United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR K DAVIS (Consultant) The Keith Davis Consultancy Victoria House 3 Hova Villas Hove East Sussex BN3 3DH


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether the employers, Crowns Worthing Ltd, have an arguable point of law in a prospective appeal against a unanimous decision of an Industrial Tribunal, which concluded that the employee, Miss Spencer, had been unfairly dismissed.

The brief facts which we can take from the Industrial Tribunal's decision are these: the employee had been employed by the employers as Manager and Hairstylist at their hairdressing salon at Worthing. Her period of employment overall was for a period of ten years - July 1986 - January 1996. She was dismissed on the latter date following an interview with the Director of the Respondent company on 22 December 1995, when he had found letters of resignation from two of his employees. The letter of resignation from Miss Spencer gave nine weeks notice, ending on 24 February 1996 and it contained this sentence "I feel I no longer have the loyalty or commitment to continue working for Crowns Company".

The employers were shocked, so they told the Tribunal, because she had previously given no indication that she was unhappy and had contributed during the previous year to preparing and planning for the opening of a franchise salon of her own in the East Grinstead area. When she was spoken to about these matters on 22 December, she made a cryptic comment to this effect: "I have been advised to say nothing and what I will be doing is my business". Conversation was directed to what she had said in her letter to which I have just referred, and the Tribunal recited the evidence at paragraph 11 of their decision:

"At the hearing, she was asked by Mr Conniford what she had meant by the last paragraph of her letter of resignation. According to Mr Conniford, she replied "It's a feeling I have, and that by giving in my notice, I no longer want to work for the Company. I don't feel faithful or obligated to the Company, but I totally understand how you feel about the wording and I would feel the same if I were you". According to a contemporaneous note (page 9, Exhibit R1), made by Mr Conniford she also said (a) that "it was not an action - just a feeling" and (b) that she would never be disloyal. Mr Conniford said in evidence that he did not understand what she had meant by saying that "it was not an action - just a feeling but he did not ask her to explain. At this Tribunal when asked to explain, she replied "I didn't want to work there beyond another nine weeks, but for those nine weeks I would be loyal and have commitment. I don't know why I didn't say that"."

It was the employee's case that in fact although she had written the note in her letter, she was quite willing to continue to work faithfully and loyally during the remainder of her employment. She had given no cause for dissatisfaction before that time but the employers decided that she should be summarily dismissed and accordingly she was dismissed and her appeal against that dismissal failed.

It seems to us that the essence of the decision of the Industrial Tribunal was to this effect, that it would have been fair for the employers to have enquired of the employee whether she would be willing to undertake the remainder of her duties for them in a faithful and loyal way. If they had asked her whether she would and asked her for a commitment that she would indeed give such service, it was her case that without doubt she would have been able to reassure them. That matter was not fully or properly investigated by the employers and it was that failure which led the Industrial Tribunal to conclude in paragraph 18 of the decision, that their reaction to dismiss her summarily without permitting her to serve the rest of her period of notice, was not "within the band of reasonable responses of the average employer."

Mr Davis, on behalf of Crown, in a succinct submission which has been advanced to us, takes a number of points. He first of all criticises the Tribunal's criticism of the employers of their failure to advise her that she should have been accompanied at the disciplinary hearing by a work colleague. He points out that it was the employer's evidence that they believed that she was aware of the disciplinary procedure which entitled her to such representation and that that explained why they did not draw it to her attention.

It seems to us that the Industrial Tribunal have dealt with the matter having regard to the evidence before them. They are not required to set out all the evidence of the parties. They are required to set out their reasoning and their findings of fact. The fact that this evidence was given, does not mean that it was accepted. Secondly, it was said that the passage in paragraph 17(b) of the decision can be criticised on two grounds. Firstly that the Tribunal have treated the question as to whether the employers believe that she had been disloyal in an incorrect way. They have, so it was argued, treated the case on the basis that the employer had to establish that she had been disloyal, rather than that they believed that she had been. That seems to us not to be a fair criticism of the Industrial Tribunal's decision. The statement "Had he established that she had been disloyal he would have been justified in summarily dismissing her." is barely pertinent to the decision which they had to arrive at. The question did not relate to her previous loyalty to the employers because, as we understand it, that was not in question. The issue was whether the employers could reasonably believe that she was going to be disloyal in the future during the nine-week notice period. The second criticism of that paragraph is that the Tribunal have referred to a decision which they assert is authority for the proposition that the law is concerned with deeds and not thoughts. We make no comment about the ambit of that decision, suffice it to say that we do not accept that it is authority for the proposition as set out in such general terms in the decision of the Tribunal, but again as we read the decision, that related to the previous sentence, which was referring to her past conduct which was not of direct relevance to the issue before them.

The final point which was taken was that the Tribunal were wrong to have criticised the employers for the way they conducted the appeal hearing. It was chaired by a person who had been present at the interview at which the dismissal was effected. The Tribunal were of the view that the employers ought to have put into the chair somebody who had not been so directly concerned, namely another director who was in charge of training. What is said is that the Tribunal have failed to take into account the employer's evidence that the director in charge of training had no previous experience of disciplinary appeals. That seems to us to be a matter of evidence and judgment for the Industrial Tribunal, although we for our part would not put much weight on the reason which they give at paragraph 17(c), in arriving at our conclusion that the substance of this matter was the employer's failure to stop and think before they dismissed the employee.

What would have been appropriate, probably, in the circumstances of the case, if the employers were concerned about the future commitment of their employee, was to have paid her monies in lieu of notice, rather than requiring her to serve out her period of employment. That is what a fair employer would have done we think in the circumstances.

As a result of acting over hastily as the Tribunal have described it, the employers have had to pay a further payment of just under £1,500 by way of a basic award. We hope that the employers will in future take heed of the warning implicit in this case, that more consideration should be given to the question whether an employee should be dismissed before the dismissal is effected.

For the reasons that we have attempted to give, despite the arguments of Mr Davis, we are not persuaded that there is an arguable point of law and accordingly the appeal will be dismissed.