United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PAUL STEWART (Of Counsel)


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us, by way of a Preliminary Hearing, the Appeal of Maudlyn Hanson in the matter Hanson v Pageone Communications Limited. Previously Mrs Hanson has had the assistance of Counsel, Mr John Waithe, but he has not appeared today and Mrs Hanson has been assisted by Mr Paul Stewart under the ELAAS scheme and we are very grateful to him for the assistance which he has given to us and also to Mrs Hanson.
2. It is necessary to mention something of the chronology. On 13 December of last year Mrs Hanson lodged an IT1 claiming unfair dismissal.
3. On 11 January the Company resisted that in their IT3. It claimed that Mrs Hanson had not been dismissed but had resigned.
4. On 14 February of this year, Mrs Hanson asked the Tribunal to order further particulars from the Defendant.
5. On 17 February the Defendant, Pageone Communications Limited, listed the matters on which it intended to rely and to that extent gave some particulars. The next day, the 18 February, there was an Order against Pageone for "the following further and better particulars" from the Employment Tribunal with a warning as to the position that might arise if the Order was not complied with but, unfortunately and remarkably, no particulars were in fact listed whatsoever. And whatever Order was then made on the 18th, could have been (we know not one way or the other) in ignorance of the Company's letter of the day before, which does not seem to have been copied to the Employment Tribunal at any rate on the face of things.
6. Then on 1 March, there was a hearing before the Employment Tribunal at London (North) under the chairmanship of Mr G M Pettigrew and the unanimous decision was sent to the parties on 13 March and it was:

"the Applicant was fairly dismissed by reason of her conduct."

"the Respondent did not make unauthorised deductions from the Applicant's wages"

7. On 10 April Mrs Hanson lodged her Notice of Appeal. Unfortunately, and we have explained this in brief to Mr Stewart, the form of the Notice of Appeal and Skeleton Argument lodged by Mr Waithe is such that on the material before us we can not even judge whether there is an arguable point of law which, of course, is what a Preliminary Hearing is concerned with. We shall therefore adjourn the Preliminary Hearing but make some comments on the existing grounds of appeal and on the Skeleton Argument so far received so that our comments might assist in the further conduct of the case.
8. It will be therefore convenient to refer to the expansion of the 7 grounds of the Notice of Appeal that is to be found in Mr Waithe's Skeleton Argument. Thus in ground 1, Mrs Hanson complains that the Employment Tribunal should have struck out the IT3 for non compliance with the Order for further and better particulars. But one has to bear in mind that the Order, oddly enough, as we have mentioned, specifies no particulars; it was a blank. Secondly, it might in any event have been made in ignorance of the Company's letter of 17 February. Thirdly, we have no information either way as to how the application to strike out the IT3 for failure to comply with the order for particulars (it there was, indeed, such an application) was dealt with by the Tribunal because the extended reasons make no mention of it being made or how was dealt with.
9. Also in ground 1 it is said that documents were produced at the hearing which Mrs Hanson had not seen before. Whether there was any application in relation to those documents and how it was dealt with, and whether the documents were indeed necessary for a just hearing of the case, and whether there was an application for adjournment are all matters as to which we have no information. What is needed here, in relation to this first ground, is first of all a more detailed form of complaint from Mrs Hanson such that Employment Appeal Tribunal can, if then appropriate, raise questions with the Chairman as to whether what is by then more fully alleged actually took place and how it was dealt with. So much for ground 1.
10. In ground 2, there is a complaint of a failure on the Employment Tribunal's part to grant an adjournment to her in order that she should be able to consider Bundles A1 and R1. But we have seen neither of those Bundles and again, whether that was an application made, and how it was dealt with is a matter on which we have no information. When the Preliminary Hearing returns, A1 and R1 will be needed and a fuller description from Mrs Hanson's then representatives as to what happened, was an adjournment sought and were the Bundles really needed for the conduct of the case.
11. Once the Ground of Appeal is expanded, we may need to ask for the Chairman's comments. There will be little point in asking for them at this stage because he would be in the dark, so to speak, as to what exactly Mrs Hanson's allegation was.
12. As to ground 3, the credibility and weight to be attached to any evidence is essentially a matter of fact for the Employment Tribunal. However, although it is a difficult task, if an appellant can show that some evidence, was misunderstood or totally ignored, then a point of law may emerge. But failure to record evidence, which is what is here alleged, is neither to misunderstand it or to ignore it. As framed at the moment, this ground 3, as a matter of provisional reaction on our part, seems to raise no arguable point of law. No detail is given in the Notice of Appeal and it is impossible to say whether there is really a point of substance here. So, on ground 3, it would be right that consideration should be given as to whether the Notice of Appeal should be amended or expanded or, indeed, abandoned in this particular regard.
13. As to ground 4, here it is alleged, inter alia, that Mrs Hanson "dismissed herself" and presumably what is meant is that there was a case for constructive dismissal, in response, as presumably she would say, "to a breach of contract by the employer of a fundamental nature". But that had not been alleged in the IT1 and was not held to have occurred by the Employment Tribunal, which held, instead, that Mrs Hanson was dismissed by the employer for capability. That being the case, the rhetorical question raised in Mr Waithe's ground 4 "What sense could it have made for her to appeal" is inapposite and whether the opportunity given to Mrs Hanson to raise a disciplinary appeal could have cured any defect is again not a matter that can be ruled upon on the information that we have at the moment. It might be added that strictly speaking, the Employment Tribunal did not find any defect; they merely said that, things were not entirely satisfactory.
14. So, the adjourned Preliminary Hearing will need to have before it a greater explanation of how Mrs Hanson puts her case if this ground of appeal is to be persisted with.
15. As for ground 5, it may be undesirable but it is not necessarily an error of law in itself for a Tribunal not to specify why it prefers the evidence of one person to another or one body of evidence to another. The allegation of estoppel in ground 5 would seem to be without foundation in law. Mrs Hanson may wish to consider amending or abandoning her ground 5.
16. As for ground 6, one does not establish an error of law by alleging merely that a finding was against the weight of the evidence. An appellant has to establish that there was no evidence at all upon which the finding in question could have been made because otherwise the complaint is merely one as to the weight properly to be given to items of evidence, which is essentially a matter for the Tribunal. Again, Mrs Hanson may wish to consider amending or abandoning that particular heading.
17. Ground 7, as it seems to us, raises no new ground but simply collects the previous ones.
18. With those comments in mind we adjourn the preliminary hearing generally, with liberty to restore. Mrs Hanson is to be at liberty, within 21 days after being sent a transcript of this judgment, to amend the Notice of Appeal as then advised. A fresh Skeleton Argument can be then be lodged for the fresh Preliminary Hearing. It may well be that at that Preliminary Hearing, it will be desirable to seek the Chairman's comments or notes. But, as we have mentioned, that would seem to be premature as yet because Mrs Hanson's allegations are not sufficiently clear to justify going off to ask for an answer to them at this stage.
19. Again we revert to thanking Mr Stewart for the assistance he has given (and perhaps which he will further give) but all we do formally is to adjourn the Preliminary Hearing to come back as a Preliminary Hearing after the elapse of the time that we have arranged.