42nd Street Bars Ltd v Robley [1993] UKEAT 57_93_2210

EAT

42nd Street Bars Ltd v Robley

[1993] UKEAT 57_93_2210 · 1993-10-22

JUDGE BULL QC :

This is a Preliminary Ex Parte Hearing of an appeal by 42nd Street Bars Ltd from the decision of the Industrial Tribunal sitting at Newcastle Upon Tyne on 15 September and 13 November 1992. Full Reasons were sent to the parties on 1 December 1992.

The Industrial Tribunal unanimously found that the Respondent Ms Helen Robley had been dismissed by the Appellants for having taken part in trade union activities as defined by Section 58(1)(b) of the Employment Protection (Consolidation) Act 1978 and therefore found that the dismissal was automatically unfair.

So far as it is necessary for us to recite them, the facts are these. The Respondent was employed as a full-time bar worker from July 1991 to 16 April 1992 at one of 6 public houses operated by the Appellants employing in all some 200 or so people. In addition the Respondent was a member of the Transport & General Workers Union and shop steward of her branch which consisted of a small number of people, largely part-time workers.

The Industrial Tribunal found that at the request of her members Ms Robley pursued the question of underpayment of staff and in the course of this was advised to make an individual complaint on her own behalf to the Wages Inspectorate and this she did. On 16 April there was a visit to the Appellants' premises by someone from the Wages Inspectorate. Shortly after that person left Mr Vaulkhard arrived and saw that the Respondent, Ms Robley, was on duty. He then saw her kiss her boyfriend across the bar. The Industrial Tribunal found that Mr Vaulkhard was visibly angry at such conduct, and that although he told the boyfriend not to come back whilst Ms Robley was working at the premises, nothing was said to her at the time by Mr Vaulkhard. Shortly thereafter Mr Vaulkhard rang a subordinate and told him to dismiss Ms Robley.

The Industrial Tribunal found at paragraph 4(f) that Mr Vaulkhard said that if she asked the reason his subordinate was simply to say "snogging".

Mr Hodgson who appeared below assures us, and we accept of course from him, that he cited the well known authority of Smith v The Chairman and Other Councillors of Hayle Town Council

[1978] IRLR 413

to the Tribunal. It is quite plain to us that the Industrial Tribunal properly directed themselves upon this point for in the concluding sentence at paragraph 1 of their Full Reasons they say categorically:

"The burden of proof was upon the applicant."

Mr Hodgson with the realism he has displayed throughout this hearing tells us that there was no error of law to which he can point in the approach of the Industrial Tribunal and he confines his attack on the decision to two grounds, both of which he has pursued with vigour.

First he asserts that the evidence does not support the finding of the Tribunal and he goes further to submit that their finding is contrary to the evidence. Secondly he submits that the decision was perverse and in that context has referred us to the decision of the East Berkshire Health Authority v Matadeen

[1992] IRLR 336

, a decision of this Tribunal presided over by the then President Mr Justice Wood.

Mr Hodgson took us through the conclusions of the Industrial Tribunal and subjected them to detailed criticism which is set out in outline in paragraph 6 subparagraphs (a) to (f) of his carefully drafted Notice of Appeal. In summary he submitted that in a number of cases the conclusions of the Tribunal either did not follow from the evidence or in the alternative, they represented an unjustified leap from that evidence to a conclusion which could not properly be based upon that evidence.

We draw attention to the fact that it must be remembered that the Industrial Tribunal both saw the witnesses and heard the evidence, an advantage which is denied to us and indeed it is not for us to substitute our view of the facts or of the deductions properly to be made from those facts for the view taken by the Industrial Tribunal. We, however, have carefully scrutinised the arguments made on behalf of 42nd Street Bars by Mr Hodgson.

Our conclusion is that if one looks at paragraph 9 of the reasons of the Industrial Tribunal there are set out the views of that Tribunal in this form. They say:

"Mr Hodgson made the submission, correctly, that the Tribunal could only find the applicant had been dismissed for taking part in trade union activities if Mr Vaulkhard knew she was engaged in such activities. Both Mr Brady and Mr Vaulkhard said they had no knowledge of her union membership or alleged activities until after the dismissal. The Tribunal rejected this. There was much open talk about the union among the employees at Offshore 44. They met together frequently socially. The applicant's activities in relation to wages were, misguidedly if would seem, openly discussed in front of Mr Wallace, the under manager at Offshore 44. [I add supplementing those reasons we are told that in fact there was evidence that there had been some such discussion at other premises not on the premises of Offshore 44]. It was inconceivable that with of this open talk Mr Brady did not know the position and that this information was not passed on to Mr Vaulkhard."

We find that that view is strengthened by the finding by the Tribunal, a finding of fact, demonstrated at paragraph 4(c) where in the middle of that paragraph they found in relation to other matters concerning a Mr Hurring and his union activities, that:

"Mr Vaulkhard was well aware of Mr Hurring's union activities and on one occasion when Mr Hurring refused to name his members Mr Vaulkhard said..."

and they quote his remark.

We further have looked at the findings made by the Tribunal in paragraph 12 where they consider the view put forward by Mr Vaulkhard in relation to the conduct of Ms Robley. Having considered in fact his views they rejected the allegations which he made. It is at the conclusion of paragraph 12 where they go on to say:

"Having rejected those allegations the Tribunal rejected Mr Vaulkhard's allegations as to her previous conduct. The Tribunal was satisfied that the anger shown by Mr Vaulkhard was primarily because of Mrs Cavannagh's visit and the applicant's part in it."

They add at the beginning of paragraph 13:

"Cases of this kind depend upon the drawing of inferences and the observation of witnesses. The Tribunal was able to draw inferences from Mr Vaulkhard's evidence which were adverse to his case."

We do specifically recognise that as to paragraph 14 Mr Hodgson makes the point that the Tribunal in considering previous conduct by Mr Vaulkhard towards Mr Hurring were adverting to a matter of which they were not seized of at that moment when they expressed the view that:

"...in the light of that admitted conduct, had great difficulty in treating Mr Vaulkhard's evidence as in any way truthful and was forced to draw the conclusion that Mr Vaulkhard lacks integrity in these matters".

This assessment of the witness was in our view one which the Tribunal was entitlted to draw upon the evidence before it.

However, we have looked carefully to see whether the evidence in this case justifies the inferences that were found. We are unanimous in finding that there were findings of fact from which this Industrial Tribunal could draw the inferences which they did. We are driven to the conclusion that there is no point of law in this matter other than those so ably urged by Mr Hodgson on behalf of the Appellants here but having for the reasons I have indicated, come to the view that those arguments are not sustainable, we are obliged not to allow this matter to go further than the Preliminary Hearing, and we so rule. This appeal must be dismissed.