United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS S GARNER (of Counsel) MESSRS BREEZE & WYLES Solicitors 114 Fore Street Hertford Herts SG14 1AG
For the Respondent	MS V VON WACHTER (of Counsel) MESSRS GODINGTON FARM Bicester Oxfordshire OX6 9AF


 


HIS HONOUR JUDGE C. SMITH QC: This is an appeal by the employers, Robert Vardy Limited, against the decision of an Industrial Tribunal held at Bedford on 11 February 1998 of which extended reasons were sent to the parties on 17 March 1998 whereby, by a majority decision, the Chairman dissenting, the Industrial Tribunal held that the Applicant before them, Mrs Margaret Davidson, had been unfairly dismissed by the Respondents. Putting the matter shortly, the majority of the Industrial Tribunal held in paragraph 11-13 of the decision that at a meeting at Mrs Davidson's home on Friday 3 October 1997, Mr Vardy, the proprietor/director of the Appellants summarily dismissed Mrs Davidson, a long standing employee, by the majority of the Industrial Tribunal holding that the words used by Mr Vardy (taken as whole as they put it on that occasion) were unambiguous words of dismissal by Mr Vardy of Mrs Davidson. The majority went on to hold in paragraphs 12 and 14 of the decision that the words spoken by Mr Vardy were not spoken in the heat of the moment but rather as the Industrial Tribunal put it in paragraph 12 :-

"The majority believed that this was in the mind of Mr Vardy when he went to her home and in their view had been agreed by with Mrs Baggs and Mr Pike. This was not a heat of the moment conversation that got out of hand on the part of Mr Vardy".

The words were not spoken in the heat of the moment and accordingly, distinguishing the case from Martin v Yeoman Aggregates Ltd [1983[ IRLR 49, a subsequent visit by Mrs Baggs, a director of the Appellants, to Mrs Davidson purporting to withdraw the dismissal and requesting that Mrs Davidson return to work could not remedy the situation or amount to a withdrawal of the unambiguous words of dismissal.

Accordingly the majority found that since Mrs Davidson had no opportunity to respond to her instant dismissal, the dismissal was self-evidently unfair. The Chairman on the other hand concluded that no words of dismissal were used and the words used would not have been understood by a reasonable employee as being words of dismissal, thus he would have held that no dismissal had occurred. Alternatively if it could be said that ambiguous words of dismissal had been used, the Chairman would have held that applying the reasoning in Martin v Yeoman which he did not find completely in point, any words of dismissal were spoken in anger and were immediately withdrawn with the result that there was no dismissal.

Before we consider and rule upon the submissions advanced to us on the appeal by Counsel on each side, we should record that the facts found by the majority are clearly, and, in our judgment, carefully set out in paragraph 3(i)-(xii) of the decision. We also note that in paragraph 4 the Chairman summarises the respects in which he differed from the majority on their findings of fact. The Industrial Tribunal then rehearsed the submissions made to them in paragraphs 5-9 inclusive of the decision. The majority conclusion as we have summarised above are at paragraphs 11-16 of the decision and the Chairman's conclusions are at paragraphs 17-20.

We regard the decision as showing all the indications of having been carefully considered with considerable attention to detail, with a clear exposition of the findings of fact and the conclusions of the Industrial Tribunal and we do not consider it necessary or appropriate to repeat such findings and conclusions in this judgment since reference can be made to the decision itself.

We turn therefore against that background to consider the submissions made to us. We express our conclusions on each submission as we go along. We have been greatly helped by the very concise submissions made by Counsel and by the no nonsense approach, as we would categorise it, to the issues arising on this appeal displayed by both Counsel (which was a great assistance to the Tribunal). It is submitted to us first and foremost that it was incumbent upon the Industrial Tribunal, in order to decide whether the words used were or were not unambiguous words of dismissal, to take into account not only what words had actually been spoken in their immediate context at the moment of the alleged dismissal, and not only what had led up to such an event, but also, and this is the main point taken on appeal, the subsequent events. Thus it is submitted that in deciding whether the words were ambiguous or unambiguous words of dismissal, the Industrial Tribunal should have thrown into the scales its findings at sub-paragraph 3(ix)-(xii) and that in failing so to do, they erred in law and that accordingly the matter should be readmitted to a fresh Tribunal. That was the essential argument and the primary argument on the appeal as we understood it.

