United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mrs A Akinpelu (in Person)
For the Respondent	Mr M Marklem (of Counsel


 


JUDGE PETER CLARK: The basis on which this appeal was permitted to proceed to a full hearing at a preliminary hearing held before a division of this Tribunal presided over by Mr Justice Morison, the President, on 4 February 1998 was the submission by Mrs Akinpelu that there was no evidence to support certain material findings of fact by the Stratford Employment Tribunal in their extended reasons for a decision in this case dated 18 September 1997. It is a ground for interfering with the decision of an Employment Tribunal if it has made findings of fact unsupported by any evidence. It will be otherwise if the true complaint is that the findings were made against the weight of the evidence, or simply that the losing party thought that his or her version of events ought to be believed. For the purposes of determining this issue a direction was made at the preliminary hearing that the Tribunal Chairman should produced his Notes of Evidence. These are before us.

The Appellant's complaint to the Employment Tribunal was one of unfair dismissal, arising in these circumstances. She commenced employment with the Respondent as a Chef at their Jerusalem Tavern Public House in Britton Street, London EC1 on 25 November 1996. At the time the manager of the public house was Dominic Miles. He remained in employment at the establishment until his employment came to an end by resignation on 28 February 1997. On Monday 3 March 1997 the new manager, Mr Michael Sullivan, telephone the Appellant at home. It was her evidence to the Tribunal that he informed her that she had been dismissed, and that the decision to sack her had come from Head Office. She telephone Head Office and, according to her form IT1, spoke to a lady named Hariet, who we take to be the Company Administrator, Hariet Scott, who told her that they did not know anything about the dismissal.

That verbal dismissal by Mr Sullivan was followed up by a letter of the same dated signed by Mr George Wortley, the Company's Group Operations Director, confirming the dismissal.

The Appellant had not completed the ordinary qualifying period of 2 years service for unfair dismissal protection. However, she put her case on the basis of an inadmissible reason for dismissal, namely asserting a statutory right within the meaning of section 104 of the Employment Rights Act 1996. If she were able to show, the onus being on her, that the reason or principal reason for her dismissal was that she had alleged that the Respondent employer had infringed a right of hers which was a relevant statutory right, then the dismissal would be automatically unfair regardless of her length of service.

We pause to observe that in paragraph 12 of the Employment Tribunal Summary Reasons dated 12 August 1997, which are to be read with the later extended reasons, the Tribunal made no express finding as to whether on Appellant's case, which was that the reason or principal reason was that she had asked for a written statement of particulars of her terms and conditions of employment, but had not received them, it could be said that a breach of s104(1)(b) was made out. Like the Employment Tribunal we do not find it strictly necessary to reach a conclusion on that issue, although Mr Barklem on behalf of the Respondent does not challenge the assumption that a breach would be made out on the case put forward by the Appellant. Nevertheless the first question is what was the reason or principle reason for dismissal.

Before the Employment Tribunal the Appellant was represented by Counsel, Mr Wortley conducted the Respondent's case as advocate and himself gave evidence. In addition the Respondent put before the Tribunal a statement from Mr Miles dated 22 March and a letter from Mr Miles to Hariet Scott dated 22 April 1997. Mr Miles was not called to give oral evidence, neither was Mr Sullivan.

It was Mr Wortley's evidence, recorded in the Chairman's notes now before us, that he himself took the decision to dismiss the Appellant and instructed Mr Sullivan to inform her that she was dismissed. That fits in with the Appellant's case that Mr Sullivan told her that the decision had come from Head Office. Secondly, he said he was not present at Head Office when the Appellant telephoned on 3 August and, on her account, spoke to Hariet Scott. Thirdly, although he later learned from Mr Miles' statement of 22 March that the Appellant had asked for a contract of employment, he was unaware of any such request before taking the decision to dismiss her, and finally, that the reason in his mind for dismissal related to her capability, put shortly he said her work was not up to standard. We should add that although denied by the Appellant, Mr Miles in his letter of 22 April, referred to two warnings which he had given to the Appellant on 8 and 17 January 1997. It appears that the Employment Tribunal accepted that those warnings were given. See paragraph 8(b) of their extended reasons.

The Tribunal accepted Mr Wortley's evidence. They found as a fact that he took the decision to dismiss the Appellant on the grounds of her capability. They found that he was unaware of her requests for written particulars of her terms and conditions of employment. Accordingly the Appellant had failed to make out a s104 reason for dismissal. The complaint was dismissed.

We return to the basis on which this case was allowed to proceed to a full appeal hearing. The sole ground for appeal, we see from the judgement of the President, was whether there was any evidence to support the Employment Tribunal's findings of fact contained in paragraph 8 of their extended reasons. Despite Mrs Akinpelu's best efforts before us we are quite satisfied that there was evidence to support those findings and we have referred to it earlier in this judgment. The only other ground on which the Appellant seeks to upset the Employment Tribunal's decision is that she claims that she asserted a statutory right in relation to non-payment of wages over the Christmas 1996 period. We are quite satisfied that that point was not raised in the form IT1 or in her witness statement or in her evidence to the Employment Tribunal. We shall not permit that new point to be taken here for the first time.

There being no other basis for interfering with the decision of this Tribunal , we shall dismiss this appeal.

COSTS

Having given our judgment in this appeal Mr Barklem on behalf of the Respondent makes an application for costs, Rule 34(1) of the EAT Rules provides where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious, or there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it that thinks fit the costs or expenses incurred by that other party in connection with the proceedings.

This is a case in which the appeal was allowed to proceed to a full hearing, solely on the basis of the Appellant's submission that there was no material on which the Tribunal's relevant findings of fact could be based.

Once the Chairman's Notes of Evidence were made available to the parties, it must have been clear that that argument could not succeed before the appeal tribunal at the full hearing. Letters were written to the Appellant from solicitors by then instructed on behalf of the Respondent; she nevertheless persisted in this appeal which we regard as wholly unnecessary, if not improper or vexatious. At all events we are satisfied that this is a proper case in principal for a costs order to be made Rule 34(1).

We have enquired as to the Appellant's means. She tells us that she is not working and has no means of supporting herself, being entirely dependant on her husband. We believe that a cost order should be made in this case, not least to indicate to others as well as this Appellant that by persuading this Tribunal at the preliminary hearing stage, on a false basis, that there are grounds for appeal, will result in a costs order at the end of the day if that appeal fails. However bearing in mind her limited financial means, we think the proper course is to make an order for costs assessed in the sum of £100.