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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Price v Linkdemo Ltd (t/a 500 Cars) [1994] UKEAT 565_93_2704 (27 April 1994)
URL: http://www.bailii.org/uk/cases/UKEAT/1994/565_93_2704.html
Cite as: [1994] UKEAT 565_93_2704
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At the Tribunal
Before
HIS HONOUR JUDGE J PEPPITT QC
MR T S BATHO
MRS P TURNER OBE
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
For the Appellant MR B LEONARD
(OF COUNSEL)
Free Representation Unit
1st Floor
49-51 Bedford Row
London WC1R 4LR
JUDGE PEPPITT QC: This is the preliminary hearing of an appeal from a decision of the Reading Industrial Tribunal made on 4 June 1993. The Tribunal held unanimously that the Appellant was unfairly dismissed by her employers, the Respondents, but that she contributed to her own dismissal to the extent of 60%. The dismissal was found by the Tribunal to have been unfair, not only on procedural grounds but also because the decision to dismiss her for the grounds relied on was outside the band of reasonable responses which would have been available to an employer in such circumstances.
Mr Leonard, on behalf of the Appellant, challenges the decision on two grounds. First of all he submits that the finding of 60% contribution by the Appellant was perverse and should be set aside. Secondly, he relies upon certain factual matters in relation to the computation of the assessments of the Appellant's compensation. We deal with those matters separately.
The Appellant worked as a controller in the Respondents' taxi office her shift being from 6.00 am to 6.00 pm. The substantial basis of the Tribunal's assessment of contribution at 60% stems from a period of 3 days following the Appellant's birthday on 2 November 1992. On the following day, the Tuesday, she telephoned the duty controller Mr Paul Harris to say that she would not be coming in. The reason that she gave to Mr Harris, the taxi controller, was that she had a headache. She was also due to supervise the day shift on Wednesday 3 November but she neither attended for that shift nor telephoned her employers to say that she would not be doing so.
Her next communication to the employers was at about 5am on the Thursday 5 November, an hour or so before she was due to supervise the Thursday 6 am shift. She telephoned to say that she was coming in to work that day but by then, not unreasonably, the employers had made alternative arrangements and told her it was unnecessary for her to do so. Thereafter the Appellant did not contact the Respondents until she was given notice of dismissal late on Friday.
The Tribunal relied upon the Appellant's failure to notify the Respondents of her failure to attend for work on Wednesday and the reason for it and of her failure to inform the Respondents of her intended date to return to work until an hour before she was due to join the shift on the morning of Thursday 5th November. There was also an incident in which the Appellant apparently forgot that a taxi driver, Mr Sharif, with whom she had had an altercation, was available for work and it was not until he heard work being allocated by the Appellant to a different firm that he put the matter right. We do not attach a great deal of weight to that particular complaint as a foundation for the contribution found by the Tribunal of 60%.
Mr Leonard submits that against that background only a perverse Tribunal could have assessed contribution at 60%. We are unable to accede to that submission. The Tribunal heard the evidence, we did not; the Tribunal were able to form a view of the witnesses that were called before them; and in the light of what they had seen and heard assessed the degree of fault at 60%. That assessment was peculiarly a matter for the Tribunal. In our judgment there was evidence upon which they could reach it and accordingly we have no jurisdiction to interfere.
The next matter relating to compensation upon which Mr Leonard relies relates to a finding made by the Tribunal that within a fortnight of her dismissal the Respondent could have obtained work as a taxi driver. She had been a taxi driver and it was put to her that she had held a taxi driver's badge and had driven a taxi in the past. It was also put to her, and she agreed, that there would be nothing to prevent her getting another job as a taxi driver. In the light of that agreement the Tribunal reached the conclusion from which the Appellant now appeals.
The basis of the appeal, Mr Leonard tells us, is that in fact the Appellant no longer had a badge and had no car. He was unable to tell us whether the absence of a badge or the absence of a car had been the subject of evidence called before the Tribunal, nor understandably, is he able to tell us how long it would have taken the Appellant to obtain a new badge. In those circumstances it seems to us that it would be wrong for us to interfere with the Tribunal's finding. The question of possession of a taxi driver's badge was obviously raised in the hearing and the Tribunal does not suggest that the Appellant then or at any other time said she did not have one; on the contrary, the Tribunal records that the Appellant agreed that there would be nothing to prevent her from getting another job as a taxi driver. She may well have meant by that that she could have obtained in a very short time a renewal of the taxi driver's badge which she once held and that the employment that she would have been able to find would have been employment as a driver of somebody else's taxi, not driving her own vehicle. In those circumstances we are quite unable to say that there was no evidence to support the Tribunal's findings and accordingly that ground of appeal must also be rejected.
Mr Leonard's final ground of appeal was this. That in assessing the Appellant's compensation the Tribunal took her net weekly earnings to be £205 whereas in fact in was agreed between the parties that they were £253. That agreement emerges from page 13 of the bundle before us which is the second page of the Appellants IT.1. In paragraph 7 her average take-home pay is clearly stated to be £253 per week. On page 16, which is the Respondents' Notice of Appearance, in paragraph 6 in answer to the question "Are the details given by the applicant about wages/salary or other payments or benefits correct?" the answer "Yes" appears. So it looks on the face of it, to be clear that the Tribunal made that arithmetical miscalculation.
We think an appropriate way of dealing with it is this. We propose that the Appellant should be given leave to proceed to a full hearing upon that ground alone but that the Registrar be invited to write to the Respondents' solicitors and to the Respondents informing them of our decision on this aspect of the appeal and inviting them to agree with the Appellant a recalculation of her compensation. If within 21 days agreement is reached that will be the end of the matter. If not, the Appellant should be at liberty to proceed with her appeal on the sole ground of the arithmetical mistake said to have been made by the Tribunal. In that event, if she succeeds on the appeal, no doubt the Tribunal entertaining her appeal will give careful consideration to the question of an Order for costs against the Respondents.