Appeal No. UKEAT/0143/12/SM
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
5 October 2012
Before
HIS
HONOUR JUDGE PETER CLARK
(SITTING ALONE)
MS
NORMA EASTMAN APPELLANT
TESCO
STORES LTD RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
PRACTICE AND PROCEDURE – Striking-out/dismissal
Unfair dismissal claim struck out at PHR at which Employment
Judge heard evidence from Claimant and Respondent and saw documentary
evidence. Findings of fact made adverse to Claimant’s case, justifying strike‑out
order. No remaining issues of fact (c.f. Balls).
HIS HONOUR JUDGE PETER
CLARK
Introduction
1.
This case has been proceeding in the London South Employment Tribunal.
The parties are Norma Eastman, the Claimant, and Tesco Stores Limited, the
Respondent. Following a PHR held before Employment Judge Zuke on
15 July 2011 the Claimant’s claim of unfair dismissal was struck out
under Employment Tribunals (Constitution and Rules of
Procedure) Regulations rule 18(7)(b) as having no reasonable
prospect of success by a reserved Judgment with reasons promulgated on
19 August 2011. Against that Judgment the Claimant appealed. Her
appeal was initially rejected by HHJ Birtles on the paper sift under Employment Appeal Tribunal Rules
rule 3(7). However, at an oral Appellant-only hearing held under EAT rule 3(10)
HHJ McMullen QC allowed the appeal to proceed to a full hearing on
two grounds, formulated in the Claimant’s skeleton argument for that hearing in
this way:
“(a) misapplication of […] ostensible (apparent) authority –
Claimant’s line manager [Yinka] had ostensible (apparent) authority;
(b) misapplication/misunderstanding of the law of strike out –
the case involved a central dispute of facts and should not have been struck
out.”
2.
Again, I observe that in the Claimant’s skeleton argument for the PHR
Mr Caiden specifically referred the Employment Judge to the Judgment of
Lady Smith in Balls v Downham Market High School
[2011] IRLR 217 EAT for the test to be applied in rule 18(7)(b) strike‑outs,
and the Judgment of Maurice Kay LJ in North Glamorgan NHS
Trust v Ezsias [2007] ICR 1126 CA, paragraph 29, holding
that where, as in that case, there is a crucial core of disputed facts strike‑out
should not follow save in exceptional circumstances. A further perversity
ground is not now before me at this all‑parties full hearing.
Background
3.
In the light of the issues raised in this appeal I remind myself that
under ET rule 18(2)(d) at a PHR an Employment Judge may consider any oral
or written representations or evidence. In this case
Employment Judge Zuke had before him documentary evidence; oral
evidence from the Claimant and from Mr Andrew Georgopoulos, personnel
manager at the Respondent’s Elephant & Castle store (both of whom had
earlier made witness statements); the forms ET1 and ET3; and submissions from
both representatives, Mr Caiden and Mr Parascandolo, a solicitor for
the Respondent. Mr Caiden’s submissions included, as I have indicated, a
detailed written skeleton argument.
4.
From that material the Judge found the following facts. The Claimant
commenced employment with the Respondent as a part‑time customer
assistant on 10 January 1998. In 2007, whilst working at the
Respondent’s Elephant & Castle store, the Claimant experienced very
difficult domestic circumstances causing her extreme distress. At that time
her line manager was Yinka and her store manager Lee Carbery. At paragraph 10
the Judge records:
“It was the Claimant’s case that she asked Mr Carbery for a
career break. She said that she did not complete an application form and did
not have any discussion whatsoever with Mr Carbery about what a career
break meant. She said that Yinka had told her she could definitely return to
her job at the end of a carer [sic] break.”
5.
The Judgment reasons continue:
“11. The Respondent granted the request for a career break.
Mr Carbery sent the Claimant a duly completed pro forma letter from the
management guidance document relating to a career break as follows:
‘I am pleased to confirm that your career break has been
agreed and that your break will start from 1 August 2007. The length of
your career break will be 4 years and you will need to give us 6 months [sic]
written notice before you return to work. Your manager will contact you to
discuss temporary work during your career work [sic] (usually every 6 months).
I hope that you will find your career break beneficial and I would also like to
thank you for all your hard work so far the company (sic).’
12. It was the Respondent’s case that it was inconceivable that
the Respondent would have granted a career break unless the Claimant had
completed and submitted an application form.
13. I prefer the Respondent’s evidence that the Claimant did
complete the application form. She may not remember doing so because, as she
told me, she was distressed at the time. Given the Respondent’s clear
procedures, in my view it is extremely unlikely that the Claimant would have
been granted a career break without completing the usual application form and
her application being considered and approved in the usual way.
14. Because the application form is at the back of the career
break booklet, I also make a finding of fact that the Claimant must have
received the booklet in order to complete the application form.”
6.
Thus the Judge made the following material findings of fact: (1) the
Claimant received the Respondent’s career break booklet and completed the
career break application at the back of the booklet, leading to the pro forma
letter from Mr Carbery set out at paragraph 11; (2) she was sent a
form P45 in about August 2007 (paragraph 15); and (3) as to the
Claimant’s oral evidence that Yinka told her she could definitely return to her
job at the end of her career break (paragraph 10), the Judge said this at
paragraphs 29 and 30:
“29. I find that there was no express agreement that the
Claimant could return to her old job on the termination of the career break.
