Copeman Hart & Co Ltd v Berzins [1993] UKEAT 183_91_1301

EAT

Copeman Hart & Co Ltd v Berzins

[1993] UKEAT 183_91_1301 · 1993-01-13

JUDGE HICKS QC :

The employers, Copeman Hart & Co Ltd, appeal to this Tribunal against the decision of the Industrial Tribunal that they, the employers, had failed to comply with section 53 of The Employment Protection (Consolidation) Act 1978 by unreasonably refusing to provide a written statement on request of the reasons for their dismissal of the Respondent to this appeal, Mr Berzins.

Mr Berzins was dismissed by a letter dated 6 July 1990 and on the 15 August 1990 he wrote what was on his case, and accepted by the Industrial Tribunal to be, a sufficient request for the purpose of section 53. It is not in dispute that there was never any reply to that and those were the undisputed facts against which the Industrial Tribunal had to reach its decision. What Section 53 of the Act provides is as follows:

"(1) An employee shall be entitled (a) if he is given by his employer notice of termination of his contract of employment...

to be provided by his employer, on request, within fourteen days of that request, with a written statement giving particulars of the reasons for his dismissal...

(4) A complaint may be presented to an industrial tribunal by an employee against his employer on the ground that the employer unreasonably refused to provide a written statement... and if the tribunal finds the complaint well-founded -

(a) it may make a declaration as to what it finds the employer's reasons were for dismissing the employee; and

(b) it shall make an award that the employer pay to the employee a sum equal to the amount of two weeks' pay."

In this case the Tribunal found the complaint well-founded, to use the terms of the section, that is to say they found that the employers had unreasonably refused to provide the required written statement.

Mr Hart on behalf of the employers makes three criticisms of the decision of the Tribunal. He says they erred in law in three respects, and first in treating the letter of 15 August 1990 as a valid request by Mr Berzins for the purposes of section 53. Mr Berzins' letter of 15 August 1990 reads:

"Dear Ernest,

Having taken advice recently from several sources, I have been recommended to write to you to seek clarification regarding the reasons for my leaving your employment. This is primarily to assist me in compiling an accurate C.V., but also the circumstances of my departure will need to be investigated by the unemployment benefit office to determine my eligibility for payments. If I have been dismissed for breach of contract or misdemeanour would you please advise me what my fault was - if however (as you suggested during a conversation recently) dismissal is too strong a term, would you please suggest alternative wording.

Yours sincerely"

and it is signed.

That is a letter written by a lay person. It may be that lawyers would have written in more precise terms, or even have referred specifically to section 53, but the question is whether the Industrial Tribunal erred in law in treating that as a request within S.53 and we find it quite impossible to decide that they did. The section uses the phrase "a written statement giving particulars of the reasons for the dismissal". What the letter required was "clarification regarding the reasons for my leaving your employment". It seems to us that that plainly, given the fact that Mr Berzins was writing as a layman, was a sufficiently clear request under the section. The fact that he went on to give two reasons why he required it, namely to assist him in compiling an accurate CV and to deal with any investigation by Employment Benefit Office, does not seem to us to detract from its validity as a request, indeed it emphasises one point that is clear from the authorities and that is that such a statement is required not just so that the employee knows the reasons - he may know them already - but so that he has a document which he can produce to third parties.

In any event it is not for us to decide whether this was a sufficient request or not; it was for the Industrial Tribunal to decide and unless they erred in law in reaching the conclusion which they did, that point cannot suffice to upset their conclusion. We are quite satisfied that they did not err in law in that respect.

The second error of law which Mr Hart advances is that the letter of dismissal itself dated 6 July 1990 in any event gave adequate reasons for the purposes of the section. There are two stages of that submission. The first concerns whether as a matter of fact the letter of 6 July did give sufficient reasons but the second question is - Whether, as a matter of law, a letter which predates the request under section 53 can ever be a compliance with it? Since the point is in our judgment conclusively answered by that second question of law we do not need to go into the issue of fact as to whether sufficient reasons were contained in the letter of 6 July. I say that the matter is answered as a point of law because it was dealt with by the Court of Appeal in the case of Gilham & Others v Kent County Council

[1985] IRLR 18

. The facts there were, so far as relevant for the present purposes, that having received a request for reasons the employers replied by enclosing, under a covering letter, a copy of the reasons given at the time of dismissal itself. The relevant passage of the leading judgment in the Court of Appeal given by Lord Justice Waller, with whom the other members of the Court of Appeal agreed, reads as follows:-

"In my view, [the employers] fully complied with the requirement of s.53. The requirement of s.53 is that once a request has been received, the employer must , [and that word is emphasised] within 14 days, provide in writing [and those words are emphasised] a statement from which can be read the particulars for the reasons for the dismissal. Provided the covering letter refers unambiguously to the earlier letter which had been sent to the employee giving the reasons for dismissal, and provided a copy of that letter is included by the employer, it is a sufficient compliance with this section. Its purpose obviously, is to enable the employee to have some documentation in front of him which he can produce to anybody who wants to know why he was dismissed."

