United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Brown (Of Counsel) ELAAS


 


MR JUSTICE HOLLAND:

1. By an IT1 dated 30 November 1998, Mrs Helen Maine raised a complaint against Broadgate Printers Ltd alleging unfair dismissal and breach of contract. That complaint came before an Employment Tribunal sitting at Norwich on the 26 February 1999. After a hearing on that day a decision was subsequently sent to the parties, accompanied by extended reasons, the date of that decision being the 21 April 1999. The decision was in these terms:-

"The unanimous decision of the Tribunal is that he applicant was unfairly dismissed. Remedy will be dealt with on a date to be fixed. Any basic or compensatory award will be reduced by 25% by reason of the applicant's conduct. The counterclaim is dismissed upon withdrawal".

2. Against that decision, there has been mounted an appeal by Broadgate Printers to this Tribunal. That appeal was supported by an additional document prepared by the appellants themselves, but this morning they have had the advantage of representation by Mr Brown, through the ELAAS Scheme.
3. Mr Brown's first task was to identify to us the point upon which the appeal now proceeded; it is our task to consider whether that point raises an arguable point of law. If it does so, then the course open to us is clear: we have to adjourn this appeal so that it may be the subject of an inter-partes hearing. If by contrast we cannot discern any such point of law, then it is our task to say as much, and thereafter to dismiss the appeal. We emphasise that this Tribunal only has jurisdiction with respect to points of law.
4. Turning then to the matter identified by Mr Brown, it involves reference to certain passages in the extended reasons. The first such passage relates to a part of the fact finding exercise conducted by this Tribunal, that is in paragraph 6:-

"Mr Gepp telephoned Mrs Filby who caused Mr Gepp, by what she said, to think that the applicant had shown her the letter as well. Mr Gepp was clearly upset and telephoned the applicant at home. He told her that Mr Halms had resigned and used words along the lines of: "You have really done it this time. I can't let you get away with this. I don't know why you do this to me". He went on to say that he could not let her come into work anymore as she had betrayed his trust. She replied words to the effect: "I suppose that I should now look for another job". He responded: "What do you want" and she replied to the effect that her contract said six weeks notice. He said that he could not afford that and pay for her replacement. She said that that would put her in great difficulties because she needed to earn money for her various commitments. She persuaded him to allow her to return to work her notice but he said that she should not work on the Thursday, to allow dust to settle. She thought about the conversation and realised that there would be great difficulty in her working her notice with the atmosphere that would be generated and returned various items back to the office long after it had closed and left a note for Mr Gepp saying:

"Herewith backups and office key. I have removed my glasses and toilet bag. You may be correct in asking me not to come into work on Thursday. Time can be better spent job hunting".

She went to the C.A.B. and we have their note of the interviews with the applicant and the follow-up. The note is headed "Unfair Dismissal". The note recounts the Mr Smith the advisor there had telephoned Mr Gepp on Thursday 29 October. His note reads:

"Employer claimed that he dismissed her for 'gross misconduct'. I confirmed to him that this meant he did not have to give notice (or pay in lieu)".

That was communicated to the applicant and there was one further telephone conversation as to whether there may be some room for negotiation about which we do not need to concern ourselves. Thereafter there is no relevant correspondence between the applicant or the respondent and the matter comes before us".

5. In paragraph 9, the Tribunal made it clear that an initial issue that they had to resolve was as to whether the words there set out, had served to dismiss Mr May. Her case was that they had. Her employers case was that they did not amount to dismissal, what they reflected was her decision to resign.
6. Turning then to the approach of the Tribunal to this issue, it then directed itself in these words:-

The respondent's representative contended that it was for us to determine whether the words used were words of resignation or words of dismissal and in so far as there was ambiguity that the test was: firstly what was intended by the words used and secondly how would a reasonable employer or employee have interpreted those words?".

7. The Tribunal subsequent in paragraph 11, directed itself in these terms:-

"The law that we have to apply is firstly to consider whether there was a dismissal within the meaning of Section 95 of the Employment Rights Act 1996. We accept the test that has been urged upon us by the respondent's representative. Where words are ambiguous we must endeavour first of all to consider what was meant by them and secondly how a reasonable employer or employee would have interpreted them".

8. The matter is then subject of a final assessment by the Tribunal in paragraph 13, in these words:-

"The conclusion that we reach is very unanimous conclusion. We are quite satisfied that the words used by Mr Gepp over the telephone were intended to bring the applicant's employment to an end and that she reasonably understood them in that way. Her reaction that she should look for another job was a reaction to the words that were intended to bring her employment to an end and we do not accept that a reasonable employer could have concluded after the applicant had attended for work on the Wednesday after the whole position was clear and full confession made by her on the Tuesday that she would have intended simply to resign. The discussion about other work was a reaction to the clear indication that she could not return to work. The applicant in our judgment satisfied us that the conversation over the telephone was a dismissal for the purposes of Section 95 of the Act".

9. Mr Brown submits this morning that in paragraph 9, the Tribunal misdirected itself, in as much as it implied that one element of its deliberation should be as to the subjective intention behind the words, as used by Mr Gepp. He puts before us an extract from Harvey in which the authors submit that in these circumstances, "the intention of the speaker is not the relevant test". He says, given that misdirection, then there is, first, an arguable point of law, and, second, it is a point of law that necessarily involves consideration of the whole thought process of this Tribunal on this crucial issue, so that there is room for a view that their whole finding was undermined that in its turn leading to a decision to remit the matter for a rehearing.
10. We are inevitably grateful to Mr Brown who has carried out the functions of the ELAAS Scheme admirably, and has given great assistance, not only to Mr Gepp but to this Tribunal as well. That said, we are unable to accept his submission that he has identified a point of law and would merit an inter-partes hearing. The flaw in the argument arises as follows.
11. The case of the listener, Mrs Maine, was that she did understand the words as a dismissal. That then necessarily led on to a clear issue on the authorities as to whether she was objectively justified in so doing. That test was certainly applied by this Tribunal in the course of its deliberations, as the extracts that we have cited, serve to show.
12. The remaining issue is as to whether that proper process was in any way undermined, or negated by giving any consideration to the subjective intention of Mr Gepp. In our judgment, so far from harming his case, it seemingly gave him a potential benefit which the law might not have allowed.
13. Turning to the extract from Harvey, it is entirely true that editors put forward the submission already cited but that is in the context of that being the only test applied by a Tribunal. It arises in exactly the opposite situation than the one we have here. Let it be supposed that Mrs Maine professed that the words used by Mr Gepp did not amount to a dismissal. Then a Tribunal might be tempted to look at the intention as they find it to be behind the words and rule against Mrs Maine on the basis that Mr Gepp intended to dismiss. This is that which is condemned by the editors of Harvey, for understandable reasons. As they point out, the findings as to the effect of ambiguous words would vary according to the intention of the speaker, and that plainly cannot be the law.
14. But this is as we emphasise, is not the current situation, in the current situation it is exactly the opposite in that Mr Gepp paradoxically got a benefit, in so far as the Tribunal applied its mind to what he says is the contrary intention that lay behind the words in question. Thus for the reasons we have sought to explain, we are unable to accept that Mr Brown's point founds an appeal.
15. Turning then to the balance of the extended reasons, we emphasise that we have read them through with care in order to make our own search for any point of law that might have founded an appeal, and we have to say that we can discern nothing else that would merit such.
16. Thus it is that in our judgment there is no point of law, thus it is as we foreshadowed earlier in this judgment, we have to dismiss this appeal.