On her own case she had no such conversation with Mr Carbery. I accept
that Yinka may have said something about a return to her old job, but he [sic]
was not in a position of authority to make any such agreement. The Claimant
knew that Mr Carbery was the higher manager, and it was he who approved
the career break.
30. I also find it inherently implausible that any manager would
give the impression that an employee could be guaranteed a return to their old
job four years hence, given the inevitable uncertainties about whether a
vacancy could be confidently predicted years in advance.”
7.
I repeat that the third ground of appeal – that the Judge’s finding that
the Claimant completed the career break application form (paragraph 13)
was perverse – is not now before me following the rule 3(10) hearing, nor
is any other perversity ground, in particular that the Judge made a material
finding of fact unsupported by or contrary to the evidence.
The appeal
8.
As to ground (a), the finding that Yinka did not have authority to
enter into an express agreement that the Claimant could, contrary to the
Respondent’s plain policy set out in the career break booklet, which the Judge
found she had received, have her old job back at the Elephant & Castle
store at the end of her career break is immaterial if in the circumstances the
Employment Judge found there was no such express agreement. I have heard
submissions this morning from Mr Caiden and Ms Tharoo as to whether
or not such a finding was made. Mr Caiden argues that the words in
paragraph 29, “I accept that Yinka may have said something about a return
to her old job”, are effectively a finding that the Claimant’s account in oral
evidence, although not, I interpose, in her form ET1 particulars nor in her
written witness statement, that Yinka had told her she could definitely return
to her job at the end of the career break, was accepted.
9.
I reject that submission and prefer that of Ms Tharoo. It is plain
to me, leaving aside the question of ostensible or apparent authority, that the
Judge did not accept the Claimant’s evidence that that guarantee of a return to
her old job was given by Yinka. He says in terms at paragraph 29, “I find
that there was no express agreement”, that the Claimant could return to her old
job at the end of the career break, and he explains that he finds it inherently
implausible that any manager, including Yinka, would give the impression that
an employee could be guaranteed a return to their old job. I also add, from
the reasons as a whole, that having found as a fact that the Claimant, contrary
to her recollection some years later, had received the career break booklet, it
is plain and obvious from the wording of the booklet set out at
paragraphs 5 and 6 of the reasons that there was no guarantee of a
return to the employee’s old job at the end of his or her career break.
10.
Thus, as to the first ground of appeal, I accept Ms Tharoo’s
submission that the question of ostensible authority simply does not arise in
circumstances where the Judge found as a fact on the evidence that no guarantee
of a return to the old job was given by Yinka, albeit, as the Judge was
conscious, Yinka herself did not give evidence before him.
11.
As to the second ground of appeal, the question of whether the Judge
misapplied or misunderstood the law of strike‑out, reliance is placed by
Mr Caiden on that passage in Maurice Kay LJ’s Judgment in Ezsias
at paragraph 29 where his Lordship said:
“It seems to me that on any basis there is a crucial core of
disputed facts in this case that is not susceptible to determination otherwise
than by hearing and evaluating the evidence.”
12.
Lady Smith builds on the guidance in Ezsias in the case of
Balls, but it is common ground before me, and I think apparent
from reading the reports, that no evidence was called in either of those two
cases. Similarly, in the case of Metropolitan Police
Service v Shoebridge UKEAT/0234/03, 8 June 2004,
Burton P presiding, the point that was considered in that case, a
jurisdictional point on a claim of victimisation, apparently was decided
without any evidence being called before the Employment Tribunal and
consequently, unsurprisingly, Burton J observed at paragraph 4 that,
“The facts must be taken to be assumed in Mr Shoebridge’s favour, because
this is a jurisdictional challenge […]”.
13.
I return to rule 18(2)(d) of the ET Rules of Procedure. Whereas
historically strike‑out claims in the civil courts in my experience and
recollection invariably proceeded on the basis that no evidence was called and
that the Claimant’s case was taken at its highest, that is not the position
under the rules in PHRs before Employment Tribunals, including PHRs convened to
consider an application, as in this case, by the Respondent for the claim to be
struck out under rule 18(7)(b). The rule makes it clear that the Tribunal
or Judge may hear evidence as well as considering oral or written
representations, and indeed take into account documentary evidence. That is
what Employment Judge Zuke did. I simply cannot accept the submission
made by Mr Caiden that it was not open to the Employment Judge at the PHR
to resolve core factual disputes. Having heard the evidence, he was, in my
judgment, entitled to resolve the factual dispute as to whether or not the
Claimant completed the application form that appears at the back of the career
break booklet and secondly as to whether or not she was given an oral guarantee
that she could return definitely to her old job at the end of the career break
by Yinka. That is the material distinction between the present case and the
cases of Ezsias and Balls. In those cases, factual
disputes remained unresolved at the PHR; in the present case, the two factual
disputes I have referred to were resolved by the Employment Judge against the
Claimant. Having so resolved them, he was entitled to conclude on that factual
basis that the unfair dismissal claim had no reasonable prospect of success for
the reasons that he gives at paragraph 31 and that are not themselves the
subject of this appeal before me.
Conclusion
14.
It therefore follows that this appeal fails and is dismissed.
