Bridges v Rovard Facilities Ltd [1993] UKEAT 202_92_1101

EAT

Bridges v Rovard Facilities Ltd

[1993] UKEAT 202_92_1101 · 1993-01-11

MR JUSTICE TUDOR EVANS : This is an appeal by Miss K Bridges who was employed as a branch manager by the Respondents and who complained to an Industrial Tribunal sitting at Manchester that she had been unfairly dismissed and that the Respondent had failed to give Written Reasons for her dismissal.

The Originating Application was signed on 7 August 1991 and was received at the Central Office next day. The Tribunal had to decide the preliminary question whether the Applicant's complaint had been presented before the end of 3 months from the effective date of termination as required by section 67(2) of the Employment Protection (Consolidation) Act 1978.

There was a further question as to whether the Tribunal should extend the period of 3 months in the circumstances, but that is a matter which has not been argued before us today and which we are therefore not concerned.

The Tribunal held, having heard evidence from the Appellant and also from Mrs Wall of the Respondents, that the effective date was 9 April 1991 and on that finding the Tribunal ruled that the application had not been presented within the relevant period. The Tribunal found that on 9 April 1991 the Appellant had been handed a letter dated 10 April by Mrs Wall who was employed by the Respondent as a regional manager. The terms of the letter are set out in paragraph 4 of the Full Reasons of the decision of the Tribunal and are in these terms:

"All in all, your general performance as a Branch Manager has not been commensurate with the expectations of the Company or in line with your Job Description. We have, therefore, made the decision to terminate employment with the Company, giving you one month's notice. You will not be expected to work your period of notice.

Please be assured that this decision has not been taken lightly, but purely in view of your general performance in running the Blackpool Branch at a considerable loss to the Company."

The Appellant contended before the Tribunal, as Mr Burgess today contends on her behalf, that the effective date of termination was the date when the notice in the letter expired, that is, 10 May 1991. Of course, if that was the date of the expiry of the Notice of Dismissal then clearly the Original Application would be in time. Mr Burgess accepted that in this particular case the decision of the Tribunal was not confined to the terms of the notice but that the Tribunal was entitled to take into account all the circumstances of the case which included the evidence of the Appellant and Mrs Wall.

It is convenient now to refer to that evidence which is summarised in paragraph 5 of the Decision. The Tribunal reviewing the evidence said:

"The applicant read the letter, she was told to leave straight away and told `No' in response to her enquiry whether she should work her notice. We find that she was not given a choice, although Mrs Wall under cross-examination stated that the applicant did not ask to be allowed to work her notice so the question did not arise. The applicant understood on her evidence to us that she no longer had a job from 10 April."

Then the Tribunal summarised some evidence relating to exhibit 19 which was the Appellant's pay slip. That is another matter which is raised by Mr Burgess in his submissions to us and which we shall consider in due course.

Counsel laid strong emphasis on some aspects of Mrs Wall's evidence. At page 24 of the summary of the evidence is an answer which is given to a question directed to Mrs Wall by the Industrial Tribunal. The question is this:

"Did you give her a choice about working or pay in lieu of notice? [Answer] Applicant was upset I said under the circumstances I would not expect her to work her notice out. No she did not ask"

That is to say, she did not ask to work the notice out.

Counsel has submitted that the effect of that answer was to show that, whatever may have been said by Mrs Wall to the Appellant when the notice was handed to her, in fact the sole reason for her not working her notice out was that the Applicant was upset that Mrs Wall reached the conclusion which she did, out of sympathy for the Appellant's state of mind. However, there is evidence from the Appellant that, when she was handed the notice, she understood that she no longer had a job from 10 April. Mrs Wall gave evidence to the same effect, that she believed that the Appellant knew that she no longer had a job. In answer to the Chairman of the Tribunal Mrs Wall said "Yes, I was ending the employment on that day".

There is therefore clear evidence to support the summary which is contained in paragraph 5 of the Decision, that is to say, that the Appellant was handed the letter and told that her employment was at an end and she was told to leave straight away.

Mr Burgess has submitted that the decision of the Tribunal, as I have summarised it, was perverse in all the circumstances bearing in mind the evidential matters to which he has referred in his submission and which we summarised. That is a submission which we are unable to accept. The position in this case is that the Tribunal below had to look at all the evidence to decide the question which it had to decide. It heard that evidence. There was before it clear evidence that the Appellant was told that her employment was terminated immediately. It was for the Tribunal to assess the evidence and balance up the various matters for and against the proposition which was involved in the case.

It is not for us to consider whether we would have come to a different conclusion. It is only in the event of a Tribunal on an issue of fact coming to a conclusion which a Tribunal, properly directing itself could not reasonably have come, that we are entitled to intervene or upset conclusions of fact.

For those reasons, on the first point which is advanced by Mr Burgess, the appeal must fail. But there is a second point which is based on a payment which was made to the Appellant in May 1991. Counsel has provided us with a copy of the monthly payroll which seems to show that for the month of April payments were made to the Appellant with an addition for holiday pay and deductions for tax and national insurance. There is another additional payment in lieu of notice for a larger sum but there were no deductions in respect of tax or national insurance from that second figure.

Counsel submitted to us that the payment of wages in May was inconsistent with the Respondents' contention that the employment had been immediately terminated. The Tribunal dealt with that argument by concluding that the documentary evidence, that is to say the pay slip, showed that the payment was by way of compensation for the required amount of notice not having been given and it seems to us that that conclusion was fully supported by the pay slip because no deductions were made from the gross figure. It was fully open to the Tribunal to conclude that that was by way of compensation.

For the reasons we have given, we have come to the conclusion that the Tribunal did not fall into any error of law or of fact and it must follow therefore that this appeal should be dismissed.