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Cite as: [1992] UKEAT 64_91_2010

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BAILII case number: [1992] UKEAT 64_91_2010

Appeal No. EAT/64/91

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20th October 1992

Before

THE HONOURABLE MR JUSTICE KNOX

MRS E HART

MR J A SCOULLER

MRS J WATSON APPELLANT

(1) GATESHEAD BRANCH OF ROYAL AIRFORCE ASSOCIATION NO 803

(2) C HERRING & ALL OTHER MEMBERS OF ROYAL AIRFORCE ASSOCIATION NO 803 RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant MR P KRAMER

(Of Counsel)

David Gray & Co

17 Elswick Road

Newcastle upon Tyne

NE4 6ER

For the Respondents MR T FINCH

(Of Counsel)

Mulcahy Smith

20/23 Regent Terrace

Gateshead

Tyne & Wear

NE8 1DA

MR JUSTICE KNOX: Mrs Joyce Watson appeals against the decision of the Industrial Tribunal sitting at Newcastle upon Tyne on the 23rd November and it would appear the 10th December 1990, when the Tribunal unanimously held that Mrs Watson's claim under Section 53(4) of the Employment Protection (Consolidation) Act 1978 for a declaration that her employers had unreasonably refused to provide a written statement for the reasons for her dismissal failed, and they also held that her claim that she was unfairly dismissed by her employers succeeded, but that it was not just and equitable to award her any compensation.

Her employers were the Gateshead Branch of the Royal Airforce Association, which is an unincorporated Association. Mrs Watson had been the Stewardess of the Club. She was originally the wife of a Steward and was employed to assist him when she first became employed in December 1986, but when her husband unfortunately died about two years later, of cancer, she was appointed in his stead. Her dismissal occurred on the 5th April 1990.

It will be convenient to deal with the two issues that arise on the appeal, namely, whether the Industrial Tribunal was right in its conclusion that there was no unreasonable refusal to provide a statement of reasons for Mrs Watson's dismissal. Secondly, that no award should be made in her favour, notwithstanding the fact that she was unfairly dismissed. Dealing with the first point, the unreasonable refusal point, the relevant Section is Section 53 of the Employment Protection (Consolidation) Act 1978. It imposes an obligation on an employer to give reasons on request for dismissing an employee. Subsection (1) says:

"An employee shall be entitled -

(a)if he is given by his employer notice of termination of his contract of employment;

. . . . . . . . . . .

to be provided by his employer, on request, within fourteen days of that request, with a written statement giving particulars of the reasons for his dismissal."

There is not an exact match with that obligation in the subsection which imposes the penalty for non-compliance because that subsection which is subsection (4) provides for complaint to be presented to an Industrial Tribunal by an employee against his employer, and then I quote:

"on the ground that the employer unreasonably refused to provide a written statement under subsection (1)"

then I need not read the next few words because they only deal with giving reasons but inadequate or untrue ones. This case was purely concerned with no reasons at all being given.

The chronology that is relevant for this purpose is that after Mrs Watson's dismissal, which as I have said, occurred on the 5th April, she wrote a letter on the 25th April, which was before the Industrial Tribunal, in which she said:

"Can you please send me a letter in detail, the reason why the RAFA Club terminated my employment as the stewardess, and also why I have not received four week's holiday pay and my P45.

I would like a reply within seven days."

That letter got no answer. And, in fact, so far as the evidence goes, Mrs Watson did not repeat her request. What she did do, as she was entitled to, was to issue her Originating Application which was presented on the 21st May 1990 and that of course repeated the fact that there had been no reason given. In paragraph 10 of her Originating Application, she says:

"I wrote a letter to the RAFA Club, Bewick Road, Gateshead. Recorded Delivery asking for a written letter why I was dismissed as stewardess. . . . I have had no reply within three weeks."

So that was, in a sense, the second time in which it had been brought to the notice of the Club that Mrs Watson had asked for a letter and had not got it. In fact the answer came on the 1st August 1990 in IT3, the Notice of Appearance of the Club, which made it clear what the Club's case on the subject was. Anticipating what arose on the second issue, the main complaint was that Mrs Watson and a Mr B Taylor were found behind the bar of the club in the early hours of the morning one day and that was not anything that she was entitled to do. The Club claimed that she had been unable to provide a reasonable explanation as to why she was behaving in that suspicious manner.

We were referred to the authorities, which all appear to deal with cases where the tribunal in question found that in the particular circumstances there had not been a refusal to give reasons. They all deal with the difference that is evident between non-compliance with subsection (1) and being exposed to a penalty in subsection (4) which can be put by saying that one deals with failure and the other deals with an unreasonable refusal. Equally they all make it clear that there are two elements to the state of affairs that attracts a sanction in subsection (4), there is a first of all a refusal and there is secondly, an unreasonableness in that refusal. In this case of course we are solely concerned with the refusal, because there was never a reason given by the Club for its non-compliance with Mrs Watson's request, although there was an explanation which the Industrial Tribunal accepted.

