United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS K GIBB (of Counsel) Instructed by: Messrs Raymond Saul & Co Solicitors 34 Commercial Road London E1 1LN


 


HIS HONOUR JUDGE WILCOX:

1. The Applicant was hired by the Respondents as a full time bar Person on 10 July 1997. On 14 April 1999 she suffered a miscarriage and began taking sick leave. Then what happened thereafter is detailed in the extended findings of the Tribunal. Miss Catt, the Appellant returned to work to on 10 May but continued to be unwell and went home early on 15^th. She did not go into work the next day, but she told Miss McKenzie on the phone, that is another employee at the wine bar that she would not be returning to work at all. The Tribunals' finding at paragraph 7 is that:

7. "We find that Miss Catt went to work on 16 May and handed to Mr Kaschewski a medical certificate for four weeks' absence and said "After this, I'm not coming back. "I'm through with it."

On the basis of that the Tribunal found as they could if the evidence merely rested there, that that was a resignation, with resignation taking effect four weeks from the date in which the notice was given.

2. The first matter that causes a degree of concern is the dating itself of the medical certificate. That is dated on 17^th. Of course it is possible that that could be an error made by the Doctor, but it was not a matter that was expressly dealt with by the Tribunal. But more importantly in the statement of the Appellant, before the Tribunal, she is quite adamant that in fact it was 18 May when she went into the wine bar.
3. There is an issue of and the Tribunal found against her as to the conversation and whom she saw, they clearly preferred the evidence of Mr Kaschewski that he spoke to her and notice was given. But this finding gives rise to difficulty if one goes to the findings at paragraph 17 of the extended findings. It seems that the Tribunal accepted Mr Kaschewski's evidence, that he filled the shifts left vacant by the Applicant's absence's with temporary/part time staff until May 17, when he considered that she had given her notice in and he offered a full time job to the former employee, that is referred to in an earlier part of the reasons. It thus appears, upon the face of the findings, that there is at least the strong possibility that in making their findings, as to when notice was given, they were in error.
4. Secondly, the arguable point that not only were they in error but they failed to address the possibility that she may have been replaced before in fact she gave notice. We appreciate that these are evidential matters but they do give rise to:

Firstly, an argument that there may be a perversity of finding, based upon misapprehension of fact and

Secondly, if there was a reappointment of an old employee before notice, it may give rise to other considerations, that might properly be argued.

5. We direct that this matter go to a full Tribunal. That there be a note from the Chairman. It would be appropriate if it was the whole note but what we intend should be focused upon is evidence and findings in relation to the date 16, 17 or 18 May. We therefore give leave for this matter to go to a full Tribunal. There will be the normal direction as to skeleton arguments. The preparation of a very full chronology and it will be placed in category C.
6. Directions Matters:

Time estimate for full hearing one day.