United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS K GIBBS (of Counsel) instructed by Messrs Raymond Saul & Co Solicitors 34 Commercial Road London E1 1LN
For the Respondent	MR I McGLASHAN Representative Peninsula Business Services Ltd 2nd Floor Stamford House 361 / 365 Chapel Street Manchester M3 5JY


 


MISS RECORDER SLADE QC

We have before us an application to amend the grounds of appeal in this case by substitution of new grounds which raise a point which has not been raised before, namely that the Tribunal erred in law in failing to give reasons for its decision.

What is also retained in the proposed substituted grounds is an attack on the finding of the employment Tribunal that the applicant, the appellant before us, resigned on 16^th May. It is said that in failing to address a conflict of evidence in relation to the date of the alleged resignation the Tribunal's finding was perverse. If we were to allow this application by substituting those grounds which have been dictated to us the appeal would proceed on the third grounds of appeal put forward in this fairly simple case. We are somewhat disquieted and surprised that this application is being made at a very late stage indeed.

Following a hearing on 6^th December 1999 the extended written reasons for the decision were sent to the parties on 15^th December 1999. Notice of appeal was served on 24^th January of last year. The ground of appeal which is principally being pursued now, namely failure to give reasons, was not raised in that Notice of Appeal.

The appeal came before a division of this Employment Appeal Tribunal for a preliminary hearing. It appears from the judgement of the Employment Appeal Tribunal and on the basis upon which this appeal was permitted to go forward, the Meek point, if I can call it that for shorthand, does not feature. The Employment Appeal Tribunal we were told, had before it a substituted notice of appeal or amended notice of appeal which had been settled the day before the hearing. That notice of appeal which was the notice of appeal before us, does not raise the Meek point.

The first time when the Meek point was raised, was in the skeleton argument served on behalf of the appellant on the 19^th February 2001. There was no attempt at the time of serving the skeleton argument to seek leave to amend the grounds of appeal. Indeed when this appeal was opened before us there was no attempt to amend the grounds of appeal. It was only on enquiry as to where to the point was in the grounds of appeal that the application eventually was made.

It appears that the skeleton argument which raises this point was served in good time on Mr McGlashan who appears for the Respondent in this case. To that extent he is not taken by surprise by the point, in that it is in the skeleton argument. However, this is not a ground which had been raised in the history of this case up to this point.

We are somewhat concerned and displeased by the way in which this ground of appeal has arisen but we are not satisfied that any real prejudice would be suffered by the point now being taken. Mr McGlashan of course will have any reasonable time that he wishes today to have access to Meek if hasn't already and to consider the point if he needs to consider it further. This is a situation which really should not arise, particularly where a party has legal representation. Points which are not points taken in the notice of appeal cannot be raised in the course of an appeal. The whole point of such pleadings as there are in this jurisdiction is to give parties full and proper notice of points that will be taken. That was not done in this case, and it was done by a side wind in the skeleton argument. That should not occur.

"Mr McGlashen, do you wish to have further time to consider the point or are you prepared to proceed with it now?" Mr McGlashen replied, "Carry on." "So be it."

1. This is an appeal from the decision of an Employment Tribunal which dismissed Miss Catt's claims for unfair dismissal and sex discrimination. The issue upon which the Employment Tribunal reached its decision was whether Miss Catt resigned or was dismissed. The Tribunal concluded that Miss Catt had not established that she had been dismissed and accordingly her claims failed.
2. The grounds of appeal have changed considerably over time. At the beginning of the hearing today, we gave leave to substitute new grounds for the then existing grounds of appeal. In the substituted grounds two principle points are taken. First that the Employment Tribunal failed to give adequate reasons for its decision. Miss Gibbs of Counsel who appears for Miss Catt has made it clear that that ground is directed to the finding relating to the date on which Miss Catt went into her place of work, during which visit the Tribunal found that she had resigned. It is said that the Tribunal failed to give reasons why it held that that date was 16^th May. No attack is made on the reasons why the Employment Tribunal preferred the evidence of her employer as to whether on that occasion she had in fact resigned. The second main ground of appeal is a ground of perversity. It is said that in the decision that it was on 16^th May that Miss Catt resigned is perverse. Again the perversity ground is raised to attack the date but not the fact of resignation. It is accepted by Miss Gibbs that it was for the Employment Tribunal, having heard Mr Kaschewski and Miss Catt to decide which evidence it preferred.
3. In support of the first main ground of appeal, Miss Gibbs draws our attention to the well known case of Meek v Birmingham City Council (1987) IRLR 250, in which the principle is stated and is oft repeated that a party is entitled to know why it has won or why it has lost. In this case Miss Gibbs says that the Tribunal have failed to state clearly why they concluded that it was on the 16^th May of 1999 that Miss Catt handed her medical certificate to Mr Kaschewski and stated that "after this I am not coming back I am through with it". As Mr McGlashen who appears on behalf of the respondent points out, in its decision the Tribunal does not just refer to the 16^th May of 1999 as being the date on which those events occurred, but there are many passages in its decision in which it refers to those events having occurred on 17^th not 16^th May.
4. The finding which is attacked is set out in paragraph 7 of the Tribunal's decision, in which the Tribunal state:

