United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR L STRINGER (of Counsel) Messrs Gadwah & Co Solicitors 245 - 249 Whitechapel Road London E1 1DB


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which Miss Thompson wishes to make against the unanimous decision of an Industrial Tribunal held at Stratford on 24 February 1998 which concluded that she was not dismissed for serving an opting-out notice under sections 101 and 108 of the Employment Rights Act 1996 and accordingly there was no jurisdiction for them to hear her complaint of unfair dismissal as she did not have the requisite period of continuous service.

We take the facts from the decision of the Industrial Tribunal. The Applicant was employed as a sales assistant at the Respondents' shop from 2 December 1996 to 12 August 1997. She was paid one week's pay in lieu of notice on her dismissal.

The Tribunal found as a fact that in June of 1997 the Applicant was invited to a wedding in August of 1997, she wanted to take the Saturday off and also the following Sunday; the position about Sunday working was that when she was recruited she was told that Sunday working would be required on an occasional basis and that this was likely to be every seventh Sunday. In fact, by the time this conversation had taken place, she had only worked on one Sunday.

The employers' normal procedure was that if a person took a Saturday off then they would work the following day, the Sunday. But that did not fit in with Miss Thompson's plans for the wedding. She made attempts to see if she could obtain cover and apparently a person indicated that she would be prepared to cover if she was paid overtime monies. Whatever the detail was, the Tribunal found that the Applicant took Saturday and Sunday, 9 and 10 August, off. She was not covered for the Sunday and, as a result, she was seen when she arrived on Monday morning to be asked why she had not been at work. The shop manager intervened and suggested there should be a more formal meeting about this later in the day and, at about 3 o'clock, that formal meeting commenced.

The Applicant put on the table, as the Tribunal found, a sealed envelope which she subsequently revealed contained a three month's notice opting out of working on Sundays due to religious belief. She asserted that she had checked on her legal rights and that she was acting within her rights to give the notice. The manager, according to the Tribunal, was irritated by this turn of events and, after some heated discussion, she told the Applicant she could lose her job "over this".

The manager took time to consult with her boss, a director of the company, Mr Baker, about what she should do and the following day the dismissal was effected. The question at issue, therefore, for the Industrial Tribunal, was what was the sole or principal reason for the dismissal?

Somewhat unusually, the employers had decided not to call the shop manager, Mrs Harris, but to rely on an affidavit from her together with a signed statement of the assistant manager. Mr Baker himself gave evidence but the decision maker, that is, the person who formally effected the dismissal did not give oral evidence. Counsel on behalf of the Applicant objected to the Industrial Tribunal receiving this written material. The position in law is that the Industrial Tribunal were entitled to receive this written material but its weight was entirely a matter for them.

They decided that they would proceed to hear the case and invited the Applicant to give her evidence first, which she did. Counsel objected to that course but the Tribunal overruled his objection and we do not think that this is a point which is still alive on this appeal. Having heard her evidence and having heard the evidence of Mr Baker and looking at the written material with which they were provided, the Industrial Tribunal arrived at various conclusions. Firstly, that the Applicant wrote out the notice under the Act during the lunchtime after she knew that she was going to be attending a formal meeting. The Tribunal inferred from that fact that it was designed to put pressure on the Respondents so that they did not dismiss her. Miss Thompson told the Tribunal in answer to a question raised by them that she realised that when leaving work on Friday she was taking a calculated risk that her absence would in fact be covered, and they concluded that she was well aware that once the meetings with the Respondents had commenced her job was at risk.

They found, having regard to Mr Baker's evidence and the conversations he had had with Mrs Harris, that he was a tough employer and that if he had been in charge of the disciplinary proceedings Miss Thompson would have been dismissed before she had had an opportunity to produce her notice, because it was his view that the circumstances in which she did not work on that Sunday demanded from her an apology or some reasonable explanation for her behaviour and some element of contrition; otherwise, it was his view, she deserved to be dismissed.

They came to the conclusion that it made little sense for the employers to dismiss Miss Thompson because she had served an opting-out notice and they concluded that that was not the principal or sole reason although it might have been a subsidiary reason, namely, that it caused irritation to the shop manager.

On this appeal Mr Stringer would wish to argue that the Industrial Tribunal erred in law in giving weight to the affidavit and written evidence of the two crucial witnesses for the employers. He says that they ought not to have placed any reliance on the affidavit evidence of Mrs Harris because his Counsel was deprived the opportunity of testing her evidence as to what the true reason was for the dismissal. We consider that that point is not correctly put as a matter of law. It seems to us that as a matter of law the Tribunal were entitled to take into account written evidence and they were entitled to give it such weight as they thought fit.

It seems to us that if, having heard the oral evidence, such as they received, and having regard to the written evidence, they had decided that because of Mrs Harris' absence they were prepared to infer that the reason for the dismissal was the service of the notice, that would have been a decision which could not have been challenged by the employers. Equally, it seems to us that they were entitled, having received the evidence and having heard, in particular, the way the Applicant gave her evidence, that the true reason for the dismissal had nothing whatever to do with the serving of the notice, that that was a 'concoction' so to speak, to protect her position, to avoid her dismissal which she knew was on the cards as a result of her failing to obtain cover for herself during her absence.

In those circumstances it seems to us that this was a decision which was open to an Industrial Tribunal when properly directing itself as to the law and we do not consider that the main point raised on this appeal is fit for hearing at a full, contested appeal. It seems to us, as we say, that on the basis of the material before the Industrial Tribunal, this was a decision which they were entitled to arrive at. Accordingly the appeal will be dismissed.