United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A K ELEFTHERIOU (Accountant)


 


MR COMMISSIONER HOWELL QC

1. In this case which is before us for a preliminary hearing today, the Appellant Tenby Fashions Ltd, a garment manufacturing company, seeks to pursue an appeal against the decision of the London (North) Employment Tribunal, comprised in extended reasons sent to the parties on 9 November 1999 after a hearing and consideration of oral evidence on 29 October 1999.
2. The complaint to the Tribunal was by a former employee of the Appellant's, Mrs Evanthia Shiangolis. Her Originating Application dated 26 August 1999, (pages 11-14 of the appeal file) raised issues of unfair dismissal, failure to pay the minimum wage to which she was entitled after the relevant legislation came into force, and questions of whether she had received all payments due to her.
3. The immediate events which gave rise to her dismissal are dealt with in the findings of fact by the Tribunal and it is convenient simply to repeat those by way of explanation of the background facts to this appeal. Starting at paragraph 2 on page 4. The Employment Tribunal recorded that

"2.4 The circumstances of the Applicant's dismissal were that she worked in the Design Room of a clothing factory, together with a Chinese colleague know as 'Valerie'. Over a period of time there were a number of heated exchanges between Valerie and the Applicant. The exchanges arose because the Applicant, who was Greek, worked within a Greek factory. The Applicant wished to listen to Greek music; Valerie did not. In order to mollify matters, Mr Antoniou, the Director, arranged that the radio should be on sometimes for English music and sometimes for Greek music. The Applicant brought in her own personal stereo to listen to which she did through headphones. Valerie claimed that the Applicant sang along to this, which was extremely irritating. Mr Antoniou said that he had spoken to both Valerie and the Applicant about their intemperate exchanges and warned them about their behaviour. Matters came to a head on 2 July 1999.

3. On that day, Mr Antoniou was in his office and could see and hear the Applicant and Valerie shouting. He came out of his office and, by the time he got there, he saw the Applicant throw four or five industrial-size cotton reels at Valerie. He considered this to be such serious behaviour that he dismissed her instantly. He did not make any enquiries as to how the exchange had commenced or progressed. Mr Antoniou's son, who had been working in another part of the factory, came running along and saw his father trying to prevent the Applicant throwing cotton reels at Valerie. Valerie, whose proper name was Mrs Tong, gave evidence that the Applicant had thrown the first cotton reel at her but she had reciprocated and thrown a cotton reel at the Applicant, hitting her on the lip.

4. The Applicant said that she had been listening to the radio not using headphones, that Valerie had thrown a cotton reel at her, hitting her on the forehead, and that she had in self-defence thrown the cotton reel back. Mr Antoniou had not observed Mrs Tong throwing any cotton reel.

5. The Tribunal were satisfied on the evidence before them that there was a clear disparity of treatment between the two protagonists. Mrs Tong had had no warning nor any other form of disciplinary action taken against her where she was clearly a participant in a fight manifesting the same type of behaviour as the Applicant, who had been dismissed. Mr Antoniou had done no investigation. The Tribunal was therefore satisfied that the dismissal was procedurally and substantively unfair.

6. In addition to unfair dismissal, the Applicant claimed that she had not been paid the minimum wage of £3.60 per hour. She claims that she worked 39 hours per week for which she received £100 per week salary. The Respondents claim that she worked only from 8 am till 1 pm and therefore she received a basic pay of £4 per hour. The Applicant called witnesses to support her claim that she worked longer hours, notably her neighbours who could identify when her husband went to collect her from work at 5.30 pm.

7. The Tribunal noted that under the National Minimum Wage Act the burden of proving that a person does not qualify for the national minimum wage falls on the Respondents. They produced no evidence to show the hours worked by the Applicant, only wage slips which showed the amount paid. In the circumstances, therefore, the Tribunal concluded that the Applicant was correct in asserting that she worked a 39 hour week at the rate of £100 per week, which equated to £2.56 an hour, £1.04 lower than the national minimum wage."

