Russell Berman (t/a Russell Bernard Hair Group) v Jelley [1992] UKEAT 455_91_1809

EAT
Russell Berman (t/a Russell Bernard Hair Group) v Jelley
[1992] UKEAT 455_91_1809 · 1992-09-18
MR JUSTICE WOOD (PRESIDENT): This is an appeal from Decisions of an Industrial Tribunals sitting at Bedford in February and June 1991. This is the history of the matter, and I am giving this judgment at some length so that the Chartered Accountants involved should be able to understand the situation. The proceedings start with an Originating Application dated the 18th November 1990 when the Applicant, Miss Jelley, alleged that she had been unfairly dismissed by the Respondent, Mr Berman, who was trading under the name Russell Bernard Hair Group and had a group of hairdressing establishments.The first issue raised was whether or not Miss Jelley had sufficient two years qualification to bring her proceedings and that would be under Section 64 of the 1978 Act. That preliminary issue was heard on the 19th February 1991 by an Industrial Tribunal sitting at Bedford under the Chairmanship of Mr Scholfield.

(i) there is the clear statement:

"The applicant tells us that her employment there started on the 24 October 1988 and this is confirmed in Mr Semler's written statement."
Mr Semler was her previous employer and he had given a statement which was before the Tribunal indicating and supporting the Applicant in that matter.There was an application for review in a letter from Solicitors acting for Mr Russell Berman. That was heard on the 18th June and the basis of that application for review was that there was evidence indicating that the Tribunal were wrong on the facts in deciding that there had been two years qualification period. They deal with that in paragraph 4 and say this in the third sentence:
"As against that, we have had a letter from Mr Semler himself, dated 15 February 1991 giving the date of the start of the applicant's employment as 24 October 1988. We have the Apprenticeship Agreement signed by Mr Semler on 24 October 1988."
They also had a letter from Mr Semler's accountants and the evidence of Miss Jelley herself. They therefore say, "on the facts we are quite satisfied that the two year period has been proved".Therefore on the 18th June they examined the merits of the case itself, found that Miss Jelley had been constructively dismissed and that she was entitled to have decided to leave. The principles of law there set out are the well known principles in Woods v. W M Car Services [1981] ICR p.666 and we are quite unable to discern any error of law. The knub of the reasoning is in paragraph 11:
"We accept the applicant's evidence that after the incidents on the 20 October she could not be expected to stay in the respondent's employment. The implied term referred to by Mr Justice Browne-Wilkinson was breached by the respondent in this case; the applicant was therefore entitled to leave, and to treat herself as constructively dismissed. There is no doubt about the unfairness; the respondent behaved unreasonably in all the circumstances. We have unanimously decided that the applicant was unfairly dismissed."
The Notice of Appeal is dated 8th August 1991, it is signed, seemingly, by Counsel and it seeks to reopen the issue of a qualifying two years. In the first place the Notice of Appeal does not refer to that specific decision but only to the decision on liability, however, that point we will not take. There is no fresh evidence that we can see and Miss Joseph has quite properly put before us that only two matters which she can. Applying the principles of Ladd v Marshall [1954] 1WLR p.149 the very first of the three principles there involved is the evidence should not have been available at the initial hearing, or that the party was taken so wholly by surprise on the issues which were before it that they should be allowed to introduce the fresh evidence at a later stage on appeal, we apply the same principles to the Court of Appeal. It is abundantly clear that the evidence which is sought to be adduced was available at the time and indeed, part of it, seems to have been presented to the Tribunal on the Review Decision on the 18th June 1991, they rejected it.The second upon which the Notice of Appeal is put forward is that there was no opportunity to submit evidence and to be heard. In that connection it is fair to point out that the Respondent did not attend at the first hearing and did not attend at the second hearing, he sent a Solicitor's letter, so this was a deliberate decision. It may be that the Respondent foresaw some of his financial problems, if so it would not be the first time in this Court that Respondents simply do not turn up at the initial hearing and then appeal and start arguing the matter here. That is an aspect of the procedures of these tribunals that merits some perusal, some re-investigation, it is apparently a practice which is somewhat prevalent where financial problems are arising.The the third ground in the Notice of Appeal is that the Tribunal failed to have regard to written representations. It is quite clear that they did have a regard. Lastly, that the Applicant, Miss Jelley had failed to mitigate her loss. It is for the Respondent to raise the failure to mitigate at the hearing, if you do not turn up and do not take the point it ill behoves you, or anyone that steps into your shoes, to argue that the point was not taken. There is therefore an award in favour of the Applicant of £3,670. We hope that she gets priority in any financial arrangement and that Chartered Accountants now acting will bear that in mind.There is no ground whatsoever for this appeal and there is no ground despite Miss Joseph's able attempts for an adjournment. This is a hopeless appeal and it is dismissed.We award costs assessed at £200.