United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 341_95_0410

Appeal No. EAT/341/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 4th October 1995

Before

THE HONOURABLE MR JUSTICE MORISON

MR R D COWAN BA

MR R JACKSON

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MRS S GRAVES          APPELLANT

BARNADOS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MISS F HARDING

(of Counsel)

Ms R Karavadra

Harehills and Chapeltown Law Centre

263 Roundhay Road

LEEDS

LS8 4HS


 


MR JUSTICE MORISON: Mrs Graves was employed by Barnados, which is a well known charity, from January 1991 until she ceased her employment with them in circumstances which I shall briefly outline.

She was a fund raiser working under Mrs Willimott who was the area manager, who was also responsible for managing another fund raiser. The circumstances which led to the termination of her employment are recited by the Industrial Tribunal and do not need to be amplified by me. However, I can take up the story at a stage where the parties, that is Mrs Willimott and the applicant Mrs Susan Graves had fallen out. They had had a meeting, their relationship appeared to be back to normal but it appeared that it was breaking down again.

What then happened was that on 2nd February 1994 Mrs Fearnley who is Mrs Wrights secretary, Mrs Wright being more senior to Mrs Willimott, said that she took a telephone call from Mrs Graves's partner, and the terms of that telephone call are set out in paragraph (i) of the Tribunal's decision at paragraph 2 on page 16 of our file. In brief terms what Mrs Graves's partner is alleged to have told Barnados was that Mrs Graves had "`done a runner' and she could not take any more." According to Mrs Fearnley, whose evidence was accepted by the Industrial Tribunal, the partner said that he did not know where she had gone to.

Subsequently, on 7th February 1994 the partner telephoned Barnados again and spoke to Mrs Willimott. It appears, according to Barnados, that in that telephone conversation again the partner of Mrs Graves said that he did not know where she was and had not spoken to her. The following day on 8th February 1994 Mrs Graves's partner apparently went to the Barnados offices, spoke to Mrs Willimott and according to her, told her that Mrs Graves was in Marseilles. There was a dispute about all these conversations in evidence at the Tribunal, but as was their right the Tribunal elected to accept the evidence of the Barnados' witnesses in preference to that of Mrs Graves's partner and Mrs Graves's son.

Accordingly on 9th February 1994, according to the Tribunal and it appears to be common ground, Mrs Willimott then prepared a letter. In that letter addressed to the applicant she said:

"Not having heard from you for a week now and following Richard's telephone call saying you had gone away but he did not know where, I am becoming extremely concerned about your well-being.

Please get in touch as soon as possible - it is imperative that we speak to you before Wednesday, 17 February. If you do not want to telephone me, please feel free to contact either Janet Wright or Pat Fearnley.

I do hope that by the time you receive this letter you will be feeling much better and look forward to hearing from you."

The evidence which the Tribunal accepted, as they were entitled to, shows that that letter was delivered to Mrs Graves's home on Wednesday, 9th February 1994. Nothing more was heard from the applicant or anyone on her behalf and accordingly on 17th February 1994 Barnados sent the applicant a letter saying:

"I would refer to Pam Willimott's letter dated 9 February in respect of your prolonged absence from work. As we have not heard from you since Wednesday, 2 February, and as you have failed to present yourself for work, we must consider your employment with Barnados at an end with effect from Monday, 7 February 1994."

Again, the evidence, which the Tribunal accepted as they were entitled to, was that this letter was delivered to the applicant's home on 17th February 1994.

Apparently the applicant returned from where she had been, which was in London, to her home on 19th February 1994, and she in effect sought to continue her employment.

The Tribunal therefore had to concern themselves with what appeared to be two issues, but it had boiled down to one. The two issues were originally whether there had been a dismissal. But at the hearing, it was accepted by Barnados that what had happened constituted a termination by them of her employment. The second issue was a live one, namely, whether in all the circumstances the dismissal was fair or unfair.

The Tribunal considered that the dismissal decision taken by Barnados was for a reason falling with Section 57(2) of that Act, and went on to consider the provisions of Section 57(3) and concluded that dismissal was within the range of reasonable responses of an employer in the circumstances with which Barnados was faced.

The applicant wishes to appeal from that decision, and the purpose of this hearing is to determine whether her Notice of Appeal supported by a full and comprehensible skeleton argument raises an arguable point of law fit for a full hearing by this Court.

We have to say straight away that in our judgment there is no point of law that we can identify in this case. The question as to who the Tribunal did or did not believe was essentially a matter for them, and we cannot interfere with it. We do not have facilities for seeing and hearing witnesses, and we must abide by the Tribunal's judgment of fact, provided that they have not acted perversely and we can see no grounds for believing that they have on that issue.

Secondly, we should say that it is for the Industrial Tribunal to decide whether dismissal was or was not within the band of reasonable responses of an employer. We can only interfere if it can be established on the facts that there is an arguable case that the Tribunal were perverse in the decision that they arrived at, namely that no reasonable Tribunal could have concluded that an employer could reasonably have dismissed in the circumstances outlined.

It seems to us that that is going too far, although we recognise that in certain circumstances pertaining here some employers might have taken a rather different course from that taken by Barnados. That is not the same thing as saying that Barnados have behaved unreasonably in the circumstances, that is merely to make clear that the band of reasonable responses included behaviour by Barnados but would also would have included different behaviour by a different employer which might not have led to a dismissal in the circumstances of this case.

We have to say that we are not impressed by an argument which seeks to concentrate on what the precise reason was, that is the label applied to the reason for the dismissal. It was plainly in the circumstances a mixture of reasons, and we do not consider that the Industrial Tribunal have in any way misdirected themselves in the wide test to be applied under Section 57(3) whatever the reason or label may have been.

Accordingly, we are not, we regret, persuaded that there is an arguable point of law fit for hearing before a full Tribunal, and accordingly we must dismiss this appeal.

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MR JUSTICE MORISON: Miss Harding I am sorry that we have not been able to accommodate you in this case, but I can say that we are grateful for the comprehensive written skeleton argument and for the way you have dealt it. I do not know whether you prepared it yourself?

MISS F HARDING: Sir, I did. I was in difficulties because I did not attend the initial hearing. I was bound by the grounds of appeal that I would not have necessarily have taken.

MR JUSTICE MORISON: I follow that. I would just like the Law Centre to know that we are assisted by diligent work which very often is done there.