United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M F JENKINS (Representative)


 


HER HONOUR JUDGE WAKEFIELD

1. This is the preliminary hearing of an appeal by Miss Shalini Patel against a Decision of an Employment Tribunal sitting at Ashford. By the Decision, for which Extended Reasons were sent to the parties on 1 July 2003, the Tribunal found that the Appellant had been unfairly dismissed by the Respondent but that her award should be reduced by 75% because of her own conduct contributing to the dismissal.
2. The brief background facts were that the Appellant had been employed by the Respondent from 15 December 1999 as a part-time finance worker. Concerns having arisen as to the state of the Respondent's finances and the Appellant's work, the Appellant was suspended on 22 March 2002 and invited to attend an investigatory interview which was fixed for 10 April. At that interview a suggestion was put forward on behalf of the Appellant that she would be prepared to leave the Respondent's employ in return for a specified sum of money.
3. There was then some correspondence between the parties as regard this, in the course of which on 5 May 2002 the Respondent sent to the Appellant a number of written questions relating to the Respondent's finances which the Appellant was asked to answer. Negotiations as regards a compromise broke down and on 20 June 2002 the Respondent wrote to the Appellant lifting the suspension and inviting her to attend an interview on 25 June when the questions previously sent and not yet answered were to be addressed. The letter ended:

"The answers you give to these questions will decide whether or not we take disciplinary action."

That is a letter that we have not seen ourselves but which was clearly in the bundle before the Employment Tribunal and is referred to at paragraph 15 of the Decision.

4. The Appellant attended the meeting alone although she knew she was entitled to representation. She complained to the three Trustees at the meeting that she had not had time to arrange for someone to accompany her but, as the Employment Tribunal found, she did not ask for a postponement. She then produced some answers to the written questions which she had been sent in May, but these answers were not, at least in the Respondent's view, full answers. One of the Trustees started to speak to her but she immediately left the meeting. She did not then return to work. On the same day, 25 June, the Respondent wrote to the Appellant to the effect that her actions that day were treated as a resignation.
5. In her Originating Application the Appellant claimed that she had been unfairly dismissed. The Respondent in the Notice of Appearance denied dismissing the Appellant and alternatively contended that any dismissal was for conduct and was fair.
6. The Employment Tribunal in the Extended Reasons set out fully its findings of fact, the law as regards unfair dismissal, constructive dismissal and contributory conduct, and as to that last set out fully sections 122(2) and 123(1) and (6) of the Employment Rights Act 1996. The submissions of both parties were then summarised, again in some detail, and finally, the Employment Tribunal concluded in its paragraph 37 that a reasonable employer would have waited to clarify the position first with an employee who was clearly angry at the time before interpreting her actions as a resignation. They therefore found that the Appellant had been dismissed and that the dismissal was unfair.
7. Finally the Employment Tribunal said in the paragraph which gives rise to this appeal, the following:

"we also find that the Applicant did culpably contribute towards her dismissal by her conduct. We believe that, as the Applicant was on paid suspension, she did have time to respond earlier than she did to the questions which had been provided about seven weeks earlier, to which she supplied limited answers at the hearing on 25 June. With regard to being accompanied, she could have telephoned on the Friday or Monday prior to the meeting to explain the difficulties she was apparently having in getting a suitable person to accompany her. She could have asked for an adjournment either then, or at the hearing itself, and should not have walked out as she did. She should, at the very least, have checked about going back to work, or contacted the Trustees subsequently as to what she should do. Instead, she did not communicate with the charity at all until 4 July, about a week after she had received the Trustees' letter of 25 June on about 28 June. We believe that her contribution was of a serious nature, and that, in all the circumstances, it is just and equitable to assess the degree at 75%."

8. By the Notice of Appeal, the Employment Tribunal is said to have erred in law in that firstly, the Decision as to the degree of contribution was one which no reasonable Tribunal could have reached and was contrary to the evidence because the first reason given (that the Appellant failed to submit answers to the Respondent's questions) was not culpable conduct because she acted in this way with the knowledge and agreement of the Respondent. Secondly it is said that the reason given that the Appellant should not have walked out of the meeting on 25 June, was not culpable conduct because the evidence of all the parties confirms that the Appellant was in an emotional state and the Tribunal failed to take this into account. The third reason given by the Employment Tribunal that the Appellant should have contacted the Respondents after June 25^th was, it is argued, not contributory conduct because the Respondents' decision was taken on June 25^th and no action or omission by the Appellant after that date could have contributed to it. It is said in the alternative that the reasons given by the Tribunal are not sufficiently detailed to provide an adequate explanation of how it arrived at its Decision.
9. As regards the taking into account of the Appellant's failure to answer the questions in good time, we are satisfied that the Employment Tribunal were right to take this into account in considering the contribution of the Appellant to her dismissal by her own conduct. There is nothing in the history of the matter, including in the correspondence, to substantiate the Appellant's assertion in the Notice of Appeal that the Respondents agreed to any delay in or failure to answer, nor can we find from the facts any basis upon which it can be said that the Tribunal were wrong to find that she should have answered sooner. This ground of appeal fails.
10. Likewise, it is quite clear from the Employment Tribunal's Decision that they did take into account the Appellant's emotional state at the time of the meeting on 25 June. It is clearly set out in paragraph 33 of the Tribunal's Extended Reasons when summarising the case for the Appellant, and also in paragraph 37 of the Reasons the Tribunal say that the Appellant was "clearly angry" at the time of the meeting. We are satisfied that this ground of appeal has no merit and it also fails.
11. Only as regards the third basis of the appeal do we find that there is a matter which ought to be fully argued. This is the apparent consideration and taking into account by the Employment Tribunal as contributory conduct, of what the Appellant did or failed to do after 25 June. If it is right that the decision to dismiss was made on 25 June, it may be that the Tribunal were wrong to take this matter into account. It is a matter that is arguable. That ground of appeal only therefore will go forward to a full hearing.