United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	ROY LEMON (Counsel) Instructed By: Messrs Orchards Solicitors 99 Bishopsgate London EC2M 3YU


 


JUDGE PETER CLARK:

1. This case neatly illustrates the procedural pitfalls which exist in this jurisdiction for the unwary. We begin with the history. On the 28 March 1999 the Appellants, Barkland UK Limited, (Barkland) won the contract to provide cleaning services to Marks & Spencer's Milton Keynes store in succession to a contractor, ISS Food Hygiene Limited, by whom the Applicant, Mrs Daunt, was then employed as contracts manager. It is common ground that on that date the Applicant's employment transferred to Barkland under the provision of the TUPE Regulations 1981.
2. In August 1999 Barkland were informed by the Marks & Spencer's store manager that the Applicant was submitting false time sheets, showing hours worked when she was absent from site. On 25 August 1999, the Applicant was suspended and a disciplinary hearing took place on 6 September before the Applicant's manager, Terry Phelan and Barkland's Regional Manager, Ann Smart. As a result of the Applicant's contention that her working practices had been agreed with ISS management the hearing was adjourned for further investigations. The hearing was reconvened on 8 October at which time the Applicant was summarily dismissed. An internal appeal against that decision was dismissed following a hearing on 19 November. Thereafter she presented a complaint of both unfair dismissal and wrongful dismissal to the Bedford Employment Tribunal on 6 January 2000, giving her dates of continuous employment as 7 February 1990 until 8 October 1999. The claim was resisted, although the dates of employment given by the Applicant were admitted in the notes of appearance.
3. The case came on for hearing before a Tribunal chaired by Mr P J Williams on 15-16 June 2000. The Applicant appeared in person. Barkland were represented by their personnel manager, Ms Julie Crockford. Oral evidence for Barkland was given by Ms Smart, the former Regional Manager, Mr Westhead and Ms Crockford herself. Mr Phelan was on an extended family holiday in Thailand and a written statement from him was admitted in those circumstances.
4. By a decision with summary reasons promulgated on 29 June 2000, the Tribunal upheld both complaints and awarded compensation and damages totalling £27,148.50. Barkland then instructed solicitors Messrs Orchard, who wrote to the Tribunal on 10 July 2000, applying for a review of the Tribunal's decision. They did not then apply for extended written reasons for the Tribunal's decision. Time for making such application is 21 days from the date of promulgation of the decision with summary reasons; Employment Tribunal Rules of Procedure, Rule 10(4) (c) (2). On 20 July the Chairman replied, dismissing the application under Rule 11(5). In the course of that letter, responding to point 3 in the Solicitors letter, the Chairman observed "This is an appeal point." Still request was made for Extended Reasons with a view to an appeal and on 24 July, the Solicitors wrote again to the Chairman, asking him to reconsider his earlier ruling in the light of further submissions. We have seen no specific response to that request by the Chairman.
5. It then seems to have occurred to the Solicitors that in order to appeal to this Tribunal they would first need the Tribunal's Extended Reasons for the original decision, but that they had overlooked the 21 day time limit for making that request while dealing with the review application. They said as much when seeking Extended Reasons, out of time, by letter dated 8 August 2000. By a letter dated 4 September 2000 the Chairman refused that application. His grounds for refusal are put in this way:-

1) Parties have had more than sufficient time to request Extended Reasons but did not do so until 8 August.

2) The Chairman has closely examined the summary reasons given and has reached the conclusion that nothing can be added which might assist you further. The Solicitors then instructed Counsel, Mr Roy Lemon to settle a Notice of Appeal, which he promptly did.

6. That notice was lodged with the Employment Appeal Tribunal on 8 September. It was rather more than a simple notice of appeal. In fact it is headed as follows:-

a) Notice of appeal from refusal of Employment Tribunal to give Extended Reasons.

b) Application for the Employment Appeal Tribunal to exercise its discretion to hear appeal without extended reasons.

c) Application for Leave to Appeal out of Time.

d) Notice of Appeal from decisions of Employment Tribunal in respect of wrongful and unfair dismissal.

e) Notice of Appeal from decision of Employment Tribunal to refuse a review.

Insofar as head (c), the Application for Leave to Appeal out of Time was concerned, that application was considered on the basis of written representations from the parties by the Registrar who by Order dated 20 November 2000, refused the application. There is no appeal against that Order. It follows that the appeal against the review decision, ground (e) of the Notice cannot now be entertained, it being out of time.

7. The position so far as the substantive appeal is concerned differs. Here the problem is that the Solicitors failed to apply in time for Extended Reasons and the Chairman has refused to provide them. The appeal against that refusal is in time and we deal with it first. Mr. Lemon submits that in light of the Chairman's comments at paragraph 2 of his letter dated 4 September, whilst the application for Extended Reasons has been refused, in practice the reasons described as summary could not be amplified in any further Extended Reasons. Consequently, in effect the Chairman was saying that they could stand as Extended Reasons, although he did not say so in terms. Alternatively, he invites us to allow the substantive appeal to proceed on the basis of summary reasons only in these circumstances. See Wolesly Centres Limited v Simmons [1994] ICR 503, applying Rule 39(2) Employment Appeal Tribunal Rules of Procedure.
8. Finally, if we allow the substantive appeal to proceed on all or any of the grounds raised, he invites us to rule that such grounds raise arguable points of law which ought to be allowed to proceed further to a full inter-parties appeal hearing. In our view:-

1. The Chairman was entitled to dismiss the application for Extended Reasons made out of time. No good reason for the delay was advanced. Awaiting the outcome for the review application is no excuse for the Solicitors failure to apply at that time for the Extended Written Reasons. We think the position is similar, although not precisely the same as the practice of the Employment Appeal Tribunal on application for permission to appeal out of time. See United Arab Emirates v Abdelghafar [1995] ICR 65.

