United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR P O'BRIEN (Of Counsel) 18a Carlisle Avenue St Albans Herts AL3 5LU
For the Respondents	MR A LYNCH (Of Counsel) Messrs Malcolm A H M Williamson Solicitors 43 West Street Farnham Surrey GU9 7DX


 


MR JUSTICE LINDSAY: We have before us an appeal by Mr & Mrs Peto, erstwhile employees, from a decision of the Industrial Tribunal sent out on 17 April 1996 after a one-day hearing on 13 March 1996. Mr & Mrs Peto (husband and wife) were employed as Steward and Stewardess at the Guildford Masonic Club, the Respondents.

Mr & Mrs Peto claim to have been unfairly dismissed in the following circumstances. Their employment began on 1 February 1993. We note with disapproval that there was no written offer of employment to them and no written contract; it is remarkable these days that that bad habit should still persist. We have no evidence of quite how it came to be revealed to Mr & Mrs Peto that they had been employed by the Club. Quite how it was indicated to them we do not know. Time passed, they having been employed as Steward and Stewardess, and they asked for a rise. It was not acceded to. Who they had negotiated with and how it was indicated that it was not acceded to, we do not know.

In January 1995 they gave oral notice to the Club Secretary, a Mr Hawes, terminating their employment from 26 February 1995. It has not been said to us that Mr Hawes did not have authority to listen to that oral notice or to pass it on. It has not been said to us that that oral notice was not effective. Conveniently, no doubt, for the Club and perhaps also for Mr & Mrs Peto, they agreed to stay on until the Club could find a replacement. We do not know how that was agreed or with whom; if it was with Mr Hawes, it has not been said that he was not in a position to agree that further staying on: anyhow they stayed on further.

On 27 February 1995 the pay rise which had been the cause of the oral notice was at last forthcoming and was back-dated to 1 February. How notice of that pay rise being accepted by the Club was indicated to Mr & Mrs Peto we do not know. It certainly has not been said that it was given to them without authority. Time passed further whilst the Respondents were looking for a replacement, and then, according to Mr Peto, on or about 14 March Mr Hawes said to him and to his wife "I wish you would change your minds and stay on permanently". Mr Peto told Mr Hawes (the Secretary) that he and his wife would need to discuss the matter and asked by what date Mr Hawes needed to know. Mr Hawes told Mr & Mrs Peto that they would need to know by 30 March. On hearing that, Mr Peto said "Okay, but it will only be for a further two years". According to Mr Peto, Mr Hawes then said "that's fine, that is just what I wanted to hear". Also according to Mr Peto, Mr Pettitt who was the Club Treasurer and who was present there, said "better the devil you know".

It is the submission of Mr & Mrs Peto that that represented the agreement on behalf of the Club of a withdrawal of the oral resignation that had earlier been indicated. Mr Peto said that he met Mr Hawes on the evening of 17 March and Mr Hawes said that he was delighted that Mr & Mrs Peto had decided to stay on.

However, despite that background, on 4 April 1995 a letter signed by Mr Pettitt as Treasurer of the Club and by Mr Hawes as Secretary of the Club, and addressed to Mr & Mrs Peto, indicated to them, as the Industrial Tribunal found in their Extended Reasons:

"8. ... the Committee after much deliberation, regretfully have decided to accept your verbal resignation from the position of Manager and Manageress of the Guildford Masonic Club, which with your agreement will take effect from April 30th 1995.

9. Mr Peto said that he believed that Mr Hawes request that he and his wife should retract their resignations and Mr Hawes expressions of delight when they said they would constituted a restoration of the status quo with the result that when the Respondents refused to continue the Applicant's employment beyond 30 April 1995 that constituted a dismissal."

The Industrial Tribunal might or might not have had other points to deal with, but the point became one, largely, relating to the authority of Mr Hawes on behalf of the Club, to accept the withdrawal of the oral notice that had been given. It was a relatively short point.

Paragraph 10 of the Extended Reasons reads as follows:

"Evidence was given, on behalf of the Respondents, to the effect that Mr Hawes did not have authority either express or implied to accept, on behalf of the Respondents, the purported withdrawal of their notices by Mr and Mrs Peto and that the only body having that power was the Committee of the Club of which Messrs Pettit and Hawes were members."

As the matter is such a short point and the Extended Reasons are so short, I shall also read in full paragraph 11:

"Against that background we have to decide whether there was a bi-lateral agreement to the withdrawal of the Applicants' notices terminating their contracts of employment. We accept the evidence, given on behalf of the Respondents, to the effect that Mr Hawes had, in that respect, no authority to bind the Club. Had Mr Hawes, rather than the Club, been the Applicants' employer it seems probable that the offer to withdraw coupled with the expressions of delight would have been construed as a bi-lateral agreement. As it was Mr Hawes did not have authority, in that respect, to bind the Club and there was no evidence of anything having been done by the Club entitling the Applicants to believe that that was so."

