United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR B BURGHER (of Counsel) Instructed by: Mr H Batra Messrs Batra Solicitors Kingsland House 122-124 Regents Street London W1R 5FE


 


JUDGE HAROLD WILSON: This is the preliminary hearing of a proposed appeal against the finding of an Employment Tribunal that the applicant had not been unfairly dismissed.

The applicant had worked for some considerable time for the respondent Partnership and he says he was dismissed without reason. Subsequently, the respondent told the applicant by letter that the reason was because he had been guilty of what was described as 'gross misconduct'. The applicant denied both of the allegations comprising the alleged gross misconduct. The tribunal, in due course, found that the respondent had not dismissed the applicant in any case, and that therefore the applicant's application failed.

It is perhaps significant that each side changed its ground quite radically between the presentation of the complaint and the appearance, and the evidence which was given on each side to the tribunal.

The tribunal's decision and the extended reasons for it was a lengthy document extending to 12½ pages of A4 typescript. In paragraph 2 the tribunal stated that:

"… the Applicant's case that he was dismissed by Mr Warner [of the respondent Partnership] on 1 May 1998."

In paragraph 4 the tribunal observed that:

"The Applicant's case as given in evidence differs from the version in paragraphs 2 and 3 of box 11 of his IT1 in that he no longer alleges that he was dismissed by Mr Warner during the meeting but he alleges that the dismissal occurred immediately after the meeting …"

and the tribunal relies on the use of the words by Mr Warner "Gerald is leaving" and the fact that "he picked up the appointment book and scored off all the all the Applicant's appointments with a pen." Paragraph 5 goes on to state that:

"The Respondent's initial case was that it had dismissed the Applicant and that the dismissal was fair by reason of the Applicant's misconduct. Its present case is that it had not dismissed the Applicant, that the Applicant had resigned or voluntarily terminated his employment with the Respondent. Alternatively, if the Tribunal were to find that the Respondent had dismissed the Applicant (which is not conceded), then it is conceded that the dismissal was procedurally unfair but the damages should be reduced because the Applicant by his conduct had wholly or substantially contributed to his dismissal."

In paragraph 6, which we regard as the crucial paragraph of the decision, the tribunal stated that:

"The central and crucial issue, and the only issue with which the Tribunal is concerned in this decision, is whether the Respondent's (or to be more precise, Mr Warner's) conduct towards the Applicant and the words used by Mr Warner at the meeting on the afternoon of 1 May 1998 amounted to a dismissal of the Applicant within the meaning of section 95(1)(a) of the Employment Rights Act 1996. …"

We emphasise that quite clearly there the tribunal is directing itself that it has to have regard to the conduct and the words used. The tribunal goes on to state:

"This is not a "constructive" dismissal case under section 95(1)(c) of the 1996 Act because the Applicant is adamant that he did not terminate his own employment. …"

There then came the letter in May 1998 referring to the act of gross misconduct and that is set out in the decision together with the second letter of 18^th September 1998 and then a reference to witnesses who gave evidence on both sides. The respective versions of each side are summarised in the course of the decision. Paragraph 16 sets out the relevant statutory provision quite properly and thereafter there are summarised the final submissions made on behalf of each side.

The tribunal's decision begins at paragraph 19. It starts by finding that the so-called gross misconduct was a side issue. It goes on in subparagraph (2) to state that:

"The issue is one of credibility. The Tribunal did not find either Mr Warner or the Applicant to be entirely credible."

The tribunal approached Mr Warner's evidence with particular care because of the volte face in his case. The tribunal went on to state in subparagraph (4):

"Leaving aside the credibility of Mr Warner's version of the events of the afternoon of 1 May 1998, even if the Tribunal were to wholly accept the Applicant's version of the events, it has not been established that Mr Warner by his conduct or words at the afternoon meeting had unambiguously dismissed the Applicant. It is significant that, on the Applicant's own evidence, the word "dismissal" only came up early on in the meeting when Mr Warner allegedly said that the Applicant's work … did not improve in three months he would be dismissed. That did not show any present intention … to dismiss the Applicant … It is the Applicant's own evidence that the word dismissal, or like words (e.g. "you are sacked") were never used by Mr Warner during the meeting. Reliance is placed by the Applicant solely on Mr Warner's alleged remarks to the staff after he opened the door, to the effect "Gerald is leaving" and his actions in putting a line through the Applicant's appointments. Those remarks were immediately preceded by an exchange between Mr Warner and the Applicant with Mr Warner saying "If you don't like it you know what you can do" and the Applicant replying "Yes, I know what I can do". In the context of the meeting the remarks "Gerald is leaving" did not amount to an unambiguous dismissal. [That is a finding of fact, which we are not entitled to go behind.] If Mr Warner had not given some indication as to whether the Applicant was being dismissed or not, it is surprising that the Applicant did not say anything at that point, e.g. "What do you mean I am leaving? Are you sacking me?" Depending on the context, the alleged remark "Gerald is leaving" is equally capable of meaning that the Applicant was leaving of his own choice, i.e. resigning."

The tribunal continued in paragraph (5):

"This was not a heat-of-the-moment resignation or dismissal. … It might well have been the case that Mr Warner was happy to see the Applicant go, but that did not necessarily mean that he had dismissed the Applicant …"

In subparagraph (7) the tribunal concluded:

"… it has not been established that there had been a dismissal. …"

The Notice of Appeal sets out three grounds:

(1) The tribunal erred in law in failing to make a finding of fact in relation to the conflicting version of events.

(2) The tribunal applied an incorrect legal test in stating that there was no unambiguous words of dismissal it was not established that there had been a dismissal. Although it was conceded that the applicant had to establish that there was a dismissal.

(3) It was alleged that the decision was perverse.

It seems to us from a reading of the lengthy decision that what was the root of the problem on the day in question was a professional disagreement, apparently arising out of what the Employment Tribunal found was a side issue. Each side appears to have been inconclusively manoeuvring for position. Whether that is so or not, is a matter which does not concern us. The Employment Tribunal found that the fact of dismissal was not established. The tribunal made that finding because the facts disclosed by the evidence were equivocal. We can find no merit in either the first or the third ground of appeal and as to ground (2) we consider that upon full argument it would have no prospect of success. Accordingly, we dismiss this appeal.