Brides In Style Ltd v Cotterell [1994] UKEAT 803_92_1006

EAT

Brides In Style Ltd v Cotterell

[1994] UKEAT 803_92_1006 · 1994-06-10

JUDGE HULL QC:

This is a case in which Mrs Cotterell complained to the Industrial Tribunal, sitting at Brighton under the Chairmanship of Mr Wilson, with two Industrial Members, on the 20 July 1992. If one looks at the complaints which were first made by Mrs Cotterell, she said that there had been a failure to provide a written statement of the main terms and conditions of her employment; that apparently was so; also failure to make guaranteed payments and a failure to give notice of dismissal or pay in lieu. The "failure to make guaranteed payments", the Tribunal found, was a misunderstanding of the true position. They gave Mrs Cotterell leave to pursue a claim under the Wages Act on the basis that she had not been paid all the wages which were due to her.

She had been employed in a shop which is owned, and run, by Brides in Style Ltd. The moving party there is Mrs Tolley, who has appeared before us today as representing the employer, which effectively she is in person. The employment of Mrs Cotterell began on the 4 November 1989 for two days a week and then in 1990 she went on to four days a week and then on the 3 September 1990 she started to work five days as week, and she was paid £105 a week.

According to Mrs Tolley what happened was that on the 14 March 1991 she gave one week's notice to Mrs Cotterell. I do not need to go into the reasons, but Mrs Tolley said that she was not satisfied with the way Mrs Cotterell was working for her and she therefore gave a week's notice; that notice was worked out. She paid her for the week which she worked out under the notice. Thereafter Mrs Cotterell came in for one or two days, and she was paid for those.

That was Mrs Tolley's side of things. She said the full time employment had ended at the latest by the 20 or 21 March. After that it was just a case of one or two odd days. The Tribunal, of course, had to decide what evidence they accepted and they made a finding as follows. They say that Mrs Cotterell had been employed on the ordinary weekly basis, a full time basis, and they say she actually last worked on the 2 April. Then they say as follows:

"Mrs Tolley believed that she had given the Applicant notice on 14 March 1991 when she reduced the Applicant's days to 3 days per week and she believed that the 3 days that week and the 2 days the following week were the 5 days notice that she was obliged to give which she therefore expected the Applicant to work out."

Then they make a very important finding of fact:

"The Applicant's employment was not terminated on 14 March 1991 but on 8 April 1991 and in our view the Applicant should have been paid up to the end of the previous week, namely to 6 April 1991."

On the basis of that they made an award of wages under the Wages Act. They got it wrong at first, in making an arithmetical error, but they very properly put that right when Mrs Tolley asked them to review their decision. They finally made an award on the 20 October, after reviewing the matter, of £212, representing two weeks' wages. They found that the employment had gone on for two weeks longer than Mrs Tolley had said it did.

It is necessary for me to point out, to explain our decision, that we are not concerned with questions of fact. Parliament has said that all these questions of fact are the sole responsibility of Industrial Tribunals. An appeal lies to us from an Industrial Tribunal only on a question of law. It appears to us that the decision of this Tribunal was purely a question of fact for them. It is not up to us to say whether, if we had heard the evidence, we would have reached the same conclusion. As we did not hear the evidence, as we did not see the witnesses, of course it would be quite idle for us to do so. It is also quite out of point for us to speculate on whether another Tribunal would have reached the same conclusion. As one knows, with any tribunal of fact, whether it is juries, Justices of the Peace or indeed Judges, sitting at first instance, it is quite possible for two different tribunals to reach quite different views. All that is beside the point. We are only concerned if there is an error law.

Now here Mrs Tolley says "the Tribunal failed to consider", because of course they were not put in front of them, "wage receipts" and she asks us to look at those and we have done; also at the wages deductions working sheet, as it is called, which is prepared for Revenue purposes, and is also no doubt very useful from the point of view of the employer. This was prepared by Mrs Tolley and is indeed entirely consistent with what she says. The pay of £105 a week, with the appropriate deductions, went up to the middle of March, and not thereafter.

Mrs Tolley says, very fairly, "well that is consistent with my contentions". It could have been laid before the Tribunal and it is very important to say that on an appeal, this Employment Appeal Tribunal will only look at new evidence if it was genuinely unavailable. It is impossible to say that if these sheets were kept up to date, they were not available for the original hearing. They were not brought to the original hearing.

It cannot be stressed too strongly that fairness demands that every possible useful piece of evidence should be laid before the Tribunal which is hearing a case, when it is hearing it. If a party is allowed to produce new evidence later and say "well I could have produced this of course, but I did not realise how important it was until after the decision had been given", there would be no end to appeals and there is no doubt that unnecessary appeals are a great threat to justice.

Even having looked at them, it appears to us that these sheets merely confirm what Mrs Tolley has told us in perfectly good faith, that she took the view that she had given notice

on the 14 March. The Tribunal does not, of course, suggest that she is making that up, or telling untruths. What they do say is that they do not think that a good and effective notice in law, a clear notice, was given on the 14 March. They heard, of course, Mrs Cotterell, and we have not heard her or her representative today, and that is what they said as a decision of fact.

It seems quite impossible to say that this Tribunal made any error of law. We are not concerned with whether they have made an error of fact. They have the sole responsibility for that, as I have said, Parliament has entrusted them with that sole responsibility.

In the circumstances, since there is no error of law disclosed to us by the appeal we are not able to interfere in any way and all we can do is to say that the appeal must be dismissed.