2. The Chairman's statement that nothing can be added to the summary reasons given which might assist you further is equivocal. It either means that he had nothing to add, full stop, as Mr Lemon submits, or that nothing which he could add would assist their cause. In these circumstances, we must look at the grounds of appeal against the substantive decision to determine

a) Whether the summary reason are sufficiently full to allow a proper determination of the appeal in whole or in part.

b) if so, whether those grounds raise any arguable points of law, which ought to proceed to a full hearing.

3.SUFFICIENCY OF REASONS

1) As to the Tribunal's liability decision, the complaints are that the Tribunal failed to make necessary express findings of fact and/or reach perverse findings. It seems to us that such contentions necessarily require Extended Reasons from the Tribunal. It would be wrong for us to adjudicate on such allegations on the basis of summary reasons only. Accordingly, we rule that the appeal against the Tribunal's liability decision both on unfair dismissal and wrongful dismissal will not be permitted to proceed on the basis of summary reasons only.

2) A point is now taken that the Tribunal was wrong to take as the period of continuous employment for the purpose of first, the Applicant's entitlement to notice and secondly the basic award. The full period agreed on the pleadings, apparently 9 years but treated as 10 years by the Tribunal. The difficulty is that there is no finding of fact by the Tribunal to support the point now taken that there was no break in service on 26 March 1996 although Mr Lemon assures us that that appeared in the Applicant's own witness statement which form part of her evidence before the Tribunal. First it may be said that the summary reasons are not adequate to deal with this contention but more materially we think this seems to be a new point taken for the first time on appeal. Not only would further findings of fact be required but the Tribunal would be required to decide as a matter of law whether or not there had been a break in continuous employment at that stage in the Applicant's career. In the absence of any exceptional circumstances, we shall not allow that new point to be taken. See Jones v Burdett Coutts School [1998] IRLR 521.

3) A point taken by Mr. Lemon on the Tribunal's finding at paragraph 6b of their Reasons awarding a sum of £1,008 to the Applicant in respect of a shortfall on earnings during the period of suspension from the 21 September to 12 October 1999. His complaint is that that finding is not explained in the body of the reasons. Again it seems to us that the point cannot properly be decided on the basis of summary reasons only.

3. The final point on remedy is this. Mr Lemon submits that the effective date of termination of the contract was, by common agreement, 8 October 1999. In assessing compensation for unfair dismissal the Tribunal calculated the total loss sustained by the Applicant as a result of the unfair dismissal excluding the basic award, a £250 loss of statutory rights plus £15,436 loss of earnings. However they did not apply the statutory cap of £12,000 to that award. The limit was not raised to £50,000 until 25 October 1999. Dismissals before that date did not enjoy the increased ceiling. This, he argues, is a pure error of law on the face of the decision which can and should be argued without the need for further reasons or findings of fact by the Tribunal. We see the force of that argument and shall assume that Mr. Lemon is correct in so submitting. Thus on the statutory limit point only we move to the final stage.

4. ARGUABLE POINT OF LAW

It is arguable in our judgment, that for the purposes of the raised ceiling on compensatory awards, in the case of summary dismissal, the notional contractual notice period cannot be added to take the Applicant past the relevant date, 25 October 1999. However, the Tribunal here found that the Applicant was not only unfairly dismissed but also wrongfully dismissed at common law. In assessing damages for wrongful dismissal, avoiding any double recovery between the two awards, the Tribunal limited those damages to the notional 10 weeks notice period, together with a sum for reduced earnings during the period of suspension up to dismissal. In our view it is further arguable that had the Tribunal approached compensation correctly, they would have found that the compensatory award for unfair dismissal was subject to the statutory limit of £12,000 as Mr. Lemon submits, but would then have gone on to find as a head of damage for wrongful dismissal, that as a result of the employer's breach of contract in dismissing the employee summarily without cause, she had lost the right to enjoy the increased statutory ceiling which would have come into effect during the notice period. Accordingly, her damages for wrongful dismissal ought to have been increased by the difference between the limit of £12,000 and the actual loss £15,686, that is £3,686. Such an approach is, we think arguably consistent with the approach of the Court of Appeal in Gunton v Richmond [1980] ICR755 whereby the Claimant was entitled to recover by way of damages on his unlawful summary dismissal, in addition to pay during the notional notice period, wages which he would have received during the period of time that the contractual disciplinary procedure would have taken to be exhausted.

9. These are all matters to be argued we think at a full hearing . We have considered whether or not either party is precluded from arguing the point on the basis that it was not taken below, we think not. It seems to us that neither party directly addressed either issue to which we have just referred, and left it to the Tribunal to approach the matter correctly. Whether or not they have done so will be a matter for the full appeal hearing. That is the sole point for determination at the full hearing. In these circumstances, we shall list the case for half a day, Category B. There will be an exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. No further directions are necessary, in particular, there is no requirement for Chairman's notes of evidence.