United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS S McKIE (of Counsel) Instructed by: Messrs Eversheds Solicitors Cloth Hall Court Infirmary Street Leeds LS1 2JB


 


HIS HONOUR JUDGE J R REID QC

1. This is a tripartite preliminary hearing against Decisions of an Employment Tribunal held at Leeds. By its Decisions the Tribunal first of all held that the Appellant, Gameplay (GB) Ltd, had unfairly dismissed Ms McLaughlin. They then went on and fixed the quantum of compensation and they furthermore refused an application to review.
2. We have, as we say, the preliminary hearing of those three matters before us today; we indicated as soon as Counsel on behalf of Gameplay came to it that the appeal as to quantum should go for a full hearing and, as is the practice nowadays, we think we should say no more about that beyond pointing out that in relation to one part of the award, there is now a problem as a result of the Employment Appeal Tribunal's decision in Hull City Council -v- Dunnachie and others.
3. So far as the review appeal is concerned, the basis of that appeal was that the company had found after the hearing, on the back of a document containing what were said to be in terms of Ms McLaughlin's new role, various signatures of hers. She having denied that she had seen or had the document and the credibility of the witnesses having been a central matter in the hearing before the Tribunal, it was said that in those circumstances the Tribunal should have allowed a review either under Rule 13(d) or Rule 13(e). 13(d) provides for a review in respect of new evidence that had become available since the conclusion of the hearing to which the Decision relates providing that its existence would not have been reasonably known of or seen at the time of the hearing. (e) provides for a review where the interests of justice require such a review.
4. So far as (d) is concerned, as Counsel sensibly accepted, there were considerable difficulties about that because the front of the document had been photocopied and was before the Tribunal but, unhappily, the reverse with the supposed signatures on it had not been photocopied and it was only after the event that someone got round to discovering those signatures were there.
5. So far as (e) was concerned, it was said that notwithstanding that there was no handwriting evidence to show that the writing on the back of the document was that of Ms McLaughlin, nonetheless the Tribunal should have agreed to a review having done a comparison of their own with what was said to be a signature of hers produced at page 43 of the bundle.
6. In our judgment the Tribunal were well entitled to exercise their discretion to refuse a review on that basis; the various writings of the name "Eileen McLaughlin" on page 42 - it appears twice and the name "Eileen" appears independently on a further five occasions - are wildly different to see in their style, and the Tribunal were well entitled to say that they were not proposing to act as their own handwriting expert, and try and identify one or other of those as being in the same hand as that on page 43, still less to leap from that to the assumption that the filling in of page 43 had been done by Ms McLaughlin. It will be observed that what is on page 43 does not purport to be her signature, it merely says this:

"Management of health and safety - Appointed person(s)"

It then gives Ms McLaughlin's name and an obliterated address. In our judgment, the Tribunal were completely right to refuse to review the matter on the basis that little material was placed before it. That element, therefore, of this tripartite appeal will be allowed to go no further.

