United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON


 


JUDGE D M LEVY QC: On 8 August 1996 there was received by an Industrial Tribunal an application from Mr Alan Dodgson claiming that he had been unfairly dismissed by M Squared Technology Limited ("the Company") because he sought to assert a statutory employment protection right by bringing proceedings against his employer to enforce his right to be paid.

There was a detailed complaint, which was very nicely set out in a page of manuscript, in which he also claimed redundancy. The answer, which was put in by the employer, claimed that he was made redundant. There was a hearing before an Industrial Tribunal sitting at Exeter on 15 October, where the unanimous decision of the Tribunal was that the application was dismissed.

It is apparent from reading the Extended Reasons that there were two issues before the Tribunal. The first was this: Mr Dodgson an employee or was he self-employed? Having carefully looked at the factors going one way or the other, the Tribunal reached the conclusion that he was a self-employed consultant up to August 1995 and not an employee.

The other issue was whether the Applicant was dismissed for bringing proceedings against his employer to enforce a right, which is a relevant statutory right, or for asserting that the employer had infringed a relevant statutory right, for which a claim would lie under Section 104 of the Employment Rights Act 1996. That turned on oral evidence and the Tribunal heard evidence from the Applicant (the Appellant here) himself, and (for the Company) from Mr Clive Maidment and his wife. Mrs Maidment, a Director of the Company, confirmed her husband's evidence that between them there had been a discussion about the proposed redundancy of the Applicant the day before a conversation the Applicant had with her husband. They had agreed that the Applicant might have to be made redundant because of the perilous condition of the Company. There were conflicting accounts of the meeting between the Applicant and Mr Maidment. The Tribunal say this in paragraph 12 of the Extended Reasons:

"12 There are two versions of a relatively short conversation on 15 April 1996. They do not differ to a great extent, but on a crucial question of the order of various comments made. According to the applicant the conversation at about 6 pm on 15 April was instigated by him. He told Mr Clive Maidment that he was putting his claim for expenses and outstanding pay in the hands of a solicitor. The response on the part of Mr Maidment was that he was to be dismissed because they could not carry on, on that basis. The next day a letter was written by Mr Maidment telling the applicant that he was redundant; there was no reference to solicitors."

Paragraph 13 sets out Mr Maidment's version. It reads as follows:

"13 Mr Maidment's version differs. He says that the meeting was at his instigation although he concedes that that may have been coincidence because they both wanted to see each other. He says that the conversation started off with his announcement that the applicant was redundant. Then the conversation turned to the question of solicitors which was not entirely unexpected. He maintains the reason for dismissal was redundancy."

We should say that the Applicant has told us that he had already put the matter in the hands of his solicitors and therefore suggests that the sentence which reads: "He told Mr Clive Maidment that he was putting his claim for expenses and outstanding pay in the hands of a solicitor" misrepresents the position, but really, in effect, 'putting' his claim for expenses and outstanding pay in the hands of solicitors and 'had put', makes no difference to the sense of what the Tribunal were saying. It was a matter of who instigated the conversation. On that, for reasons which they give, the Tribunal preferred the evidence of Mr Maidment and his wife to that of Mr Dodgson, the Applicant.

We can well understand that a different Tribunal might have come to a different decision, but these were findings of fact, which, on the evidence before them, in our judgment, the Industrial Tribunal were entitled to find and we cannot, even if we thought differently, interfere with those findings.

Mr Dodgson has told us that there was a great deal of evidence which was before the Tribunal which is not reflected in the judgment, but not everything which is said by the parties and not all the documents have to be referred to in a judgment. What there has to be is the finding of appropriate facts with reasoning so that the loser and all who consider the Decision can see why one party has won and why the other party has lost. All that is clearly set out in the Decision from which Mr Dodgson appeals.

Mr Dodgson tells us that he now has further evidence which would affect the credibility of the evidence of Mr Maidment if considered by a Tribunal, but fresh evidence can only be put in under very strict circumstances and none of those circumstances would seem to exist here.

It seems to us that, although we have a great deal of sympathy with Mr Dodgson, this appeal cannot possibly succeed because it is against findings of fact, and the Tribunal below saw and heard witnesses and on the evidence they heard they were entitled to reach their decision.

In these circumstances, it is our duty to dismiss the appeal at this stage.