United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 580_94_2110

Appeal No. EAT/580/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21 October 1994

HIS HONOUR JUDGE J HULL QC

MR P DAWSON OBE

MISS D WHITTINGHAM

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MRS D P MILLER          APPELLANT

CHEF AND BREWER GROUP LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MS PAMELA M R WALSH

(Solicitor)

Messrs L Bingham & Co

4 Carmelite Street

London

EC4Y OBN


 


JUDGE HULL QC: In this case Mrs Miller appeals against the Decision of the Industrial Tribunal sitting at London North under the chairmanship of Mr Heggs with his two industrial members. They sat on 6 January and on 2, 3 and 24 March 1994 and made a most exhaustive enquiry into the complaint which was made to them, of unfair dismissal and sexual discrimination, by Mrs Miller.

Mrs Miller is a lady in her very early thirties and she, as a husband and wife team with Mr Miller, have been running (as employees) since 30 October 1989, a public house known as the Horns Tavern in Barkingside. Unhappily, they fell out. There was unhappiness in the marriage. There were two or three young children and what was eventually arranged, no doubt in a very civilised way, was that Mr Miller should leave.

That, of course, created an obvious and immense problem because what had been run by two might be too much for one, particularly if that one was a lady with young children and the task was a particularly exacting one as it seems to have been. There was difficulty over the volume of trade. There were other obvious difficulties and, of course, there was the domestic problem.

The Respondents, departing from the usual policy, decided that, instead of asking Mrs Miller to go because her husband had gone, or was going, they would give her a trial of running it by herself. They were impressed by her enthusiasm, commitment and obvious sincerity in wanting to do this. And so they gave her a period of probation. It was arranged that she should be on probation for three months.

Most unhappily, in spite of (one is quite sure from all we have read) enthusiastic and hard working efforts to make the thing go, it was not a success. There were all sorts of things which did not go as Mr Black, the Respondents' Area Manager, hoped they would, and in due course, in August 1993 he visited the public house. It says a good deal about it that apparently what he found made him feel somewhat emotional. He had some discussion with Mrs Miller, the painful details are set out, we will not go into them. Eventually, he dismissed her.

There was an appeal. She did not attend the appeal. The appeal appears to have been conducted as carefully as could be and she was dismissed on one month's notice, her probation not having been successful.

There were all sorts of matters of debate and difficulty which arose on the application to the Tribunal. On the face of it, her salary had been reduced, that was relied upon as indicating that there had been sex discrimination and she was being treated less favourably than a man would have been in the same circumstances.

There was a form of contract which had been signed in June, which appeared to ignore entirely the question of probation. That provided for all sorts of procedures and appeals and so on and it was being treated by the Chef and Brewer Group Ltd, the Respondents, and also, apparently, by Mrs Miller herself, as not really governing the matter at all.

Then there were the various defects in the procedure adopted by Mr Black. All these matters were very properly brought to the attention of the Industrial Tribunal and what they had to consider, of course, was whether these various defects and points which were raised made them think that the dismissal had been unfair. As I say, they gave four days to the hearing.

The Decision is immensely careful and goes into a great amount of detail and extends over 15 pages. At the end of all that, they held that there had been a breakdown of mutual confidence here, and that Mr Black had formed the conclusion that, unhappily, Mrs Miller was not able to carry out the task which she had assumed with such enthusiasm. There were aspects of it which she could not carry out. They set out all the unsatisfactory features.

They had to consider whether any of these factors affected the fairness of the dismissal. The central factor was that Mrs Miller knew that she was on probation and if she did not measure up to the required standard of performance she could expect to receive one month's notice to terminate her employment. They set out the visit which I have referred to:

"19(g) .... Mr Black had no reason to believe that there would be any improvement in Mrs Miller's attitude or performance whether the trial period was ended then or at some future date. There was no explanation which she could give him which might cause him to alter his assessment of her capability to manage the public house. There was no obligation for Mr Black to wait until the end of the trial period before giving 1 month's notice to terminate the employment. Mrs Miller did exercise her right of appeal and her appeal was eventually determined in her absence, [and they say of the appeal] .... we have no reason to believe that he did not give full and fair consideration to the reason for her dismissal and the grounds of her appeal. We conclude that the dismissal was not unfair because of the unsatisfactory procedure adopted and, even if it were held to be procedurally unfair, Mrs Miller sustained no loss in consequence of the procedural deficiencies".

They had earlier cited the case of Post Office v Mughal [1977] 12 ITR 130 and what Mr Justice Cumming-Bruce had said in that case about the approach of the Industrial Tribunal where there had been a period of probation. They appear to have followed that in a most commendable way.

With regard to the complaint of sex discrimination, they devoted more than a page to carefully considering what was said about that and the reason why the salary was not so large as it had been. And they speak of Mr Black's genuine wish and, of course, Mrs Miller's, that the experiment should succeed. They say:

"19(c).... We do not find that the respondents treated Mrs Miller any less favourably on the grounds of her sex than they treated, or would treat, any inexperienced manager in similar circumstances. It is the unanimous decision of the tribunal that Mrs Miller's complaint of sex discrimination fails".

It does appear to us that this appeal, which is in our List under the Practice Direction, could only succeed on the basis that the employers reached a conclusion that was manifestly insupportable and perverse, they could not in the circumstances have fairly dismissed her, and secondly, that the Industrial Tribunal in considering all that was said about that, and no doubt very well said by Ms Walsh, again could not have reached the conclusion which they did.

It is certainly not manifest on reading the Decision that there is any error of law there and we have not changed that conclusion even with Ms Walsh's assistance. It seems to us that on all the matters of detailed criticism, there is in fact no appealable and fairly arguable question of law.

We have asked ourselves whether we can say that, in view of all that we have heard, it can be said that this decision of the Industrial Tribunal was one which shows perversity in the sense of being irrational, reaching a conclusion which could not possibly be reached on the evidence which they heard.

Having considered that as carefully as we can, we have come to the conclusion that so far from that, it is an entirely supportable decision, so far as we can see, entirely supported by the evidence, and shows a most anxious attempt to understand and deal with all the evidence and all the arguments which the Tribunal heard. It really will not do to say, and it carries it no further to say, that a differently constituted Tribunal might have reached a different decision or that we might reach a different decision if we were considering the facts on paper. We are not allowed to do that and, as I say, it carries it no further. It appears to us that there is no error of law disclosed here.

In those circumstances, since there is no arguable point of law in the appeal, it is our duty now to dismiss the appeal rather than put the parties to all the expense of a contested hearing and we therefore dismiss the appeal at this preliminary stage.