The propositions of law, which seem to us to summarise the situation most clearly are to be found in Lowson v. Percy Main Club Ltd [1979] ICR 568 at p.573 where Mr Justice Bristow giving the decision of this Tribunal said this:

"In our judgment, as a matter of construction, the question, when you have the advantage of having it fully argued by counsel on both sides, becomes a relatively plain one. We think that mere failure to comply with a request does not necessarily amount to unreasonable refusal. We have no doubt at all that if Parliament had intended that mere failure should attract a penalty, it would have drafted subsection (4) in those terms. We have no doubt at all that subsection (4) means what it says, and to attract the penalty there must be an unreasonable refusal by the employer. The refusal may be explicit; the refusal may be by conduct, and we would not be so rash as to attempt to lay down any guidelines about what conduct in some future case might and what conduct in some future case might not amount to refusal. It must depend on the facts of the individual case."

He goes on to deal with that particular case finding that there was a simple failure of communication between the Club and the Solicitors and directly the Solicitors realised that the request had not been complied with they themselves supplied the deficiency.

The other two authorities to which we referred were Charles Lang & Sons Ltd v. Aubrey [1978] ICR 168, where there was a 35 day delay but the Employment Appeal Tribunal in Scotland held that there was not material upon which the Industrial Tribunal could properly find, as it had, that there had been an unreasonable refusal. Finally, we were referred to Ladbroke Entertainments v. Clark [1987] ICR 585 where the employer, it was found in the Employment Appeal Tribunal, effectively had not realised that a request had been made and in those circumstances it followed as a matter law that there could not have been an unreasonable refusal if the employer was not conscious of the existence of the request. That of course is a different point from ours.

It was submitted to us by Mr Kramer, who argued this case with skill and pertinacity, that consciousness of failure to reply was enough to constitute a refusal, if there was no explanation, and he pointed to the fact that the delay here was much longer, for instance than in Charles Lang & Sons Ltd v. Aubrey because the delay stretched from 14 days after the 25th April, which was when the reply should have been received right down to the 1st August of the same year.

The effect remains, in our view, that if one does not have what Mr Justice Bristow called "an explicit refusal" that is to say when somebody on behalf of the employer says no, or words to that effect, one has to find, objectively, conduct which constitutes a refusal to give reasons and whether that has occurred in any given case is a matter for the assessment of the Industrial Tribunal as an issue of fact. One of the factors which appears to have moved this Industrial Tribunal is that they were dealing with a small, amateur and fairly inefficiently organised set up of a relatively small Club. What they actually said was this, in paragraph 4:

"It is clear that there was a failure to supply written reasons, but there is no evidence that the officials of the Club ever refused to supply them."

Pausing there for a moment, we construe that as refusing explicitly to supply reasons. Going on with the reasons:

"Section 53(4) is a penal section, which must be strictly construed, and it specifies an unreasonable refusal, rather than an unreasonable failure."

they then quote a passage from Lowson's case:

"`First you must find your refusal, then you must go on to consider whether the refusal which you found is unreasonable or not.'"

and they say:

"It is appreciated that in certain situations, such as repeated requests which are not complied with, failure to supply can be evidence of a refusal to supply; but in this case, where a single request is not dealt with by an unbusinesslike organisation, it would be wrong to conclude that that failure was evidence of a deliberate refusal. Accordingly we dismiss the claim under section 53(4)."

That seems to us to be something with which it would be quite wrong for us to seek to interfere. It was a matter for judgment for the Industrial Tribunal whether the circumstances were such, as they can be, in a case where there is no explicit refusal, that a refusal could legitimately be found. It is, of course, only on an error of law that this Tribunal has jurisdiction to interfere.

I turn therefore to the other matter, which was the non-award of a either basic or compensatory award to Mrs Watson notwithstanding the fact that she was unfairly dismissed. There are two heads under which such a reduction, in this case to nil, can occur. One is in the original calculation of the compensatory award, the tribunal is required to award such amount as the tribunal considers just and equitable in all the circumstances, having regard to the loss sustained by the complainant in consequence of the dismissal, in so far as that loss is attributable to action taken by the employer. That introduces the concept of just and equitable, that is in subsection 74(1) of the 1978 Act. There is also, the contributory fault provision, which is 74(6):

"Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."

It seems probable that the Industrial Tribunal was primarily, if not exclusively, exercising its discretion under the latter rather than the former of the two subsections. More especially because, with regard to the basic award, there is a reference to just and equitable in subsection 7(B) of Section 73 whereas there is no such elasticity in the initial calculation of the basic award which is calculated according to a formula.

We therefore approach this on the basis that the Industrial Tribunal was reducing the award by 100% on the basis of what usually is compendiously called contributory default. The evidence on this was extremely thin before the Industrial Tribunal.