In our judgment however, it is sufficiently clear, in what is a difficult area, from BG Gale Limited v Gilberts 1978 ICR 1149 and the Court of Appeal decision of Southern v Frank Charlesley & Co [1981] IRLR 278 that at least where the words used are unambiguous words, either of dismissal or resignation, it is the words alone which are decisive of the issue and actions taken by the parties afterwards, short of waiver of some kind, are irrelevant. In our judgment, that is the law on this topic and that is the approach which the majority of the Industrial Tribunal faithfully followed in this case. In reaching this conclusion, we would distinguish the case of J&J Stern v Simpson [1983] IRLR 52 where the words "go get out get out" were regarded in that particular case as being ambiguous so that all the relevant surrounding circumstances, both preceding and succeeding the uttering of the words were held to be relevant to their meaning and the appeal was allowed on that basis. That in our judgment is a different situation from that in the instant case on the present appeal. So we find that we reject that important ground of appeal.

Next it is submitted that the Industrial Tribunal erred in law or reached a perverse finding in concluding that Mr Vardy intended to dismiss Mrs Davidson when he went to her address on 3 October 1997 since it is submitted that there was no evidence sufficient to support such a conclusion. However, in our judgment, having seen and heard the Appellant's witnesses, namely Mr Vardy, Mr Pike and Mrs Baggs, the Industrial Tribunal were amply justified and entitled as an Industrial Tribunal making findings of fact to make the findings that they did with regard to the state of Mr Vardy's mind and what his intention was in seeking out Mrs Davidson on the occasion of Friday 3 October 1997.

In our judgment, the finding of intention on the part of Mr Vardy to dismiss Mrs Davidson did not conflict with the findings of fact made by the Industrial Tribunal as to what happened after Mr Vardy returned to the office. The Industrial Tribunal did not express any conclusions as to those findings of fact. In our judgment they were under no obligation to do so and on this we agree with Counsel for the Respondent's submission. In our judgment they were fully entitled to reach the conclusion that they did about Mr Vardy's intention and state of mind based upon the events leading up to the fateful meeting on 3 October 1997, which they carefully evaluated, and on their explicit and detailed findings relating to what had been said and done at that unfortunate meeting. They were under no obligation, we repeat, to arrive at legal conclusions about the findings they made as to what happened later in the day in our judgment.

Finally it is submitted, perhaps the opposite side of the coin or part of the same coin at any rate with regard to the submission we have just dealt with, that the majority misapplied or rather failed to apply the principle set out in Martin v Yeoman Aggregates Ltd. However in our judgment, with respect to the decision, that case ought to be regarded as very much the exception rather than the rule. We would simply state that it is plain from the decision itself that it is based entirely upon and limited to circumstances where words of dismissal have been spoken without reflection and in the heat of the moment, perhaps in a fit of temper or something of that kind. In the instant case on the other hand, the Industrial Tribunal had reached a clear conclusion based upon proper inferences from direct evidence and legitimate findings of fact that Mr Vardy was not acting in the heat of the moment in dismissing Mrs Davidson but rather had the intention of doing just that when he went along to her house on 3 October 1997, such is apparent from paragraph 12 of the decision and it is plain from paragraph 14 and the reasoning in that paragraph, that this was the basis of the majority of the Industrial Tribunal not applying the exceptional rule (as we would so categorise it) in Martin v Yeoman Aggregates Limited.

At the end of the day, skilfully although the arguments were deployed by Counsel for the Appellant, we have concluded that Counsel for the Respondents on this occasion is right in reminding us of the well known cases she cites in paragraph 22-24 of her skeleton argument and in her characterisation of this appeal as being an attempt to dress up questions of law what were in reality questions of fact which have been properly decided by the Industrial Tribunal and adversely to the Appellants. We find that the majority were justified in concluding that the words of dismissal here were unambiguous and that they were intentionally spoken, not in the heat of the moment, with the result that there was a dismissal which was both unfair and which could not be retracted, so that for those reasons this appeal is dismissed.