4. On the basis of the findings embodied in those paragraphs, the Tribunal then made orders for payment of the amount to bring the Applicant up to the minimum wage and compensation in respect of her dismissal which they had held to be unfair.
5. It is apparent from the paragraphs we have read that the whole case in front of the Tribunal depended on disputed issues of fact as to the events giving rise to the Applicant's dismissal, and as to the number of hours she worked for the wages she got. The Tribunal heard evidence, not only from the Applicant but also from Mr Antoniou, the Director of the Appellant company and from Mrs Tong, who was the other person most directly involved in the events leading to dismissal.
6. In addition they had the benefit of submissions from Mr Andreas Eleftheriou, the company's Accountant, who was representing the company before the Tribunal and has also represented them before us. It is clear from what he told us that he himself has personal knowledge of company's arrangements and he is responsible for dealing with its accounts and was able to assist the Tribunal on the kind of evidence available from his computer system and otherwise.
7. The Notice of Appeal dated 19 November 1999, at page 2 of our appeal file, does not identify in any terms any specific errors of law that are alleged to have been committed by the Tribunal in their decision, but instead sets out a number of complaints which were amplified by Mr Eleftheriou for us in argument with the aid of the supplemental bundle of documents which were provided to us this morning.
8. Dealing with the numbered paragraphs set out by Mr Eleftheriou in the Notice of Appeal on behalf of the Appellants, the first complaint is that the Applicant's representatives had failed to provide copies of documents before the hearing as it was alleged had been agreed. When Mr Eleftheriou explained this ground of appeal further, it appeared that the complaints were that a witness statement produced on behalf of the Applicant on the morning of the hearing contained different material from the statement which had been annexed to her Originating Application and had of course been served on the Appellants in the normal way. The fact that a witness statement containing different material from what is set out in the Originating Application is produced at the hearing itself as part of the evidence then given by the Applicant, supplemented as it was in this case by the oral evidence she gave, is not in our judgment any arguable ground for saying that the Tribunal's procedure was defective. It is part of the normal way evidence is given and of course if there are discrepancies between what is contained in the witness statement and what was alleged in the Originating Application, that can be drawn to the attention of the Tribunal.
9. The second category of documents to which this head of complaint refers were explained to us by Mr Eleftheriou as being documents he had requested for the purposes of challenging the credibility of the Applicant: in particular, applications that he alleged her husband had made for income support at the time that she herself was also working, and also documents relating to an alleged fraud investigation being carried on into him. We are not satisfied that any arguable ground for criticising the Tribunals procedure is shown by this head of complaint. It is noteworthy that the Applicant had on 18 October 1999 sent a written statement to the Employment Tribunal and to the Appellants stating categorically that her husband had never claimed income support for them during her employment. Of course that document was in evidence before the Tribunal and any relevant cross-examination of the Applicant could have been pursued on it. The fact that documents which Mr Eleftheriou would have wished to have, on matters which were not directly in issue before the Employment Tribunal, for the purpose of challenging her credibility were not produced was a matter on which submissions could have been made to the Tribunal, by way of supplementing the challenge to the credibility of the Applicant which was plainly a matter in issue throughout the proceedings in front of the Tribunal. We are not satisfied that the non-production of such documents provides an arguable ground for saying that the Tribunal were wrong in deciding the case as they did on the balance of probabilities on the evidence presented to them.
10. The second head of complaint in the Notice of Appeal relates to the course of the proceedings themselves. As Mr Eleftheriou explained to us, it refers to the fact that initially the Applicant sought to give her oral evidence in Greek through the aid of her husband as an interpreter. When this was tried Mr Eleftheriou fairly soon objected that the husband was not only interpreting her answers, but suggesting the answers she should give. The Chairwoman then intervened and determined that instead of the evidence being given through the husband, she would instead, herself, put questions in English to the witness; and the hearing then proceeded with the Applicant being questioned by the Chairwoman in English and giving replies in English which the Employment Tribunal appear to have had no difficulties in understanding. We are not satisfied that there are any grounds for saying that the procedure adopted by the Chairwoman, in these circumstances, was defective or unfair. Mr Eleftheriou made the further objection that the way matters had proceeded had resulted in his not being permitted to put questions, by way of cross examination, on credibility as fully as he wanted by bringing in, for example, allegations of income support and other types of fraud in order to show that the Applicant was a liar. Again we are not satisfied the Tribunal erred in restricting the questioning to the facts actually necessary to determine the appeal before them. These do appear to have been fairly and adequately explored as is shown by the Tribunal's statement of reasons and accordingly we reject that ground of complaint, as not showing an arguable ground of law for setting aside the Tribunal's decision.
