Mitchell v Sherburn Stone Co Ltd [1992] UKEAT 598_90_0206

EAT
Mitchell v Sherburn Stone Co Ltd
[1992] UKEAT 598_90_0206 · 1992-06-02

JUDGE HAGUE:

This is an appeal brought by Mr Mitchell against the unanimous decision of an Industrial Tribunal sitting at Newcastle upon Tyne sent to the parties on 27th September 1990. By their decision in favour of Mr Mitchell's former employers, Sherburn Stone Co Ltd ("the Company") they dismissed his claim for unfair dismissal. They found that there had not been a dismissal and therefore the question of unfairness did not arise.The background facts of the matter are these. Mr Mitchell had been employed by the Company as an HGV Class 1 lorry driver since June 1979. On the 17th May he experienced some severe chest pains and went off sick, and never in fact worked again for the Company. In December 1989 and January 1990 there was some contact between the Company and Mr Mitchell concerning the possibility of other employment including that as a clerk at a quarry weighbridge. At that time, it was realised by the Company that Mr Mitchell would not immediately be fit to resume his work as a lorry driver but might be able to do some lighter work. On the 5th March 1990 a telephone conversation took place between Mr Mitchell and Mr Allison, the managing director of the Company. In that telephone conversation Mr Mitchell indicated that he thought that the doctor would sign him off from being sick at the end of the week. The end of the week was the 9th March. Mr Allison told Mr Mitchell to ring again then and Mr Mitchell did so.There was before the Tribunal a direct conflict of evidence between Mr Mitchell and Mr Allison as to what was said in that telephone conversation, which the Tribunal regarded as crucial to the question of whether or not Mr Mitchell was dismissed. According to Mr Mitchell, Mr Allison said that he had no job he could offer to Mr Mitchell, and told Mr Mitchell that he should sign on as unemployed. Mr Allison's account of the telephone conversation was that he told Mr Mitchell that he did not have any work for him at the time but that he told Mr Mitchell to report for work on the following Monday which would give Mr Allison time to speak to the truck foreman and quarry manager about the possibility of work; but he explained to Mr Mitchell that if no work could be found for him on the Monday he would have to be laid off temporarily. In fact Mr Mitchell did not go to work on the Monday. On that date or at any rate very soon afterwards he went to the Social Security Office and claimed unemployment benefit. Mr Allison was concerned in Mr Mitchell's claim for benefit in the way we shall describe in a moment.On that conflict in the versions of the telephone conversation the Tribunal came down on Mr Allison's side. What they said in paragraph 3 of their Reasons for the Decision was as follows:
"We prefer and accept Mr Allison's account of that conversation and find that Mr Mitchell was not entitled to draw therefrom the conclusion that he had been dismissed. Indeed, from the evidence which we heard as to the various contacts between Mr Mitchell and the Company over the preceding months we drew a very firm conclusion that Mr Mitchell was far from enthusiastic about returning to work for the Company in any capacity."
On this appeal, Mr Mitchell has sought to challenge that finding, and to say that the Tribunal should have preferred Mr Mitchell's account of the conversation. We have had the benefit of the Chairman's full and careful Notes of Evidence. We have also seen a copy of the UB85 form filled in by Mr Allison and two letters sent by Mr Allison to Mr Mitchell.It is convenient at this point to refer to the powers of this Appeal Tribunal. Under Section 136(1) of the Employment Protection (Consolidation) Act 1978 an appeal lies to this Tribunal from an Industrial Tribunal only on:
"A question of law arising from any decision of, or arising in any proceedings before, an industrial tribunal"
There is therefore only an appeal on law and no appeal on fact. Parliament has thought fit to provide that the determination by local Industrial Tribunals of the facts of any case shall be final. It is only in rare cases that this Tribunal feels able to say that there has been an error of law when the real point at issue is a question of fact. Those instances, very briefly, are where the industrial tribunal has clearly taken into account something it should not have taken into account, or clearly failed to take something into account which it should have taken into account, or where the appeal tribunal considers that the industrial tribunal's findings are such that no reasonable and properly instructed tribunal could possibly have come to such a conclusion (the usual way it is put is "the finding is perverse"). However, as we have said, that situation only arises in rare cases.Mr Liddle, of the Houghton District Advice and Support Centre, who represented Mr Mitchell before the Tribunal and who has represented him again before us, has sought to persuade us that this is a case where we should interfere with the decision of the Tribunal, and he takes a number of points. First he says that Mr Allison contradicted himself as to the date on which Mr Mitchell's employment came to an end. There is some substance in that. In paragraph 8 of the Company's Notice of Appearance Mr Allison had said Mr Mitchell terminated his employment in December 1989 by default, although it is not easy to reconcile that particular statement with the ticking of the box marked "yes" in paragraph 4 of the Notice which asks "Are the dates of employment given by the applicant correct?" The December 1989 date was repeated in a UB85 form which we will refer to in a moment. At one point in his evidence Mr Allison also seemed to be saying that the employment terminated in January 1990. However, this particular point, which perhaps was not a straightforward one, was clearly resolved before the Tribunal by a concession by Mr Allison on behalf of the Company that the employment was not terminated before the 9th March 1990.Mr Liddle's second point concerns the UB85. At the request of Mr Mitchell, Mr Allison filled in this Form (which is a form to be completed by a claimant's previous employer) and sent it to the Social Security Office. It is helpful to look in a little detail at one or two of the matters that are revealed by that. To start with, the form sets out "the dates when the person has said that he had worked for you" and the final date apparently specified by Mr Mitchell was 9.3.90. Mr Allison in the Form said "No" that date was wrong and the correct date was 1.12.89. Later in the Form he indicated that Mr Mitchell had not been given notice. He also indicated that Mr Mitchell had not left voluntarily or because of redundancy, nor been discharged for unsatisfactory conduct, but he ticked the little box marked "discharged for other reasons", the date of discharge being the 1.12.89. The reasons for that were stated by Mr Allison as:

