United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D McCARTHY (of Counsel) Messrs Moss Beachly, Mullem & Coleman Solicitors 37 Crawford Street London W1H 1HA


 


JUDGE PETER CLARK: This is an appeal by the applicant, Mrs Blanton, against a decision of the London (North) Employment Tribunal sitting on 14^th May 1998 (Chairman: Mr G W Rice), whereby the tribunal upheld her complaint of unfair dismissal against the respondent, London Elizabeth Hotel, but held that she was not entitled to any compensation. It is against that latter finding, contained in a decision with extended reasons promulgated on 3^rd July 1998, that the appeal is brought. For the avoidance of doubt, time for appealing runs from the date on which the decision was promulgated, that is 3^rd July 1998, and the original Notice of Appeal in this case, dated 10^th August 1998, was therefore in time.

The appeal first came before a division of this tribunal (Charles J presiding) for preliminary hearing on 13^th January 1999. That hearing was adjourned in order to allow the appellant to lodge amended grounds of appeal and then for the respondent's comments on those new grounds to be obtained. That has been done and the appeal is now restored for preliminary hearing before us and Mr Cottle has appeared on behalf of the respondent at the invitation of the tribunal made on the last occasion and has made some submissions.

Background

1. We are concerned with a family run hotel. At the relevant times the managing director was Mr Peter Newman. The appellant, Mrs Blanton, is the sister of Peter Newman and was employed at the hotel as head housekeeper. Her husband, John Blanton, was employed as general manager at the hotel until his dismissal for alleged misconduct on 4^th July 1997. Mr Blanton is the brother of Mrs Karen Newman, the wife of Peter Newman, who was herself the company secretary.

Dismissal

2. A question arose as to whether the appellant had resigned or was dismissed. On 4^th July 1997 Peter Newman wrote to the appellant, that is the same date on which he dismissed Mr Blanton, stating that since she had been absent for one month without explanation he was treating her as having resigned. The tribunal found that she was, by that letter, dismissed, and that her dismissal was unfair in the absence of any proper disciplinary hearing on notice to her. The real question was what remedy, if any, she was entitled to.

Compensation

3. The appellant had a history of warnings. On 16^th August 1996 Peter Newman warned her about her drinking alcohol in the hotel. On 28^th February 1997 he gave her a final written warning about drinking alcohol on the hotel premises. The appellant also had a history, so the tribunal found, of ordering bottles of wine to be sent to her house or that of her mother from the hotel by taxi.
4. On 27^th February and 24^th April 1997 meetings of the managers took place. The tribunal was faced with conflicting sets of minutes presented in evidence by the respective parties in relation to those meetings. In the respondent's minutes of the February meeting there was a paragraph headed 'C. Absenteeism' dealing with the procedure for employees to give notification of absence from work. In the appellant's version that paragraph was missing and the subsequent two paragraphs were re-lettered C and D.
5. A further reference to staff notification of absence appeared in the respondent's minutes of the April meeting. Again that reference did not appear in the appellant's version.
6. Faced with this conflict the tribunal concluded that the appellant's version of the minutes had been falsified by Mr Blanton, who was computerate, to the knowledge of the appellant.
7. The appellant went off work on 3^rd June, shortly after her husband was suspended on 29^th May. She did not contact the hotel about her absence. At about that time Mrs Newman Sr., the mother of Peter Newman and the appellant, was unwell. Her doctor was considering moving her to hospital.
8. On 5^th June Peter Newman enquired of his managers whether anyone had heard from his sister concerning her failure to attend work. No message had been received from her.
9. During the following week Peter Newman visited his mother daily in hospital. She was improving and hoped to go home and asked her son whether the appellant could look after her at home. He agreed, if that was what the appellant wanted, as she appeared to him to have abandoned her job at the hotel. He was prepared to pay the appellant for looking after their mother. Later, his mother told him that the appellant had declined that offer.
10. On visits to his mother's bedside Peter Newman never encountered the appellant.
11. Having received no word from his sister he wrote the letter of 4^th July, held by the tribunal to be a letter of dismissal.
12. It was the appellant's evidence that she wrote to her brother on 11^th July. She produced a copy of that purported letter. Mr Newman denied having received it. The tribunal concluded that that letter was never sent.

Contribution

13. On those facts the tribunal held:

(1) that having regard to the fact that she was under a final written warning, and her absence since 3^rd June without notification to Mr Newman coupled with his having not been able to seek an explanation from her in the matter of taking some wine on 28^th March, the appellant had contributed to the extent of 100% to her dismissal and was not entitled to a basic award under the provisions of s.122(2) of the Employment Rights Act 1996.

(2) that she had similarly contributed to her dismissal for the purpose of a compensatory award (see s.123(6) of the 1996 Act) and further that having attempted to mislead the tribunal by producing two false sets of minutes it would not be just and equitable to make any compensatory award (see s.123(1)).

The Appeal

14. Mr McCarthy, with admirable conciseness, has put his appeal in this way. He accepts that it was open to the Employment Tribunal to find that the appellant had contributed to her dismissal to the extent of 100% for the purpose of extinguishing any entitlement to a basic award under s.122(2). However, he focuses his complaint on paragraph 29 of the tribunal's reasons:

"29 As far as compensatory award is concerned her contribution was the same, but here we also take account of the attempt to mislead the Tribunal by the production of two false sets of minutes and we decide that it would not be just and equitable to make any compensatory award to the Applicant."

15. Mr McCarthy submits, and we think this is at any rate arguable, that it is not permissible for the tribunal to take into account, either for the purpose of considering contribution under s.123(6) or in relation to the question of what compensatory award is just and equitable under s.123(1) (see Soros v Davison [1994] ICR 590), events which occurred after dismissal. The false sets of minutes were produced at the Employment Tribunal hearing.
16. However, that submission is only of value if we further accept, as Mr McCarthy contends, that the tribunal took into account the production of the false sets of minutes at the tribunal hearing, when considering whether or not the appellant had contributed to her dismissal for the purpose of s.123(6). It is here that we think his submissions fails.
17. In our judgment, paragraph 29 can be split into two. First, the tribunal found on the basis of the same factors set out in paragraph 28 in relation to the basic award, that the appellant had similarly contributed to her dismissal to the extent of 100%, thus extinguishing any compensatory award. They then made a further and separate finding that it would not be just and equitable under s.123(1) to award any compensation, in any event, on the basis of the appellant's conduct at the tribunal hearing.
18. Whilst we accept that may arguably be an error of law, we shall not permit this case to proceed to a full appeal hearing because that limited ground becomes academic in circumstances where we uphold the finding of 100% contribution extinguishing the compensatory award as was also found in relation to the basic award.
19. For these reasons, this appeal must be dismissed.