United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE APPELLANT


 


JUDGE PETER CLARK: The Appellant, Miss Sparks, commenced employment with the Respondent, Mr Hartley, t/a Humana International on 3 February 1997 as a Recruitment Consultant. She entered into a written contract of employment with the Respondent on that date which contained the following material terms:

Holiday Pay:

"6.4. If the Employee leaves their employment part way through the holiday year, holiday entitlement will be calculated pro-rata for each completed calendar month worked from commencement until termination, and deductions from final salary will be made in respect of holidays taken in excess of entitlement.

8.4. An Employee who leaves without giving the required notice or who is dismissed for gross misconduct will not be entitled to receive accrued holiday pay or pay in respect of any notice period up to or after the date of termination."

Competition:

"14.5 The Employee is strictly forbidden from making contacts whether formal or informal, written or oral, to any of the Companies past, current or prospective Clients, Candidates, Contractors or Employees for any purpose other than the legitimate business interests of this Company. Such purpose might include but is not limited to an intention to set up a competing business or work for a rival after terminating this contract with the Company. Any breach of this clause will be considered gross misconduct and may result in dismissal from the Company under the disciplinary procedure.

'Client' means a person, firm or corporate or un-incorporated body in contact with the Company within the last six months of the Employee's employment or for the period of their employment if shorter, for the purposes of obtaining permanent or contract staff and whose name is recorded in the Company's records and is a Client which has not also been registered with a competing business during such period and was not a Client known to the Employee prior to their employment who they introduced to the Company."

By a letter dated 25 May 1997 the Appellant gave notice of resignation. She had a discussion with the Respondent as to the length of notice he required. The contract provided for one month's notice. She wished to leave as soon as possible. Mr Hartley said that he would attempt to accommodate her but he needed cover for the office.

On 27 May it came to the Respondent's attention that the Appellant wished to start work with a new employer, Selective Lifestyle International, a company managed by Mr Simon Hobson, occupying the same building as the Respondent. Mr Hartley took the view that Mr Hobson was a client within the contractual definition and he invoked Clause 14.5 of the contract and terminated the Appellant's employment summarily on 27 May.

On 16 July the Appellant presented an Originating Application to the Leeds Industrial Tribunal, claiming three weeks pay in lieu of notice and six days outstanding holiday pay.

The matter came before a Chairman, Mr C.P. Rostant, sitting alone at Leeds on 18 August 1997. The Chairman considered that the case turned on the question as to whether Mr Hobson was a client of the Respondent at the date of dismissal. He found that he was, relying on the fact that a Mr Morison had signed a business agreement with the Respondent on behalf of Mr Hobson, and that Mr Hobson had interviewed a candidate, referred to in a note from the Appellant to Mr and Mrs Hartley dated 24 April in which she said:

"Simon (Hobson] at Select interested in candidate (Leeds) possibility to use him as franchisee want to discuss rates with you. Speak to him Monday."

Accordingly the Chairman found that the Appellant was in breach of Clause 14.5 of the contract; that the Respondent was therefore entitled to summarily dismiss her and that although the Respondent accepted that the holiday pay claimed was outstanding, she was, by reason of her gross misconduct, disentitled to it. We infer, by reference to Clause 6.4 of the contract read with Clause 8.4.

Against that decision the Appellant appealed to this Tribunal by a Notice dated 16 October 1997. Her grounds for appeal were as follows:

"Key evidence brought forward by plaintiff was a hand-written note from myself to Mr Simon Hobson. The conversation was Mr Hobson expressing his concern that he did not want to be bound by terms and conditions of Humana International and at that point this position had not been clarified by Mrs Claudia Hartley hence my note for Mrs Claudia Hartley to speak to Mr Simon Hobson regarding the terms and conditions. This evidence was produced in court and I had no opportunity to look into the note written and I had no legal representation to argue this point. It is my intention to put a full legal case together at appeal. The background of the note was in fact the opposite of the conclusion the judge came to."

We set out the grounds of appeal in extenso because today the appeal has been listed for an ex parte preliminary hearing. No further grounds of appeal have been forwarded by the Appellant. She has not appeared before us today, but instead has faxed the Tribunal in these terms:

"Dear Sirs

With reference to today's hearing, I must send my sincere apologies for not being present at the court.

Over the past few months I have moved home and the occupants of my previous address have not forwarded my mail to me.

Therefore, your correspondence has been delayed amongst other documents that I have been awaiting, which will explain my absence today.

Again, I send my sincere apologies and await your decision."

We take it from that fax that the Appellant wishes us to consider the case on the basis of the papers before us. We have done so. It seems to us that the Industrial Tribunal Chairman reached a permissible conclusion on the facts as found by him. We have no jurisdiction to reopen factual issues which, at its highest, appears to be the thrust of the Appellant's Notice of Appeal. In the absence of any clearly arguable point of law advanced by or on behalf of the Appellant, we have no alternative other than to dismiss this appeal and we so order.