United Kingdom Employment Appeal Tribunal

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Cite as: [1993] UKEAT 495_92_0902, [1993] UKEAT 495_92_902

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BAILII case number: [1993] UKEAT 495_92_0902

Appeal No. EAT/495/92

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9 February 1993

Before

THE HONOURABLE MR JUSTICE MAY

MR J D DALY

MR J C RAMSAY

H TURNBULL & CO LTD APPELLANTS

D WOOLGAR RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

APPEARANCES

For the Appellants MR R W MOORE

(DIRECTOR)

MR JUSTICE MAY: This is a hearing under the special procedure, provided by paragraph 6 of the Practice Direction, to give the Appellants to this appeal, the Respondents to the case before the Industrial Tribunal, H Turnbull & Co Ltd, the opportunity of showing cause why the appeal should not be dismissed, that is to say, the opportunity to persuade us that there is an arguable point of law.

Mr Woolgar, the Applicant, left the Respondents' employment in November 1991, in curious circumstances. He was working for them as a labourer, essentially, in the building trade and the building trade at the time was suffering from lack of work. There had been lay-offs and Mr Woolgar had approached an Agency to see whether they could find him employment. There was some prospect of him being employed through that Agency on the Monday of the week following the 4 November 1991, that is to say, 11 November 1991, and according to the Industrial Tribunal's Reasons and findings of fact, there appears to have been some confusion between Mr Woolgar and his employers as to exactly what was going to happen with the Agency work.

The point at issue was whether or not that was temporary or permanent employment. Mr Woolgar's case was that it was temporary and it appears that at any rate Mr Moore and Mr Richardson of the Respondent company had got the idea that it was permanent and that it was in those circumstances that Mr Woolgar left the employment of the Respondents on Friday 8 November 1991.

The findings of the Industrial Tribunal included these:

"3 Mr Smith, a member of the Respondent's management, telephoned the Applicant on Monday 4 November to offer him a definite four days site clearance work, starting the next day. In fact the Applicant did not start work until the Wednesday. The evidence is that the Applicant phoned back because he had registered with an agency in Sutton which had promised him a job starting the following Monday."

Going on, the question was, whether Mr Woolgar intended, as the Industrial Tribunal put it, to resign from Turnbulls' or not. The Industrial Tribunal, having considered what Mr Woolgar said Mr Smith had said to him, then went on to say:

"..... Either way, Mr Smith would have known that the Applicant did not intend to resign. We consider that there is enough uncontradicted evidence to prove on balance of probability, that that was the impression conveyed by both phone calls."

- that is to say, phone calls between Mr Smith and Mr Woolgar -

The Tribunal go on to say:

"... In any event we feel bound to accept the evidence of the Applicant that such information was passed to Mr Smith since no acceptable contrary evidence is available."

There is then consideration of other evidence including the fact that Mr Woolgar was not entirely clear of some of the facts relevant to the case and consideration about him receiving his P45 form and holiday stamps on Friday 8 November, and the Industrial Tribunal's findings then go on in these terms:

"5 So we come to the point on Friday 8 November when the Respondents management, with the exception of Mr Smith, thought that the Applicant was leaving to take permanent employment elsewhere and the Applicant thought that he was being paid up to date. We take the view that since the Applicant's employment was terminated by the Respondent as a company that company had notice, through its properly authorised agent, Mr Smith, that the Applicant wished to remain in its employment. It follows that the company "knew" that Mr Woolgar did not intend to leave voluntarily. Mr Woolgar is not responsible for the fact that the vital information was not passed on. It was the Respondent which acted to terminate the employment and, whether some of its management realised it or not, it was, therefore, the company which terminated the Applicant's employment, however mistaken its motives. The question then is whether the company, given its mistaken belief, acted reasonably. In our view its ready acceptance that what Mr Woolgar had in mind was a permanent job was totally unreasonable."

The Industrial Tribunal then go on to explain why they reached that conclusion, ending with the words:

".... The truth, in our opinion, is that Mr Moore was given totally inadequate information which, in the pressure of circumstances, he really did not examine at all."

