United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 88_93_0410

Appeal No. EAT/88/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 4th October 1993

Before

THE HONOURABLE MR JUSTICE KNOX

MR R H PHIPPS

MR P M SMITH

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PAYNE PRECISION ENGINEERING CO          APPELLANTS

H J D STEVENS          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants NO APPEARANCE BY OR ON BEHALF OF THE           APPELLANTS


 


MR JUSTICE KNOX: This is an appeal on which nobody appears before us. The appeal is from a decision of the Industrial Tribunal sitting at Truro on the 4th December 1992; it was sent to the parties on the 9th December 1992.

The Tribunal unanimously decided that the Applicant before them, Mr Stevens, was entitled to outstanding holiday pay of £84.24 gross pursuant to the Wages Act 1986.

The appeal is brought by the employers, Payne Precision Engineering Company. There were three grounds of appeal stated in their Notice.

The first is this. It is said in the Notice:

"The tribunal erred in law, it enforced a contract which the applicant had broken, by breaking the contract, the conditions of employment are of no relevance, how can the applicant break his contract and then expect to enforce the broken contract against the innocent and injured party."

That arises from the fact that it is said, and it may, for ought we know, be correctly said, that Mr Stevens left without giving any notice, whereas of course he was under an obligation to give some notice, probably seven days. So the first ground of appeal is that the Industrial Tribunal was wrong to enforce any provision of the Contract of Employment because there was a breach of one of its provisions, namely the requirement to give notice before leaving, by the employee.

The second ground is stated thus in the Notice of Appeal:

"When the tribunal decided it had two conflicting accounts, it failed to hear evidence as to which party was a reliable witness."

That question is a pure question of fact. The Tribunal had two conflicting accounts given in evidence before it and it preferred the account that was given by Mr Stevens to that which was given on behalf of the employer. The employer, represented by Mr Payne, who has been a member of the CID of the Thames Valley Police and has a record of exemplary conduct, is, perhaps understandably, dissatisfied with his evidence not having been accepted as against the evidence of Mr Stevens who does not have such a background behind him. But however that may be that could hardly be more clearly a pure issue of fact which Parliament has entrusted to the decision of industrial tribunals and in respect of which it has not conferred on this Tribunal any jurisdiction at all. It is of course true that there can be cases where an industrial tribunal's decision on a question of fact is so erroneous as to warrant what is called by the law perversity but it is quite impossible in our view for any issue as to which of two witnesses who give conflicting accounts is to be believed to fall into the category of perversity and there is, in our view, no basis upon which we could have any jurisdiction to allow the appeal on the basis that the Industrial Tribunal believed the wrong witness. We express no view of our own as to which witness should have been believed, it is not our business, and we say nothing about that.

Finally, it is said that there was clear evidence of bias by the Chairman and the Notice of Appeal says this:

"when applying for a review because of this bias and the resulting unreasonable decision, the application for review was dismissed by the chairman whose biased and unreasonable conduct we were complaining about, this refusal was unlawful as it is a clear breach of natural justice, and if need be we will seek a judicial review in the civil courts."

On investigation what this appears to reflect is the statement by Mr Payne, which again may perfectly well be absolutely accurate, that during the hearing the Chairman made a certain comment about the practice of requiring employees to do a full twelve months qualification period before becoming entitled to holiday pay. In the application for review on the 14th December 1992 Mr Payne elaborated this on behalf of the Respondent he said:

"Grounds for appeal/review;

1) Prejudicial conduct of the chairman of the tribunal, this case hinges on whether an employee was aware of a condition of employment, namely 12 months being the qualifying period for holiday pay. The applicant stated he was unaware of companies in general having such conditions, the chairman stated he was familiar with the practice but thought it feudal. This remark is hardly that of an unbiased arbiter, I suggest he consider his position."

Now we assume that the Chairman did say that he thought that was a feudal practice, and we take the word "feudal" to mean old fashioned and unjustifiable. That still, in our view, falls a very long way short of showing any sort of bias in any relevant way. The decision that the Chairman took, in line with his colleagues on the Industrial Tribunal, was that as a matter of fact there was no contract to that effect, because although it was the employers' normal practice to impose such terms they had not done so on this particular occasion. That is a finding which is in no way affected by the Chairman's views on the moral validity, or even the industrial relations validity, of such a term in the contract. There is no suggestion that the Chairman either thought or said that any such term would be unlawful and the decision that was come to, as indeed the second ground of appeal clearly shows, was come to purely because, for reasons that seem to it to be good, the Industrial Tribunal preferred Mr Stevens' evidence to that of Mr Payne. We therefore see no basis upon which this appeal could succeed on bias, partly because the Chairman's remarks, assuming them to have been accurately reported by Mr Payne, do not indicate bias, and partly because if that were wrong it still would be a wholly irrelevant item of bias not touching the central question - which witness to believe?

We return then finally to the first ground which was that of a breach of contract. Here again we assume that the fact is correctly stated but the answer seems to us to have been put forward quite accurately by the Industrial Tribunal in dealing with the application to review, which was refused on the 18th December 1992 and sent to the parties on the 21st December 1992. The Industrial Tribunal then said this, in paragraph 3 of that decision:

"3. The second point raised by the respondent is that the applicant walked out without giving notice. The applicant was obliged to give one week's notice unless he was entitled to leave without giving notice by reason of the respondent's conduct. Unfortunately, that is outside our jurisdiction, but may entitled the respondent to set off the resulting loss against our award in any enforcement proceedings in the County Court. That is not a matter for this tribunal."

In our judgment that is right as a matter of law. It is not the law that if one party to a contract breaks any term of the contract then all the other terms necessarily become unenforceable. A failure to give proper notice would not fall, in our view, into that category but it does not involve the employers being without any remedy at all because if Mr Stevens was in breach of contract that is a matter in respect of which any loss that was suffered by Payne Precision Engineering can be recovered in the Civil Courts. We express no view as to whether that would succeed or not but the remedy is undoubtedly there, if the right exists and, unfortunately again for Mr Payne and his Company, Parliament has not seen fit to give the Industrial Tribunal any jurisdiction to hear such claims in breach of contract and for those reasons the Industrial Tribunal seems to us to have been right in saying that, assuming the Respondents were in the right on this point, it still was a matter outside the jurisdiction of the Industrial Tribunal.

For those reasons this appeal will be dismissed.