Before the Industrial Tribunal the evidence came from Mr Herring on behalf of the Club. He was the Secretary and his account of the relevant events revealed that what he was able to give evidence of was not just single, or even double hearsay but treble and possibly quadruple hearsay. The evidence was that there had been a report by the Police that an incident had occurred during the night. Mr Herring put it at 10 to 12 days before the occasion when the Committee met and decided that dismissal was the appropriate penalty to visit on Mrs Watson and the basis for it was that a Police Constable had told the Treasurer, who was not Mr Herring, who was the Secretary, and the Treasurer had told Mr Herring, and Mr Herring told the Tribunal. It is possible that the Police Constable was not somebody who had been involved in the Police's activities which were reported as having been that the Police was rung when the daughter of Mrs Watson had rung up the Cleaner and asked if Mrs Watson had then left the Club. The Cleaner had replied "you had better call the Police" and a Constable and a Police Woman went to the Club, were unable to open the door with the Cleaner's help because although she had the key there was a bolt inside and the Police went off and got a Sergeant, who forced a way in through the bolted door. As Mr Herring reported it that was around 1.30 to 2 am in the morning. So, on that side there clearly was a long and possibly tenuous chain of hearsay evidence. On the other side Mrs Watson gave evidence to the Industrial Tribunal which, is not, we think, necessary for us to rehearse in full. In short, what she said was that she had spent the night with Mr Taylor, for the first time that night, and they had decided round about 5 or so in the morning to go to Seahouses, on the coast in Northumberland, not very far away from Newcastle to see a child of Mr Taylor's, and that she had resolved, because there was clearing up and preparation for banking to do in the Club, to go there very early in the morning. She left at ¹/₂ past 5 and got there in company with Mr Taylor at 6, and that that was in time to catch the 10.35 bus to Seahouses.

The Industrial Tribunal, not to put too fine a point on it, simply did not believe Mrs Watson. What they actually said in their decision on this score, having set out what Mrs Watson said to them in evidence, was this:

"There are several puzzling features of this story. It strikes us as odd that the police would burst in through the Club door without first knocking, unless there appeared to be imminent danger to life, which is unlikely if the event took place in the early morning. Mrs Watson said that the bursting in was a very short time after she and Mr Taylor arrived and she heard no knocking. It is true that she is hard of hearing in one ear, but it was not said that Mr Taylor was similarly afflicted. The fact that a sergeant was called suggests that there was some delay after the initial unlocking by the cleaner. Mrs Watson must have been inside then or the unlocked door would have opened. It is also odd that after spending (for the very first time) the night at Mr Taylor's flat she should have decided in the middle of the night, to go to Seahouses, get up at 5.30 and reach the Club at 6.00 am. We find it difficult to believe that it was necessary to start so early in order to catch the 10.35 bus to Seahouses, and presumably there are other buses. If, as she says, the incident happened in January, we find it inconceivable that non-one in the Club had heard of the incident, which involved damage to the door, before the Committee meeting on 3 April. Altogether we are not disposed to believe her story, and we find that her presence in the locked Club did not happen on the date she says, or at the time of morning she says, or the purpose she says.

On the balance of probabilities we find that the incident happened when the Treasurer reported it to have happened."

From that they concluded that she had been in the Club in the small hours of the morning, with the door locked with Mr Taylor at an hour when neither of them had any right to be there and for reasons which cannot be known but are unlikely to be entirely innocent, and from that, that her irregular conduct was the overwhelming cause of her dismissal.

Mr Kramer subjected that reasoning to a very close and critical examination and he succeeded in satisfying us that indeed the evidence that was given on behalf of the Club was unsatisfactory in a variety of different respects. Mr Herring accepted, in cross examination that there was surmise in his factual analysis of what had happened in some respects and there was a very long chain of hearsay undoubtedly. The particular point that was the subject of his surmise was the time of night when this incident occurred. There is a discrepancy between what he said in evidence as the reason why he fixed on 1.30 to 2, namely that the Cleaner was in bed, and the original account that was given to the Committee, and which the Committee minuted, that there was an account given by the Police to the Treasurer and which the Treasurer reported to Mr Herring as not having contained the time of day. But the fact of the matter remains that this is all firmly in the area of factual investigation and for us to interfere we would either have to be satisfied that there was no evidence at all on which the Industrial Tribunal could come to the conclusions that they did reach, or that they were perverse in reaching the conclusion that they did and Mr Kramer, frankly, accepted that this was an appeal based on perversity. We are unable to see that this is in that category of case where this Tribunal, on a pure issue of fact, can be certain that the Industrial Tribunal has got its facts wrong. In our view this was a matter where there had undoubtedly been an incident in the middle of the night, that was not in dispute. Undoubtedly Mrs Watson and Mr Taylor had been in the Club at an hour when, by any standards, they should not have been there. So that even within the parameters of what was not in issue there was still ample scope for finding that Mrs Watson had seriously been at fault. But over and above that, the question of which account to believe is essentially a matter for the Industrial Tribunal and we are unable to see a basis upon which we can legitimately interfere.

Accordingly this appeal will be dismissed.