Smith v Johnson [1994] UKEAT 64_93_1411

EAT
Smith v Johnson
[1994] UKEAT 64_93_1411 · 1994-11-14

JUDGE BULL QC :

This is an ex-tempore judgment in an appeal brought by the employer Mrs H L Smith from a decision of a Tribunal sitting at London (South) on 27 and 29 August 1992, when by a majority, it found that the Applicant, Mrs S F Johnson, had been unfairly dismissed. Full Reasons were sent to the parties on 15 December 1992.Mrs Smith ran a small hairdressing business under the name of Vanity Fair which she had acquired on 2 December 1985. At that time one of the employees was a young lady, Mrs Johnson, who had started her employment there on 1 July 1985, who was married about six years later on 2 April 1991. Subsequently, when Mrs Johnson became pregnant, she agreed with her employer that she would take maternity leave which would start on 26 October 1991. Throughout the winter of 1991/1992 the Industrial Tribunal found that this business like so many others was undoubtedly severely affected by the economic recession. On 21 February 1992 Mrs Johnson, after her baby had been born, made enquiry about when she might return to work and was told that trade was slack and that her employer was unable to take her back. The Industrial Tribunal found as a fact that the Applicant's contract of employment continued until 28 February 1992 and that there was a "genuine redundancy situation". They found further that Mrs Johnson was dismissed within the meaning of section 55 of the Employment Protection (Consolidation) Act 1978 and not for reasons either wholly or partly connected with her pregnancy.The first point taken by Mr Weisbard on behalf of the employers is that the Industrial Tribunal were wrong when, through their Chairman on 27 August 1992, they acceded to an application made by letter dated 21 August 1992 to allow an amendment to the date of the termination in the Notice of Application namely by allowing an amendment from 26 October 1991 to 21 February 1992. He submits to us that save in a case where it is scandalous, frivolous or vexatious there is no power in an Industrial Tribunal to allow any amendment to an Originating Application where objection is taken, even it seems to substitute a Respondent, but certainly not in this case.The Originating Application in these proceedings specifically complains of redundancy and unfair dismissal. The decision of the Chairman in our judgment, is wholly consonant with the views expressed by Lord Donaldson of Lymington Master of the Rolls in British Newspaper Printing Corporation (North) Ltd v Kelly [1989] IRLR 222 repeating the "Injustice Hardship Test", as it is known, from the case of Cocking v Sandhurst Ltd [1974] ICR 650.The Rules 12(i) and 12(ii) of the Industrial Tribunals Rules of Procedure Regulations 1985 which then applied are drafted in the widest of terms. The Industrial Tribunal found in paragraph 11 of their reasons that this contract continued until 28 February 1992. It is common ground that it was presented on 18 March 1992. We do not find that there was any error of law in the decision of the Chairman, Mr V C Jordan, on 27 August 1992 who granted leave to amend.The second basis upon which the decision of the Industrial Tribunal is impugned is that it failed to follow the judgment of Lord McDonald in Kolfor Plant Ltd v Wright [1982] IRLR 311 as approved by the Court of Appeal in Lavery v Plessey Ltd [1983] ICR 534 in that the Tribunal erred in finding that this case fell within section 55 of the Employment Protection (Consolidation) Act 1978, a case which Mr Weisbard characterises as an ordinary dismissal. Having comsidered his submission with care we are driven to reject it having read the reasoning of this decision.The task of the Industrial Tribunal was, in our judgment, one which necessarily involved findings of fact to which it had to apply the relevant statutory provisions and the relevant case law. We remind ourselves that our jurisdiction is limited by section 136 to appeals upon questions of law and we remind ourselves of the general remarks of Lord Denning Master of the Rolls as long ago as 1979 in the case of Hollister v National Farmers' Union ICR 542 at page 553:
"In these cases Parliament has expressly left the determination of all questions of fact to the industrial tribunals themselves... It is not right that points of fact should be dressed up as points of law so as to encourage appeals. It is not right to go through the reasoning of these tribunals with a toothcomb to see if some error can be found here or there - to see if one can find some little cryptic sentence."
We do not find any error of law in the approach to the facts of this case by the Industrial Tribunal as shown in its reasons for the members of that Tribunal, plainly addressed their minds with care to the relevant considerations. Matters of fact were, of course, for them to determine.Thirdly it is contended that the Industrial Tribunal reached inferences of fact upon the evidence which are not justified.Fourthly it is said that the majority of the Industrial Tribunal in paragraph 13, failed to apply the test of the band of reasonable responses to their evaluation of the question of fairness in the dismissal. In that context Mr Weisbard is driven to contend that their decision is one to which no reasonable Industrial Tribunal could have reached and is perverse.We have reminded ourselves of the guidance given in the case of Piggott Brothers & Co Ltd v Jackson [1991] IRLR 309 at page 312 where the Master of the Rolls, Lord Donaldson of Lymington, gave guidance to this approach from that Appellate Court. He said:"It does not matter whether, with whatever degree of certainty, the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal was a permissible option. To answer that question in the negative in the context of employment law, the EAT will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the Industrial Tribunal. If it cannot to this, it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option and has to be characterised as "perverse".Whatever might have been the decision of this Appellate Tribunal had we been sitting at first instance we have to consider this matter upon the evidence before the Industrial Tribunal. The decision of the majority of that Tribunal is in our judgment a permissible option and there is no ground upon which it would be right to interfere.We are driven to the conclusion that there is here no error of law in any of the ways suggested by Mr Weisbard. It follows that this appeal must therefore be dismissed, and we so dismiss it.