United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR C CURTIS (Company Director) Blue Square Design Presentations Ltd 2nd Floor 46-47 Britton Street London EC1M 5UJ


 


MR JUSTICE CHARLES: This appeal comes before us today by way of Preliminary Hearing. The parties are a Company called Blue Square Design Presentations Ltd and a Miss J.E. Hauldren.

1. The appeal is against a decision of an Employment Tribunal sitting at London (North), Extended Reasons for which were sent to the parties on 7 September 1999. The decision was that the Respondent company was in breach of their contract of employment with the Applicant and that they should pay the Applicant a sum of money representing damages for breach of contract and four and a half day's accrued holiday pay. The foundation for that judgment was a finding that the terms of Miss Hauldren's contract included a term that she should be given one month's notice and provisions which warranted the holiday pay entitlement.
2. The Notice of Appeal raises three points. Some of those points are points of fact. For example, the finding of the Tribunal that the Appellant did not receive a letter dated 15 January. Our jurisdiction is limited to dealing with issues of law and our function today is to consider whether this appeal raises reasonably arguable points of law. At a full hearing it is not open to an Appellant, or indeed a Respondent, to reargue the facts.
3. So far as errors of law that are relevant to this appeal are concerned there is the potential for an argument based on cases such as Meek, that the Tribunal have failed adequately to explain the reasons for their decision. Alternatively, there is potential for arguments on perversity, namely that the decision is one which no Tribunal properly directing itself could reach or alternatively there was no evidence before them in respect of a particular finding of fact.
4. We confess that normally in respect of findings of fact, such as that reflected in paragraph 4(f) of the Extended Reasons in this case which is in the following terms:

"In the absence of a written contract, we have accepted the Applicant's evidence that she treated herself as being employed on the basis of a contract which required one month's notice either way and that she was accumulating holiday pay at the rate of 1.5 days per month, and that those contractual terms were agreed verbally by the Respondents but never put in writing."

we would have concluded that that was a finding of fact by the Employment Tribunal as to the terms of the contract and no reasonably arguable point arose on an appeal. However, in this case we have concluded that there are reasonably arguable points of law under the two heads I have described, namely (i) a failure to adequately provide adequate reasons, and (ii) the ground that there was no evidence to support certainly one of the findings.

5. Turning to the second point first. At paragraph 4(e) of the findings of fact, the Employment Tribunal set out a finding and refer to the letter of resignation handed in by the Applicant, Miss Hauldren. We have only seen a letter which is dated 23 March and which therefore predates the events and does not fit in with the finding made in paragraph 4(e). It seems to us that it is reasonably arguable that that raises an argument of perversity. Further and perhaps more persuasively, it also raises the argument that the Employment Tribunal have not adequately explained how they made that finding of fact, having regard to the date on the letter of resignation and the content of that letter (which is not in terms which reflects the finding of fact made in that paragraph).
6. The other area which we consider gives rise to a point that is reasonably arguable that there is a lack of adequate explanation, is how the Tribunal moved from the expression "that she treated herself as being employed on a basis of a contract" to an unexplained finding that those were the contractual terms agreed verbally by the Respondents. They do this (i) without identifying the agreement that they say was reached and, in particular, the time when it was reached the circumstances in which it was reached and the people between whom it was reached, and (ii) without express reference to the letter of 15 January 1999 which they find was not received by Miss Hauldren (and thus implicitly that it was sent notwithstanding the finding that the verbal contract was never put into writing) or the standard term contract of employment. Other points were raised before us by reference to these documents. At this stage it seems to us that we should say nothing further about them.
7. We will therefore allow the appeal to proceed to raise those two grounds. The Notice of Appeal has been drafted by the Appellant (the Respondent company below) itself. We will give them leave to amend that Notice of Appeal within 14 days of receipt by them of the transcript of this judgment to identify the points that we have raised as being reasonably arguable. That leave is given pursuant to our practice direction and the guidance notes.
8. We indicate now that the issues in the existing Notice of Appeal that simply seek to reargue the facts are not ones which this Tribunal will entertain on a full hearing. In our view the practical course is to leave the issue as to how such points are dealt with to the full hearing before this Tribunal having regard to the arguments pursued at that stage and the amended notice of appeal. If on that hearing the Appellant company inappropriately pursues points, it may be at risk as to costs, but we think it would be too complicated to try and "blue-pencil out" or extract such points from the existing Notice of Appeal albeit that we have given leave to the Appellant (the Respondent below) to put in an amended Notice of Appeal to identify the points which we consider to be reasonably arguable. If the Appellant company decides to delete and thereby abandon points when amending the Notice of Appeal they may do so.
9. We give this case Category C and a time estimate of half a day. We also direct that the Chairman do provide his Notes of Evidence of the Applicant (Miss Hauldren) because given the nature of the grounds we have identified as being reasonably arguable that it will be appropriate for this Tribunal to have those notes.