United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT


 


MR JUSTICE MAURICE KAY:

1. This matter is listed before us today as the preliminary hearing of the appeal by Hoopers of Leigh Limited against the decision of an Employment Tribunal sitting in Manchester on 3 August 2001 when Mr J.M. Whittaker, a Chairman, sat alone. He decided that Hoopers should pay Mr Atkinson the sum of £177.60 by way of wages or damages for breach of contract. Hoopers seek to appeal against that decision. They have indicated that they do not intend to be present or represented today. In other words, we are invited to deal with the matter on the papers.
2. The claim fell into two parts. The first part was a claim for wages in respect of Monday 12 March 2001. The case for Mr Atkinson was that he had worked eight hours that day. His hourly rate was £3.70 and that he was entitled to £29.60. The case for Hoopers was that Mr Atkinson had not worked that day because he had been sick. That was a matter of conflicting evidence. Mr Atkinson gave evidence and, on behalf of Hoopers, Mr Churchman gave evidence. Their respective evidence is set out in paragraph 1 of the Extended Reasons.
3. The Chairman was impressed by the fact that Mr Atkinson could clearly recall specific events about the disputed Monday and gave reasons as to why he preferred the evidence of Mr Atkinson to the evidence of Mr Churchman. In those circumstances, that being a clear matter of fact for the Tribunal below, there is no basis upon which we could or should interfere with the finding in Mr Atkinson's favour.
4. The second element of the £177.60 arose out of the circumstances in which Mr Atkinson's employment came to an end. He claimed that he had been dismissed. The case for Hoopers was that he had resigned. The crucial conversation had been between Mr Atkinson and Mr Hooper, a senior proprietor of Hoopers. Unfortunately, Mr Hooper did not attend before the Tribunal, apparently because of illness. We do not know whether there was an application for an adjournment. If there was clearly it was refused.
5. What then happened was that Mr Atkinson gave his account of the final moments of the employment relationship and Mr Churchman gave evidence of a hearsay kind as to what Mr Hooper had told him. The part of the Decision referring to that aspect of the case is in these terms:

"He [Mr Hooper] did not submit any signed written statement or, perhaps more importantly, sworn statement to substantiate his evidence. He simply indicated through Mr Churchman, albeit on oath, that nothing had been said which the applicant could have interpreted as dismissal. Mr Churchman said that Mr Hooper had told the applicant that when his sickness had been sorted out to let him know, but that the company would have to take on temporary people in the meantime. By contrast, Mr Churchman indicated that Mr Hooper had told him that they needed somebody to do the job immediately and that it was best that they should part company. The Tribunal concluded that a reasonable employee would interpret those words and phrases as bringing their employment to an end. Nothing was said to the contrary by Mr Hooper. The Tribunal … preferred the sworn evidence of the applicant to the evidence which was given by Mr Churchman. On that basis the applicant, under the written terms of his contract of employment was on termination entitled to receive one week's notice."

That produced a further figure of £148 by way of damages for breach of contract.

6. The grounds of appeal, so far as that aspect of the case is concerned, begin with a complaint that the decision erroneously attributes to Mr Churchman, and through him Mr Hooper, words said on the day and there is a signed statement from Mr Churchman to this effect:

"The statement 'Mr Churchman told him it was best to part company' is incorrect. I never said that or words to that effect."

7. Looking at the Extended Reasons, it is abundantly clear to us that they contain a typographical error. What is attributed to Mr Churchman by way of an indication that Mr Hooper had said "It was best that they should part company" should in fact have been attributed to Mr Atkinson. Clearly the Chairman was placing side by side the two accounts. He had already set out what Mr Churchman stated Mr Hooper had said, namely that the Company would have to take on temporary people in the meantime.
8. The fact that the subsequent reference to Mr Churchman was a typographical error is obvious because otherwise there would not be set out in that paragraph what, in fact, Mr Atkinson had said. The whole paragraph only makes sense on the basis to which we have referred.
9. Taking that to be the case, so far as the evidence is concerned, the Tribunal had Mr Atkinson's evidence and found him to be an impressive witness. The Tribunal was entitled to prefer his evidence to that which had been given by Mr Churchman, albeit on a hearsay basis.
10. Having regard to the sums of money in issue and the fact that the employer had taken no steps to procure a signed or sworn statement from Mr Hooper, if there was an application to adjourn, then, having regard to the amount in issue, in our judgment the Tribunal was entitled to refuse such an adjournment. Once again, we come to the conclusion that this was entirely a factual matter. It was for the Tribunal to come to a conclusion, on the evidence, as to where the probable truth lay. It came to a conclusion: that conclusion in our judgment is not assailable or arguably so. It follows from all that that we shall dismiss the appeal at this stage.
11. We record our observation that the Decision was not the most carefully prepared. At two points the Extended Reasons refer to the Tribunal "unanimously" preferring the evidence of one person rather than another. Unanimity is hardly surprising in view of the fact that the Chairman was sitting alone and that rather careless mantra ought to have been avoided. Indeed, both that and the typographical error, which has given rise to the appeal, ought to have been picked up at the latest when the Employment Appeal Tribunal invited the Chairman to comment on the issues raised in the Notice of Appeal. Unfortunately, the Chairman declined that opportunity.