United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J LATHAM Solicitor Instructed by Messrs Dearsden Solicitors Equality & Law House 47 Castle Street Liverpool L2 9YL
For the Respondent	MR A JOHNSTON (Of Counsel) Instructed by Messrs Barker Beswick Moon Solicitors 50 Broad Street Hanley Stoke on Trent ST1 4JB


 


JUDGE PETER CLARK

1. This is an appeal by Chester City Football Club Ltd, the Respondent company before the Liverpool Employment Tribunal sitting on 14 February 2000, against that Employment Tribunal's decision promulgated with Extended Reasons on 6 May 2000, upholding the Applicant, Mr Wingrove's complaints of unfair dismissal, breach of contract and unlawful deductions from wages.
2. There were substantial factual disputes between the parties which in the event the Employment Tribunal resolved in favour of the Applicant. The relevant facts as found were these. The Applicant commenced employment with the Respondent in February 1995. He was subsequently appointed Chief Executive of the club and became a board director.
3. At a time when Mr Mark Guterman was Chairman and principal shareholder in the company the Applicant entered into a written contract of service, signed by him and by Mr Guterman as Chairman and dated 6 August 1998, setting out terms as to the Applicant's salary and bonus entitlements.
4. In October 1998 the Company went into administration and in July 1999 Mr Terry Smith acquired a controlling interest in the Company.
5. On 26 July 1999 Mr Smith asked the Applicant to sign a document indicating that he was resigning from the board. The Applicant did so.
6. On 8 August Mr Smith telephoned the Applicant, saying that the board had accepted his resignation as an employee. The Applicant's evidence, accepted by the Employment Tribunal, was that he replied that he had not resigned as an employee. He told Mr Smith that he was now being dismissed, to which Mr Smith replied; "We prefer to say you resigned."
7. On these facts the Employment Tribunal found:

(1) that the Applicant had been dismissed on 8 August: he had not voluntarily resigned from the employment. No reason for that dismissal was advanced by the Respondent. The dismissal was therefore unfair.

(2) the Applicant had not received all payments due under the written contract of 6 August 1998.

The losses under the contract were quantified. Further, the compensatory award for unfair dismissal consisted of 6 months net wages and contractual benefits totalling £10,068. The basic award was £330, there having been a break in service during the summer of 1998.

8. The Company's appeal came on for preliminary hearing before Miss Recorder Slade QC and members on 28 February2001. The Company did not attend, nor were they represented. Mr Smith sought an adjournment because he was ill.
9. Instead of granting the adjournment the Employment Appeal Tribunal proceeded to consider the case on the papers and allowed the appeal to proceed on 3 specified grounds only. They were:

(1) whether the finding that the document dated 6 August 1998 was a written contract entered into between the Applicant and Mr Guterman on behalf of the Company was a perverse finding

(2) whether the finding that although the Applicant resigned as director he did not resign as an employee of the Company, was a perverse finding and

(3) if the point was taken before the Employment Tribunal, whether any loss of earnings suffered by the Applicant as a result of his being unfairly dismissed ought to have been limited to two weeks loss because on 20 August it came to light that the Applicant was responsible for concealing 2 secret contracts, his and that of the Football Club manager, Kevin Ratcliffe, from the board and that discovery of those facts would then have entitled the Company to terminate his employment summarily and fairly.

10. The full appeal hearing was listed for today by a notice sent out on 4 July 2001. In preparation for the appeal Mr Smith himself prepared a lengthy skeleton argument which he submitted to the Employment Appeal Tribunal under cover of a letter dated 27 September 2001 and Mr Johnston of Counsel, instructed on behalf of the Applicant, Respondent to the this appeal, prepared a skeleton argument which was also lodged.
11. One week ago today, it appears, the ownership of the Football Club was transferred from Mr Smith to new owners. As a result, earlier this week an application was made by solicitors acting for the new owners, Deardons, for an adjournment of today's hearing so that they could consider the papers in this case in detail.
12. Asked for their comments solicitors for the Applicant vigorously opposed the adjournment application. I directed on 2 October that the matter should remain in the list but that the Appellant company could renew their application for an adjournment before the full Tribunal sitting today. Warning was given that if that application proved unsuccessful, the hearing of the appeal would proceed immediately thereafter.
13. This morning the application has been renewed by Mr Latham on behalf of the company. He submits that it is a complex matter which had been dealt with hitherto by Mr Smith; that not all the papers have been received; that there was a possibility of settling the matter and he asks for an adjournment on the basis that the costs of today will be paid.
14. That application was opposed by Mr Johnston who points out that the original Employment Tribunal hearing took place in February 2000 and that consequently the Applicant has been waiting some 18 months for this appeal to be heard. He submitted boldly that the appeal was hopeless; that it was in fact a simple case and that, notwithstanding the offer to pay the costs throwing away by the Appellants, the Applicant preferred to have the case dealt with as soon as possible.
15. Balancing those conflicting interests we came to the conclusion that the matter should proceed and accordingly called on Mr Latham to advance the appeal.
16. This Tribunal, at the preliminary hearing, directed that the Chairman's notes of evidence should be obtained in this case. Those notes having been obtained it is submitted by Mr Johnston that the first two points on which the appeal was permitted to proceed that is whether or not the contract dated 6 August 1998 was a genuine document and whether or not the Applicant resigned as an employee as opposed to a director are findings which were supported by evidence given to the Tribunal. It is not our task on appeal to retry factual questions. By no stretch of the imagination can either of those findings be said to be perverse in the true legal sense. Despite Mr Latham's best efforts we accept Mr Johnston's submission that no point of law is disclosed on either of the first two grounds permitted to proceed.
17. As to the third ground of appeal, the question of whether the Applicant failed to disclose secret contracts entered into between the previous owner and both the Applicant and the manager Mr Ratcliffe, it is again clear from the Chairman's notes of evidence that no such point was taken during course of the hearing below.
18. No exceptional circumstances permitting us to consider a new point on appeal have been or indeed could be advanced by Mr Latham and it follows that that third ground also fails. In these circumstances we shall dismiss this appeal.