11. The third, fourth and fifth heads of complaint in the Notice of Appeal are concerned with related questions where Mr Eleftheriou considered that it would have been advantageous for the Applicant to be made to provide further documents or evidence. First of all about an abscess she was alleged to have being suffering from which he said would have shown that she was made particularly irritable at the time of the events in question, yet medical evidence he thought she should have provided from her doctor had not been provided. Secondly, it was suggested that the Appellants had information that the Applicant's husband had been moonlighting and questioned by the fraud office. They would have liked to see correspondence relating to that investigation to support their claim that she was not working for 39 hours per week and to question the veracity of her evidence. Thirdly, it was suggested that she had admitted that she had made a claim for income support and that they requested a copy of the application form, which was not done. We have already referred to the express denial that a claim for income support had been made at any relevant time while the Applicant was working. We are not satisfied that, as we have already indicated, that the absence of the alleged claim form before the Tribunal would have carried the matter forward in one direction or another so far as the issues actually before the Tribunal for decision were concerned. Accordingly we are not satisfied that any arguable ground for allowing this appeal to go forward on those documentary points has been shown to us.
12. The question of whether the Applicant had been in an irritable state on the date of the events giving rise to her dismissal appears to us to have been fairly dealt with so far as was needed. It is absolutely clear from the evidence which the Tribunal did accept, that tempers had run high, on this as on previous occasions, and that in this particular instance matters got completely out of control so that the Director, Mr Antoniou, had been faced with a very difficult, heated situation. He is entitled to a good deal of sympathy for that. However, the criticism by the Tribunal of the procedure adopted by the Appellants in immediately dismissing the Applicant is not based on any question about the credibility of one side's evidence or the other. It is not in dispute that she was summarily dismissed when Mrs Tong was not and that a proper enquiry did not take place before this was done. Those facts are entirely accepted by the Appellants before us this morning. It appears to us that is the real issue which decided the case as far as unfair dismissal is concerned: see paragraph 5 of the Tribunals reasons. These other issues as to credibility were of little or no relevance to that.
13. As regards the minimum wage complaint issues of credibility were indeed relevant. The Tribunal correctly recorded in paragraph 7 of their reasons, that it is for the employer to show that a person does not qualify for the National Minimum Wage and that the employer had produced no evidence to show the hours that the Applicant had actually being working. Mr Eleftheriou conceded before us this morning that no documentary evidence was in fact provided by the employer to show the hours worked. There were deduction cards which showed, merely, the amount of wages that had been paid to the Applicant and the amount of deductions made for tax, National Insurance and so forth. He confirmed expressly that the employers at that stage had kept no records to show the number of hours worked by their employees and that they had failed to produce any written documentary evidence to show what the hours worked by the Applicant had been. Therefore, the case on this issue depended on oral evidence only. That was a matter for the Tribunal to decide. They heard oral evidence both from the Director of the Appellant, and on the accounts from Mr Eleftheriou himself, and from the Applicant. They held that the burden of proving that the required minimum wage had been paid to her in this case had not been discharged by the Appellant. That was a matter of fact for the Employment Tribunal to determine on the evidence and we cannot see that there is any arguable ground in law for setting aside the decision they reached having heard the witnesses.
14. The final ground of complaint in the Notice of Appeal is based on the Tribunal having proceeded with the hearing despite an application having been made to it by Mr Eleftheriou on behalf of the Appellant for a postponement of the hearing, in order for further witnesses to attend. This of course is a procedural matter, one of discretion and judgment for the Tribunal or its Chairman, whether to accept an application for postponement of the hearing. We are not satisfied that any arguable case has been shown to us to warrant directing a full hearing on the ground that the powers had been wrongly exercised by the Chairman in this case: or indeed, that any procedural unfairness to the Appellant's had resulted.
