that the letter was sent to him by Mr Pearson on 2nd July 1999. He has referred to Ms Brechin's letter of 5th October 1999, pointing out by reference to the numbered paragraphs, the claims that were made and has then compared them to the documents and, in particular, to the evidence in the witness statements, which were only produced by them, Mr El Mahjoub says, at the beginning of the hearing before the Employment Tribunal. He has taken me in detail through the witness statements of Ms Brechin dated 28th January 2000 - that is the date of the hearing before the Employment Tribunal - and a witness statement by Mr Pearson of the same date. He has summarised the points which he makes about the facts stated by them about the circumstances in which he is supposed to have resigned, the phone call with Mr Pearson that evening, the circumstances in which it is claimed by Initial Cleaning Services a letter was sent the next day by Mr Pearson to Mr El Mahjoub accepting his resignation, and the circumstances about his payment.
14. What Mr El Mahjoub is clearly saying is that the evidence of Mr Pearson and Ms Brechin was not reliable and, indeed, was not truthful, and that as a matter of law the appeal court should allow him to bring forward this appeal. If he succeeds, he would wish to have this case remitted to the Employment Tribunal for a fresh hearing of all the evidence. He realises that this would be at an additional expense and would take further time, but, he says, justice requires that all this evidence should be properly re-examined by another tribunal.
15. In support of these arguments Mr El Mahjoub also referred to a number of cases which lay down quite clearly the circumstances in which the appeal court may interfere with the decision of the Employment Tribunal on a point of law. I have to say that some of the points made to me by Mr El Mahjoub about the unsatisfactory nature of the evidence of Initial Cleaning Services and some unsatisfactory aspects of the procedure before the Employment Tribunal, in particular the late production of the witness statements and the late production of the Vodaphone account, have made some impression upon me. I can understand the basis on which he feels aggrieved about the decision in this case. I have to bear in mind, however, that his grievance is about the facts of the case. He is clearly of the view that the Tribunal should have rejected the evidence of Ms Brechin and Mr Pearson that he had resigned and that their other evidence about the letters and the telephone calls, as well as the conversations, should have been rejected too. He thinks, possibly with some justification, that his evidence ought to have been accepted.
16. However, as I have made clear to Mr El Mahjoub at the outset of the hearing and at a number of points during his submissions, the Tribunal decides the facts. I have no power to re-decide the facts. I only have the power to order another tribunal to rehear and re-decide the facts if there was an error of law in the decision of the Employment Tribunal at Stratford on 28th January 2000.
17. I cannot see that there was any error of law. The question for the Tribunal was purely one of fact: had Mr El Mahjoub resigned, or had he been suspended on full pay and constructively dismissed? The Tribunal found as a matter of fact that he had resigned. That may not have been the same finding of fact that another tribunal would have made or that I would have made if I had heard all the evidence. But one thing I am sure about is that the decision of fact by the Tribunal is not erroneous in law because there are some aspects of the evidence which are open to question or because Mr El Mahjoub is of the view that they have found the facts wrongly. They might have found the facts wrongly, but I have no power to do anything about that if they applied the law correctly. In my view, they did apply the law correctly. I therefore conclude that this appeal has no real prospect of succeeding. Although I appreciate that this will be upsetting for Mr El Mahjoub, I have no choice but to refuse the application.
18. The application is refused.
Order: Application refused.