"No sick notes received from 1.12.89 or communications"

The Form is somewhat enigmatic, and nobody now supports what is said in it. What it does not do, of course, is to say that Mr Mitchell was dismissed on the 9th March 1990. It does contain, as we have indicated, some rather odd statements. Mr Liddle duly cross-examined Mr Allison about it and the Chairman of the Tribunal followed up Mr Liddle's questions about it. Mr Allison was not really able to give any satisfactory explanation for what he had put in there except that he said that he had been trying to help Mr Mitchell. The Tribunal clearly had that particular matter in mind, for at the end of paragraph 3 of their Reasons they say:
"We accept the evidence of Mr Allison that when he completed that form he was endeavouring to help Mr Mitchell to obtain Unemployment Benefit, an endeavour which was successful."
Mr Liddle's next point was that, as he put it, Mr Allison contradicted himself as to his knowledge of Mr Mitchell's unfitness to drive a truck. With all respect to Mr Liddle, we cannot accept this point as a valid one. The Chairman's Notes do not reveal any evidence of a statement by Mr Mitchell to either Mr Allison or to anybody in the Company that he would definitely be unfit to drive in March. The fact that Mr Mitchell was offered a lighter job at an earlier stage is perfectly consistent with the idea the Company had that Mr Mitchell was recovering and could do a light job to start with and later on might well be fit to return to work as a driver. On that particular matter the Tribunal found as a fact at the end of paragraph 5 of their Reasons, and it seems to us that there was evidence on which they could do so:
"and for his part Mr Mitchell failed to inform the Company that not only was he unfit to resume his duties as an HGV driver, but that in the foreseeable future he was likely to remain unfit to resume those duties."
The next point taken by Mr Liddle was that when Mr Mitchell and Mr Allison had their telephone conversation on the 12th (or perhaps the 14th March) concerning the unemployment benefit claim, Mr Allison did not, as perhaps he should have done in accordance with good industrial practice, either ask Mr Mitchell why he had not turned up for work as he, Mr Allison, had been expecting or clear up the whole position and the misunderstanding which had apparently arisen as to whether or not Mr Mitchell had been dismissed. It may well be that more might have been done at that stage, and indeed the Industrial Tribunal says that one of the troubles about the case was a lack of communication. But that was after the relevant date and the question really is whether or not there was a dismissal at an earlier stage.Mr Liddle's final and overall points were that the Tribunal gave no reasons for preferring Mr Allison's version of the telephone conversation to Mr Mitchell's and that they had no evidence on which they could properly rely for so doing. We are afraid we are quite unable to agree with that. There was ample evidence on which they could come to that conclusion, the evidence of course being the direct evidence of Mr Allison himself. The Tribunal saw and heard the various witnesses and were entitled, we think, to come to the conclusion that they did. Clearly, they must have had in mind the matters raised by Mr Liddle. They made findings as to the date of dismissal; they made findings about the UB85; they made findings about what Mr Mitchell had said about his fitness to drive; and they made comments about the lack of clear communication. It seems to us that it is quite impossible to say that the Tribunal did not take account of anything that they should have taken account of. In our view there was clear evidence on which they were entitled to come to the conclusion which they did do and this case falls a long way short of being a perverse decision. There is no error of law and we must therefore dismiss the appeal.