It is to be emphasised that the Industrial Tribunal reached the decision that both Mr Moore and Mr Richardson acted entirely honourably and that so far as they are criticised, they are criticised for what happened as a matter of fact in this rather strange mistaken circumstances.

The essence of that is that the Industrial Tribunal was finding, as a matter of fact, that Mr Woolgar made it clear to Mr Smith that he did not intend to resign from the company; that this information was not conveyed to Mr Moore and Mr Richardson and they, in the mistaken belief that he did intend to resign, in fact terminated his employment. The findings are findings of fact and they were found by the Industrial Tribunal on the evidence before them. That evidence did not include evidence from Mr Smith who was not there on the day.

The Appellants, H Turnbull & Co Ltd, represented this morning by Mr Moore as they were at the Industrial Tribunal, want to appeal that decision, as we understand it, essentially on two grounds. The first ground is really summed up by saying two things. Paragraph 10 of their notice of appeal reads as follows:

"10. A reading of the Report of the Tribunal will, we hope, convince the Appeal Tribunal that the above summary [and they have summarised the facts] of the case does justify the Respondents belief that the decision was taken against the balance of evidence submitted."

Mr Moore this morning has sought to persuade us that the evidence that was accepted was unsatisfactory because it was, as he suggests, hearsay evidence of what Mr Smith had said and that they had not appreciated at the time that the Industrial Tribunal was going to take as much notice as they did of what it was said Mr Smith had said. Mr Moore tells us that Mr Smith was only involved as Mr Woolgar's day-to-day supervisor and that matters of continuation or termination of employment were entirely matters for Mr Moore and Mr Richardson.

Mr Moore also tells us that had he appreciated on the hearing before the Industrial Tribunal that the Tribunal was going to take such notice of what Mr Smith was supposed to have said, they would have taken steps to ask for an adjournment and to seek to call Mr Smith to give evidence. They did not, however, ask for that adjournment and the matter proceeded as we have described. Mr Moore urges us to conclude that the Industrial Tribunal gave weight to Mr Woolgar's evidence which they should not have done because he was, as the Tribunal found, confused in certain respects, at any rate, about his evidence. He seeks to persuade us that if his company were given the opportunity, either here or at the Industrial Tribunal, of calling Mr Smith to give evidence then the Industrial Tribunal, or we, might come to a different finding of fact.

We regret to conclude that we do not see that those arguments raise any point of law. The system is that Industrial Tribunals hear the evidence and make their findings of fact and, subject to certain exceptions, the Appeal Tribunal is only concerned with considering whether or not the Industrial Tribunal has correctly applied the law. As I have said, the relevant findings are, in our view, findings of fact and it gives no ground for appeal that the Industrial Tribunal did not accede to an application for an adjournment, which in the event, was not made. Accordingly, on this point, we regret to conclude that there is no point of law to bring before the Appeal Tribunal.

The second matter of substance that appears in the appeal concerns the assessment of compensation. Compensation was assessed to include nine weeks net loss of wages of £125 per week and the Industrial Tribunal found as fact that Mr Woolgar would most likely have had work for that period. There is some suggestion in the notice of appeal that that was a finding of fact that could not stand on the evidence but Mr Moore has very fairly told us this morning that the intention was to find work for Mr Woolgar between 11 November and Christmas. Indeed, it is right to say that that was exactly what he said in the answer that he filed to Mr Woolgar's application before the Industrial Tribunal where he says:

".... the intention was to try and keep [him] employed fully until at least the Christmas/New Year break."

Mr Moore obviously has some concern about the application of the lay-off provisions in the collective agreement but, so far as we can see, this finding of the Industrial Tribunal really has no direct relevance to those procedures. This is simply a finding that, having left the employment of Turnbulls and compensation falling in the circumstances to be assessed, on the balance of probabilities Mr Woolgar would have worked for that period. It does not seem to us that this impinges on the lay-off procedures in the collective agreement at all.

We are sorry, therefore, to conclude that we see no arguable point of law raised by this notice of appeal or by Mr Moore's very courteous arguments and accordingly, the appeal is dismissed under the special procedure.