"We find that Miss Catt went to work on 16^th May 1999 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." "

The date of 16^th May is also referred to by the Tribunal in paragraph 17 of its decision, in which it states:

"It is our finding that the applicant resigned from the respondent's employment when she gave Mr Kaschewski a sick note on 16^th May."

However there are other passages in the Tribunal's decision in which it makes clear that the date of those events was 17^th May. At paragraph 6 the Tribunal record that Miss Catt went home early on 15^th May, she did not go into work the next day, the 16^th. Further, they set out a letter from Mr Kaschewski which he wrote to Miss Catt on 18^th June in which he referred to 17^th May of 1999 as being the date on which she gave notice to quit her job. In paragraph 17 of the decision, the very paragraph in which the Tribunal refer to the events having occurred on 16^th May, the Tribunal record that it was 17^th May when Mr Kaschewski considered that Miss Catt had given her notice. In the following paragraph, paragraph 18 of the decision, the Tribunal record:

"It is our finding that the applicant's employment terminated when the sick note, which she gave to Mr Kaschewski on 17^th May expired, 4 weeks later."

5. There is an obvious confusion in the Tribunal's decision as to whether the date was the 16^th or 17^th. If one were to have regard to the date mentioned most frequently on the decision it would be on the 17^th May that the Tribunal decide that these events occurred. It is plain from the witness statements which were placed before the Tribunal and which are in our bundle, that neither party contended that these events occurred on 16^th May, the competing contentions were that the respondent said that these events occurred on 17^th May and the applicant Miss Catt said that it occurred on 18^th May. In any event this is a confusion which could perhaps have been easily corrected by a certificate of correction or by an application for review. Neither of these courses of action was adopted in this case. We do not consider that the finding of the Tribunal as to the date on which the applicant resigned calls for any further explanation by the Tribunal. There was an obvious slip by the Tribunal in those two parts of its decision where it refers to 16^th May but in other passages of its decision there is reference to 17^th May, which was a date fully supported by the evidence produced before it. Accordingly in our view that first ground of appeal does not in any way advance the appellant's case.
6. The second ground of appeal raises an allegation of perversity. As we have referred to in considering the first ground of appeal the Tribunal are to be taken as having concluded that the conversation with Mr Kaschewski during which the resignation occurred, took place on 17^th May. The Tribunal themselves refer to the 17^th in passages in their decision and there was plainly evidence to support that conclusion. The evidence of Mr Kaschewski and also the date of the medical certificate is not inconsistent with the conversation having taken place on that day. It was a matter for the Tribunal as to whether they accepted the evidence of Mr Kaschewski on the one hand or that of Miss Catt on the other, and the Tribunal plainly accepted the evidence of Mr Kaschewski.
7. Some reliance is placed by Miss Gibbs in this part of her appeal on the alleged absence of a reference to a telephone conversation between Miss McKenzie, another employee at Porters Wine Bar, where the applicant worked, and the applicant, which took place on 19^th May during the course of which it was alleged before the Tribunal by Miss Catt that she had been told that she had been replaced by another employee. The Tribunal refer to that telephone conversation. They make a finding of fact in relation to it at paragraph 9 of their decision, stating that on 19^th May, Miss McKenzie informed Miss Catt by telephone that a former employee was going to meet Mr and Mrs Kaschewski with a view to returning to work at the wine bar. At paragraph 17 of the decision they find that there was no dismissal when Miss McKenzie told Miss Catt that Mr and Mrs Kaschewski were considering offering a job to a former employee. They say at that stage Miss Catt presumed that she had been replaced, that was not the case nor was it reasonable to have made that assumption. In any event both on the applicant's case and on the Tribunal's findings that conversation took place on 19^th May which was after the Tribunal had found there had been a resignation. Both on the applicant's case and on the respondent's case the telephone conversation with Miss McKenzie took place after Miss Catt had gone into her place of work, had handed in her medical certificate and left, having, as the Tribunal found, resigned.
8. On the issue of fact as to whether or not Miss Catt resigned on that occasion there is no appeal. The sole grounds of appeal are those which we have outlined and which relate to the date of the resignation referred to in the Tribunal's decision. For the reasons we have given this appeal must be dismissed.