15. Mr Eleftheriou took us to various documents in the supplemental bundle he produced to show what application or applications for postponement had been made and the grounds on which that was declined. In fact the documents he showed us only demonstrate that one single application for an adjournment had been made. Earlier correspondence appears to have been taking place between the Appellants and the Tribunal with a view to ascertaining whether sworn witness statements would be accepted by the Tribunal as evidence from individual workers in the clothing factory, because it would be inconvenient for the Appellants for their workers to have to attend the Tribunal hearing which would involve a loss of production for the firm and possible adverse commercial consequences.
16. Therefore on 7 October 1999 (page 38 in the supplemental bundle,) Mr Antoniou wrote to the Employment Tribunal asking for advice whether it would be possible for some of the employees who witnessed the incident between Mrs Shiangolis and Mrs Tong, to provide sworn statements instead of attending the Tribunal. He explained that if they all had to attend they would be compelled to shut the factory and this would result in losing production and suffering trade losses in such a very competitive market. The response to that from the Tribunal is on page 36, dated 14 October 1999. After consultation with the Chairman, the Clerk told Mr Antoniou that he been instructed to inform him that he might submit sworn statements and the Tribunal would normally receive them; however, he must bear in mind that if the evidence was disputed they would then have little value. That of course was entirely correct advice by the Tribunal Clerk on behalf on the Employment Tribunal Chairman.
17. In the end the decision appears to have been taken by the Appellants that the evidence of three other employees at the clothing works, who had been witnesses to either this argument or previous arguments involving the Applicant, would be given by means of written statements; which were submitted and included in the Employment Tribunal bundle.
18. The only application for an adjournment which we have been shown is evidenced by a Ruling dated 22 October 1999, by a Chairman, recorded in a letter of that date on page 34 of the supplemental bundle we have been given. This referred to the Appellants' recent request for a postponement of the hearing of the case, recorded that a Chairman of the Tribunal had considered carefully all that was said and has balanced that against the desirability of bringing the case to a hearing without delay. The Chairman refused the request for the following reason: "There is no indication that the Director is an essential witness. One of the other six can presumably give evidence".
19. That was plainly an application for an adjournment of the whole hearing in order to avoid inconvenience to the Director, Mr Antoniou. As Mr Eleftheriou told us this morning, Mr Antoniou had been planning to go on holiday at the time when the hearing was likely to take place. In the end, what happened following the request for a postponement being declined was that Mr Antoniou had to cancel his holiday; and the decision was taken by the Appellant and on its behalf that the evidence provided on behalf of the Appellants to the Tribunal would be from Mr Antoniou himself (who did duly attend) and also from Mrs Tong, who had of course been the person primarily involved in the actual incident that led to the Applicant's dismissal.
20. Thus the way evidence was placed before the Tribunal, as the result of no doubt a very sensible business decision taken by and on behalf of the Appellant company, was that Mr Antoniou would attend, and Mrs Tong would attend; but the other employees would give their evidence in the form of written statements and would continue to work in the factory on the day in question, so that production was not lost.
21. As is clear from the Tribunal findings in paragraph 2 to 5 which we have already read, in fact, there were no serious disputes about any of this evidence. It is clear from the Tribunal's findings that they accepted that there had been previous intemperate exchanges between the Applicant and other employees and that the altercation which led to her dismissal on 2 July 1999, was a particularly serious one in which the Applicant, (as well as, it transpired, the other employee involved) was clearly at fault. But as we have already said the reason for the Tribunal's decision was not that the evidence of the company's witnesses was in any way disbelieved on those issues. It was that the decision to dismiss was taken on the spot by Mr Antoniou, without any previous enquiry as to what had given rise to the dispute and where the real fault lay. That is made clear by the Tribunal's findings and that the basis of their decision as stated in paragraph 5, in that the procedure and the substance of the dismissal were both unfair in the circumstances in which it had been imposed. That is based on the evidence from Mr Antoniou himself that he had summarily dismissed the Applicant: and it is beyond argument that this had been done without any disciplinary enquiry or indeed, any enquiry of Mrs Tong as to whether she had taken part in the fight. Mr Eleftheriou told us this morning it had come as a surprise to himself and to Mr Antoniou, when she had given evidence at the Tribunal that Mrs Tong had herself taken part in the cotton-reel throwing of which they had not been previously aware. That appears to us to demonstrate absolutely clearly that the Appellants had failed to conduct the normal and reasonable enquiries which are expected of an employer before a summary dismissal is imposed in such circumstances as occurred here.
22. For those reasons we have not been satisfied that any arguable ground has been shown for saying that this Tribunal erred in any way in law, in the decision they gave, and we now dismiss the appeal.