It is plain from that that there must be a response within 14 days after the request for compliance with section 53. In referring to the 14 days I am not pre-judging a quite different issue - whether the employer has unreasonably refused if he goes beyond the 14 days; that is a separate matter - but the passage I have read quite plainly deals with the issue whether a letter of dismissal can itself be a compliance with section 53 notwithstanding that no response is given to the later request. The answer is that it cannot, and therefore the Industrial Tribunal did not err in law in failing to treat the letter of 6 July 1990 as compliance with section 53.

The third ground on which Mr Hart says that the Industrial Tribunal erred in law is that he says their decision is vitiated by bias because they had received, very shortly before the hearing, a lengthy document from Mr Berzins running to some 11 pages which set out a number of allegations which Mr Hart says were inaccurate and indeed irrelevant to the issue before the Industrial Tribunal, since they went to the employers' general conduct as employers and to their character. As to that, in our view it is quite impossible to suggest that simply because a Tribunal has before it a document containing prejudicial matter, therefore the Tribunal in reaching its decision has allowed itself to be prejudiced. I say that of course without in any way deciding whether this document was prejudicial - that is not a matter for us - the question is whether we should - even assuming in the employers' favour that it was prejudicial, conclude that the Tribunal was biassed. We see no reason for reaching any such conclusion - quite the contrary.

The only overt matters which Mr Hart advances as evidence of any such bias do not concern the two lay members of the Tribunal in any event. They simply concern what Mr Hart complains of in the conduct and attitude of the Chairman, and in particular Mr Hart says that in dealing with the Notice of Appearance by the Respondent, which in answer to question 2 - Do you intend to resist the application? - gave the answer "No", the Chairman was discourteous and dismissive when Mr Hart attempted to explain that that was not intended to be an admission of the merits of Mr Berzins' application but simply an indication that the employers were prepared to have it heard by the Tribunal. It cannot in our judgment be the case that simply because the Chairman was, or may have been - it is not for us to decide - somewhat sharp in his manner in dealing with that, therefore he was biassed against the employers. There is no doubt that on the face of it the answer "No" to that question would normally be understood as meaning that the employers did not resist the Application. The Tribunal accepted Mr Hart's application that that should be treated as not having that intention, and they did deal with the Application on the merits, and that aspect of the matter is no evidence of bias on the Chairman's part, still less on that of the Tribunal as a whole.

The other specific comment by the Chairman that Mr Hart referred to was a comment -which indeed is repeated in the formal reasons by the Tribunal - to the effect that ignorance of the law is not an answer to a complaint of breach of section 53. Again we are not in a position to and are not entitled to go into nuances of manner; the fact is that in the context in which it appears in the formal reasons of the Tribunal that was a perfectly valid comment, and again the fact that the Chairman may have reminded Mr Hart of that no doubt for the purpose of trying to concentrate Mr Hart's mind on the submissions that might advance his case rather than those which could not assist him, is no evidence of bias on the part of the Industrial Tribunal. We conclude that that allegation against the Industrial Tribunal as having erred in law by bias is equally not made out.

That disposes of the three grounds that have been advanced by Mr Hart on behalf of the employers. We see no error of law in the decision of the Tribunal. It was for them to decide the prime issue of fact whether, in the circumstances, the admitted failure by the employers to respond at all to the letter of 15 August, amounted not just to failure but to unreasonable refusal; they decided that issue of fact against the employers; that was a matter for them and there is no ground on which we can interfere with it and we must therefore dismiss this appeal.

I should have said when dealing with the case of Gilham v Kent Council that in the course of Mr Hart's submissions I raised the question with him whether there was any law or any authority on this point to which he wished to refer us and it is of course no criticism on him as a lay person that he did not do so, but since this authority which I have referred to does exist and since it had not been canvassed in argument, I think it is only right now that I have referred to it to enquire of Mr Hart whether he wishes to have the opportunity of reading it and making any submissions about it, and I should have done that earlier.

Mr Hart: Thank you very much. I think one can at least learn one's own limitations thereby, so I shall be very grateful indeed to learn indeed the contents of this.

Judge Hicks:

You are welcome to do that anyway. What I am enquiring is whether you wish to have a short opportunity of deciding whether to make any further submissions about it as a matter of law.

Mr Hart: No sir. I take well and truly that I have lost and I think you have given me a very very fair and congenial hearing for which I am most grateful and I feel I would only waste your time by taking the matter further.