On that basis the Applicants' claim alleging unfair dismissal failed, because there had been, on that basis, no dismissal.

The Appellant before us raises points that obviously and necessarily involve the law of agency, and in particular the subject of ostensible or apparent authority. We have been taken to Bowstead on Agency in particular. Article 74 headed Apparent or Ostensible Authority in Bowstead 16th Edition says this:

"Where a person, by words or conduct, represents or permits it to be representated that another person has authority to act on his behalf, he is bound by the acts of that other person with respect to anyone dealing with him as an agent on the faith of any such representation, to the same extent as if such other person had the authority that he was represented to have, even though he had made such actual authority."

We were taken also, both by way of direct citation from the well-known case of Freeman & Lockyer v Buck House Park and from citation from paragraph 8-014 of Bowstead to relevant passages and to the passage in paragraph 8-018 of Bowstead page 369 of the work, where it says this:

"Secondly, where the representation is only of a very general nature and arises only from the principals putting the agent in the specific position carrying with it a usual authority, for example making him a partner or appointing him managing director or using the services of a professional agent be of someone whose occupation normally gives him a usual authority to do things of a certain type e.g. a solicitor."

I do not think I need cite further from the passages to which our attention has been drawn, but what is quite clear is that the Industrial Tribunal was addressed specifically on the subject of authority and on the subject of express authority and implied authority. It heard evidence specifically directed to that subject. I revert to paragraph 10, which I have already read:

"Evidence was given, on behalf of the Respondents, to the effect that Mr Hawes did not have authority either express or implied..."

It is true to say that we cannot see what that evidence was. We have no summary of the evidence given in the Extended Reasons and we have no notes of the Chairman as to the evidence that was heard. We do know, because the Extended Reasons so say, that evidence was given by three people, Mr Pettitt, Mr Shorto and Mr Hawse, on behalf of the Club. The conclusions are stated in the Industrial Tribunal's decision but not the detailed reasoning that led to that.

Is it enough for an Appellant merely to say one cannot see the reasons by which the Industrial Tribunal came to its conclusion? On that subject and related subjects we have been taken both to the well-known case of Piggott Brothers & Co Ltd v Jackson, passages of which are summarised for us in the Respondent's Skeleton Argument. Looking at that, I am dealing here with Lord Donaldson, Master of the Rolls' remarks as to perversity in evidence where he said at page 96:

"In a word, it is impossible or very nearly impossible ever to hold that an answer to a question concerning reasonableness is perverse, unless the court has all the evidence upon which the answer was based."

That, of course, is a remark directed to reasonableness, but it is hard to see how a different conclusion could be applicable where the question is not whether a conclusion is reasonable, but whether there was any evidence to support it.

We had cited to us passages from the case of Martin v Glynwed Distribution Ltd [1983] ICR 511. At page 520 there is a long passage (from letter C to H) on the true functions of the Employment Appeal Tribunal in relation to appeals where facts are put in issue. Although the nature of the evidence heard by the Industrial Tribunal is not made clear to us, because, as I have said, there is no summary and there are no notes, it is hardly the Respondent's fault that there are no notes, and we cannot take it that there was no sufficient evidence merely because it is not recited there in the case. It is incumbent upon the Appellant making this type of case thoroughly to make good his argument. In the absence of Notes of Evidence, it seems to us that he must fail on that ground.

We were referred to the case of Hawkins v Ball [1996] IRLR 258 where Mr Justice Keene and his Members said:

"It is not every case of perversity that is going to require the EAT to have before it a clear view of all the evidence that was cited."

That was a case where the argument of perversity was being advanced on the basis that the facts below were true. One can quite see that where that is the basis of the argument, one does not need to have the Notes of Evidence as a starting point. Here, of course, that is not the form of argument on the Appellant's behalf.

We have already cited the passage from Bowstead paragraph 8-013, and despite Mr O'Brien on behalf of the Appellant saying that that was misunderstood or misapplied by the Industrial Tribunal, we find no support for that proposition. The Industrial Tribunal held there was no authority, express or implied, on behalf of Mr Hawes, and then went on to say there was no evidence of anything having been done by the Club entitling the Applicants to believe that that was so. In other words, there was no holding out by the Club of Mr Hawes and nothing that had sufficient force to entitle Mr & Mrs Peto to think that there had been a holding out.

Although it is a weakness in the Industrial Tribunal's decision in this case that it does not give any summary of the evidence it heard, and to that extent it means that our decision is less informed than it might have been, we must revert to the fact that the onus is on the Appellants here to show an error and, moreover, an error of law. We do not feel able to describe that as emerging from the argument we have heard, and so, although, not unnaturally, an element of doubt must remain where so little is said by an Industrial Tribunal of its reasoning, we must revert to the simple fact that it is not for us to justify some fresh hearing simply against the possibility that there is an error of law; an error of law must be demonstrated before us and we find that it is not. Accordingly we dismiss the appeal.