7. So far as the primary point is concerned, that is an appeal against the substantive liability finding, the first point taken on behalf of Gameplay is that the Tribunal did not take adequate account or any account of the fact that Ms McLaughlin's pleaded case until the first day of the final Tribunal hearing was one of constructive rather than actual dismissal, and secondly, that in finding that there was an actual dismissal, the Tribunal erred in taking into account reference to six months' settlement money and the consequences of paying it. It is asserted that such matters were only relevant to compromise should Ms McLaughlin have decided to resign and were not relevant to any pressure on her to sign or not to sign the new contract of employment.
8. The finding of fact was that Ms McLaughlin in a distressed state had her letter of resignation dictated to her. Having been bullied, she was visibly distressed and disadvantaged, and in those circumstances, she wrote the letter and signed it. So far as the question of whether this amounted to an actual or constructive dismissal, one could take the view either way. Does the person who is thrown out of the building and shouts "I resign" as they fly through the air, resign or are they actually dismissed? Is it constructive or an actual dismissal?
9. So far as the suggestion that there was some import in the fact that the actual writing of the letter having been at dictation was not referred to in the ET1 or in her witness statement, but was referred to in the course of her oral evidence, we see no great significance in that. It is to be noted that the company's grounds of resistance, paragraph 8, refer to the Applicant signing a resignation letter stating this payment was to be in full and final settlement, which is, we think, at any rate, an indication that it was the company's own acceptance that the letter was dictated to her rather than of her own composition. There is nothing in that point.
10. Secondly, it was said that the Tribunal erred in finding that Gameplay was not aware of the terms and conditions in Ms McLaughlin's 1999 contract of employment. It was accepted that Mr Mee himself being a joint Managing Director, was not aware of the terms because it was said that he had left the terms and delegated the whole question of contracts of a group of people whom he said he had bought as part of the management buy-out in 2001, to those advising him at the time of the management buy-out. The expression "a group of people whom he had bought" gives some indication of the manner in which Mr Mee regarded the employees of the company which he had acquired.
11. The Tribunal were, in our judgment, quite entitled, taking account of Mr Mee's evidence, and taking account also of what it appears from the Decision Ms Burke had to say, to form the view that Mr Mee and Ms Burke were obviously not aware of the Applicant's duties when they took over the company. It is unfortunate that the Tribunal described Mr Mee and Ms Burke as the Respondents, which of course they were not. The company was the Respondent, but it seems to us clear that what the Tribunal were finding. It does not seem to us that there is anything contradictory in that and it seems to us that that was a plain and justifiable finding to make. It further seems to us that if one reads the Tribunal's Decision as a whole, the reasoning by which they came to their conclusion is clear. The reasons why they preferred the evidence of Ms McLaughlin to the evidence of Mr Mee and Mr Burke, is also adequately clear. The Tribunal makes plain reference to points of difference between their evidence and the Tribunal, it seems to us, makes it adequately clear why it was they accepted the evidence of Ms McLaughlin rather than the evidence of the two Directors.
12. Counsel, repeatedly in the course of her submissions, said "I fail to understand and I fail to see". It is of course immaterial what Counsel understands or what Counsel sees, what the Tribunal is interested in is what Counsel's submissions are. If what was meant was that it was submitted that the reasoning was not clear enough to inform anyone reading it why the Tribunal had reached the conclusion it did, the submission was incorrect. In our judgment, there was adequate evidence, adequately explained, for saying why it was there was a difference between the old and the new roles and, in our judgment, there is no substance in this point of appeal. It is unfortunate that the Tribunal made no reference to the evidence before it, of Craig Kelly, who it was submitted was undertaking much of Ms McLaughlin's role as Customer Services Manager after March 2001, but when one reads the Decision as a whole, it does not seem to us that this lacuna adversely affects the totality of the Decision.
13. So far as the decision to dismiss, the reasons for it and the unfairness of the dismissal, it is clear that the company was in some financial straits; it is clear also that they wished the Respondent, Ms McLaughlin to sign a new contract and that she was unhappy to do this. The reasons that she gave are recorded in paragraph 8(xiii) of the findings, some of those were dealt with and some were not when the matter came to be debated between the Applicant Ms McLaughlin and Ms Burke and Mr Mee.
14. It may be that (given the suggestions made that it would be cheaper to make others redundant, or that it was possible if she had to be paid six months by way of severance pay, that the company would be forced into administration) the company was in a position where had it dealt with the matter otherwise, it could have established either that Ms McLaughlin was redundant or there was some other substantial reason why she should be dismissed. What, however, shines through and is crystal clear is that the way in which the company acted through Mr Mee and Ms Burke was such that the dismissal was one which was unfair. No argument has been addressed to us which indicates that there is any viable argument for suggesting that the dismissal was fair; the manner of dismissal and the circumstances in which it took place could only have been unfair, even though it may be that had matters been conducted otherwise by Gameplay, they might have been in a position to terminate Ms McLaughlin's employment without falling foul of the employee protection legislation.
15. There is nothing which we have seen in the Skeleton Argument produced to us, or in the Notice of Appeal, or in the oral submissions that we have heard, which indicates to us that there is any point on this, the third part of this tripartite appeal, which should go to a full hearing. It follows, therefore, that we allow the appeal to go to a full hearing only in relation to question of quantum. So far as that is concerned, subject to anything Counsel may say, I would have thought that the appropriate category was category C and the appropriate time estimate half a day.