United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A GEORGE (of Counsel) Messrs Whitman Breed Abbott Morgan Solicitors 11 Waterloo Place London SW1Y 4AU
For the Respondent	THE RESPONDENT IN PERSON


 


JUDGE REID QC: This is an appeal by the employer, Blue Square Design Presentations Limited, against a decision of an Employment Tribunal sitting at London (North) made on 24th August 1999. By that unanimous decision the tribunal decided that the respondent was in breach of its contract of employment with the applicant below, Miss Hauldren, and ordered that it should pay damages for breach of contract representing a month's net salary £1,509; and 4½ days accrued holiday pay amounting to £223.24, a total of £1,732.58.

1. The Notice of Appeal does not take issue with the holiday pay point:

"1 … We agree with the fact that Ms Hauldren is owed 4.5 days holiday pay, but dispute any pay is due representing one month's net salary."

2. We are concerned today with the issue of one month's net salary.
3. The background to the case is that Miss Hauldren is a creative designer. She began working for Blue Square at the end of August 1998 and between then and December 1998 she submitted invoices on a freelance basis for the work that she had done. She told us that she was in effect working full-time for Blue Square and that she was doing more than a freelance would have been expected to do, in that, for example, she was not leaving at 5 or 5.30 but she was from time to time working late into the evening and doing work at weekends. Nonetheless, she was billing as a freelance, she had no contract of employment and at that stage she was self-employed. From the beginning of January 1999 until 24th March 1999 she worked for them as an employee.
4. After Miss Hauldren left their employment on 24th March she presented an application to the London (North) Employment Tribunal seeking pay of one month's salary in lieu of notice and the 4½ days holiday pay, to which I have referred.
5. The decision of the tribunal, so far as the month's pay was concerned - I can leave aside any references to the holiday pay - was that:

"In the absence of a written contract, we have accepted [Miss Hauldren'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 at the rate of 1.5 days per month, and that those contractual terms were agreed verbally by [Blue Square] but never put in writing."

6. The decision provides no details at all of the supposed oral agreement. The Originating Application makes no mention of any such "verbal agreement". The statement of evidence that Miss Hauldren put in makes no mention of any such "verbal agreement". There is no suggestion in the Chairman's Notes of Evidence which we have seen, of any such oral agreement.
7. Miss Hauldren told us that in reality what she was relying on was an understanding of the way in which things worked in the company and that that was based on a discussion which took place between members of the team with which she was working sometime in November or December 1998 at the time of the dismissal of another employee; and that the boss, to use a colloquialism, of the department was party to that discussion, but neither of the two principals of the company, Mr Curtis nor Mr Nurisso, was party to the discussion.
8. In the circumstances, it seems to us that the decision which the tribunal appear to have reached was one which is not properly explained and for which there appears to be no evidentiary basis. There is an absence of explanation of the reasons which, in our view, amounts to a failure in law by the tribunal in its duties. It seems to us that on the material presented to us that the decision was perverse because of the absence of any evidence to support it.
9. The second area in relation to which there is complaint is the finding of the tribunal that Miss Hauldren was constructively dismissed. The finding is set out in these terms:

"On 24th March 1999 [Miss Hauldren] was verbally abused by Mr Curtis, the joint managing director. She was upset and went home. There she drafted a letter of resignation which she referred to her resignation. That letter referred to no particular notice period. [Miss Hauldren] went in to work on 25 March. She had the letter with her. She was further abused by Mr Curtis and told him that she was resigning and giving him one month's notice to that effect. Mr Curtis told her that she was not to work her notice and indeed escorted her from the building. She deposited her written notice in the mail room. She later wrote to [Blue Square], seeking payment of one month's salary in lieu of notice and her accrued holiday pay."

10. That letter of resignation is in these terms:

"I regret to inform you that I would like to resign from the position in your company.

I has been good experience working with you over the last six months and I have enjoyed the time in your design department.

I feel my skills and experience ultimately did not suit Blue Square.

I wish you both luck in the future with Blue Square Design."2

The letter bears the date of 23rd March 1999 rather than 24th and no evidence appears to have been produced before the tribunal as to the circumstances of that misdating.

11. We take the view that the tribunal were perfectly entitled to take the view that the letter was as Miss Hauldren said handed over when she went in on 25th March and to take a view that it was something which was produced as a result of the incidents on the 24th. It is, however, surprising that the tribunal made no finding in relation to that. Again, it seems to us, that that indicates that the tribunal failed in its duty to provide reasons from which a party could determine why it had lost.
12. The letter, it will be noted, makes no reference to the resignation being as a result of abuse. The tribunal makes no reference to that oddity. Against, it seems to us, that this is another instance showing that the tribunal failed in its job of explaining why a party was being found to have lost. We should add that in Miss Hauldren's IT1, containing her details of complaint, she deals with the resignation in this manner:

"I handed in my letter of resignation on the 25th March 1999, with the intention of working a months notice. Mr Curtis then informed me that he did not want me to work my notice, insisted I handed over my keys to the building, and escorted me off the premises."

That also makes no mention of any sort of abuse or any sort of upset being caused, whereas by contrast a couple of paragraphs further down, referring to the dispute over payment, she refers to speaking to the marketing director in these terms:

"I spoke to the Marketing Director who informed me that Mr Curtis had gone away for 4/5 days and that she had been instructed by Mr Curtis to inform me that my wage cheque had been cancelled from his direct debit and he would write me a cheque on his return.

This action in itself cause me distress, both emotionally and financially. …"

13. It can, we think, be properly said that in the absence of anything in the claim form and in the letter of resignation and the absence of any real explanation in the terms of decision, that the decision that there was a breach of contract was inadequately explained and on the face of the decision appears to be perverse and unsupported by any sufficient evidence.
14. In these circumstances, regrettably because the amount in dispute is small, we take the view that the appeal has to be allowed to the extent that the matter should be remitted to reheard by a different tribunal who will start again from the beginning. No doubt on this occasion the tribunal will be assisted by the evidence of Mr Curtis, who was unable to give evidence on the previous occasion, because he had suffered an accident and was unable to come to the tribunal.
15. We would however express the hope that now that some 17 months have elapsed since Miss Hauldren and Blue Square parted company that, given the comparatively small amount of money in dispute, it might be possible for the parties to avoid further expenditure by resolving their differences, but there is nothing we can do to force the parties, all we can do is express a pious hope that with a bit of goodwill on each side, this matter need not go back for a further hearing.
16. We regard this as being an extremely unfortunate case. It is no fault of Miss Hauldren's that the appeal has had to be allowed. It was no fault of Blue Square that the tribunal below perhaps received less assistance than they might have done because Mr Curtis being unable to attend to give evidence and because of the view taken the company at that stage that on the face of the documents it was a fairly straightforward matter which did not require his attendance.
17. In those circumstances, the appeal is allowed and the matter is remitted for rehearing before a different tribunal, unless, as I hope they can, the parties can sort it out between themselves, the dust now having had 19 months to settle.