House Of Fraser v Quist-Brown [1995] UKEAT 1060_95_2711

EAT

House Of Fraser v Quist-Brown

[1995] UKEAT 1060_95_2711 · 1995-11-27

JUDGE BYRT QC :

To begin with, there is a preliminary point because the Respondent to this appeal did not file an answer timeously. By letter dated 11 October, the Registrar required an answer to be filed by 25 October. None was filed. A reminder was sent on 30 October calling upon them to file answer, if they intended to file one, within seven days. There was no response to that.

The matter then moved forward to 23 November when, as a result of prompting by the Appellant in this case, the Respondent's solicitors filed an answer without a skeleton argument attached.

This morning Mr Offeh of Counsel has come down to the Tribunal to offer explanations as best he could. He has done well and apologised for the Respondent and for the solicitors instructing him, but we notice that there is nobody sitting behind him to give him proper instructions as to why the Tribunal's directions and orders have not been complied with. We take a serious view about this matter. If a legal representative makes a mistake and overlooks a date or appointment or a crucial step, we expect that representative to be here to give the fullest instructions and be available to give evidence, if necessary, as to his/her personal explanations and apologies.

The only sanctions the Tribunal has to enforce its orders and to ensure the parties' respect for its jurisdiction is to disbar them from arguing the appeal, and this is the course we propose in this instance to follow, and we do so in the exercise of our discretion under Rule 26.

And so the Appellants have to argue their appeal without the Respondent's participation and this places an additional onus on this Tribunal to scrutinize their submissions. The appeal lies from the decision of the Stratford Industrial Tribunal made on 8 September 1995 on a preliminary issue. The issue, as stated by the Tribunal, was whether the employee, Mrs Quist-Brown, was dismissed or she resigned. The Tribunal found that she had been dismissed and it is against that decision that the employers appeal.

A brief outline of the story, leaving aside certain contentious factual issues, is as follows. In early 1994, Mrs Quist-Brown requested four weeks' leave of absence from her employers in order to return to Ghana where one of her grandparents had died. The employers refused that request. In consequence, on 16 December Mrs Quist-Brown did not report for work and, indeed, she went back to Ghana to attend to her personal affairs without the leave of her employers.

Thereafter, the employers heard nothing from Mrs Quist-Brown until the end of January or early February when she rang the Personnel Manager of the employers, a Miss Henry. The Tribunal's reasons record Miss Henry's evidence that Mrs Quist-Brown enquired about what positions were available. Mrs Quist-Brown says that Miss Henry merely told her that there was no work for her. Within a week or so, Mrs Quist-Brown received her P.45 from her employers.

The Tribunal's options were various. They could have found that there was an outright dismissal of Mrs Quist-Brown for disobedience and disregard of her employers' enjoinder that she could not take the four weeks' leave. They could have found that she resigned and that this resignation was later accepted by the employers as a repudiation of the contract or they could have found that the employment came to an end by mutual agreement, as evidenced by what was said by and the conduct of the parties. The difficulties in this case for both parties and, indeed, for the EAT, is that there is a shortage of findings of fact by the Industrial Tribunal to justify any of these conclusions.

There are two crucial periods of timein the narrative. The first starts at the beginning of December, and culminates on 16 December. During that period, there was an exchange of letters by Mrs Quist-Brown to her employers on 4 December and by the employers to Mrs Quist-Brown on 8 December, in which the question of her taking four weeks' leave to go back to Ghana, was discussed. Mrs Quist-Brown made plain that she was not amenable to the suggestion that she might resign. The employers stated that the four weeks' leave of absence was refused but that if she did go notwithstanding, then on her return she could ring up to see whether there was any work available for her. This proposal strikes us as being somewhat of a veiled indication that if she went, her employment would be terminated.

Apart from those two letters, there were also discussions by telephone prior to Mrs Quist-Brown's leaving on 16 December but there is no indication in any part of the reasons of the Industrial Tribunal as to what the evidence was about those discussions or what conclusions the Tribunal came to about them.

The second period is late January/early February when Mrs Quist-Brown came back to this country and contacted her employers. There is no account and no findings of fact about what was said between Mrs Quist-Brown and Miss Henry, at that point. Though, in their reasons, the Tribunal reflect in very short form the disparity in the accounts of what was said between Mrs Quist-Brown and Miss Henry, they make no findings of fact about what was said or whose evidence they preferred. Overall, there was no story told, based upon their findings of fact relating to either period.

The criticism advanced by Mr Rose, who appeared on behalf of the employers, is perhaps encapsulated best in the decision of Meek v Birmingham District Council

[1987] IRLR 250

in which Bingham LJ, as he then was, said that:

"The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable [the EAT or, on further appeal, this Court, the Court of Appeal] to see whether any question of law arises. It is also highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted."

It is our view that the Industrial Tribunal have failed, in setting out their reasons, to state their primary findings of fact, sufficiently to justify their conclusions so as to enable the parties to decide whether there has been any error of law or, indeed, why they won or lost.

Further, Mr Rose submits that there was a serious irregularity in the tribunal's procedure. The employers had not conceded dismissal and, therefore, it was for the employee to open the case and give evidence first. However, Mrs Quist-Brown and her legal representation were not present at 1.45 pm, the listed time of the hearing. Notwithstanding this the Tribunal began promptly on time and called on the employers to begin by presenting their case. I should say in parenthesis that they did so, despite Mr Rose's submission that they should not take that course. In the result, Miss Henry, the Personnel Manager, gave evidence first and had completed her evidence on behalf of the employers by the time Mrs Quist-Brown and her legal representation came into the Tribunal at 2.15 pm. In consequence, Miss Henry was never cross-examined. She never had her evidence tested nor did she have an opportunity of answering in cross-examination the employee's case which, in the ordinary course of events, would have had to have been put to her.

When Mr Rose cross-examined Mrs Quist-Brown, he was at a disadvantage in not knowing what Miss Henry's evidence would have been on the issues which were in dispute between her evidence and that of Mrs Quist-Brown. Accordingly, his cross-examination had to be based upon instructions rather than upon the evidence given by Miss Henry.

And yet, at the end of the day, the Tribunal by their decision found in favour of the evidence of Mrs Quist-Brown on a number of issues in preference to the evidence of Miss Henry and understandably this gave the Respondents a keen sene of a grievance. There was an obvious issue of credibility between Miss Henry and Mrs Quist-Brown which could not sensibly or properly be resolved without the cross-examination either of Miss Henry or Mrs Quist-Brown on the strength of the evidence given by Miss Henry. This, in our view, amounts to a serious procedural irregularity.

The Respondents' third ground of appeal is that the Tribunal's findings were perverse. In view of our comments about the first two points raised by Mr Rose, we do not think we need to consider this ground in detail. It is especially difficult to do so by reason of the fact that there were so few proper findings of fact. We do not think that there is enough factual information contained in the reasons to enable us to come to a proper decision as to whether their eventual decision was perverse or otherwise.

We end our decision by recording that we have had to consider this appeal without the benefit of any argument being deployed on behalf of Mrs Quist-Brown. That has been the consequence of our disbarment of Mrs Quist-Brown from arguing this appeal.

In the result, we have no alternative but to allow the appeal and to remit the case to a Tribunal for a rehearing. We have considered whether it should be to the same or a newly constituted Tribunal, and are of the view that the justice of the case requires that this matter go back before a newly constituted Tribunal.