Gwatidzo v Beatson Clark Plc [1995] UKEAT 673_95_2411

EAT

Gwatidzo v Beatson Clark Plc

[1995] UKEAT 673_95_2411 · 1995-11-24

MR JUSTICE KEENE : This is a preliminary hearing of this appeal under the practice direction relating to appeals for this appellate tribunal. It arises from a decision of an Industrial Tribunal which rejected the claim by the present Appellant for unfair dismissal along with a claim under the Wages Act 1986 . That decision was reached unanimously by the Industrial Tribunal.

The essential facts of the case are summarised by the Tribunal in its decision at paragraph 13. They said as follows:

"13. We find the following facts. The applicant came to this country initially on a fixed term contract promising to return to Zimbabwe after he had received sufficient training and experience here. This fixed period extended beyond what the applicant could reasonably have anticipated at the outset and every assistance and facility was rendered and offered to him by the respondent. From about April 1993 the applicant and respondent were moving towards a consensual partings of the ways at the end of the year. Later, the applicant, anxious to remain within the United Kingdom so as to continue his studies and in order to better assist his wife to remain to complete her own studies, tried to prolong his stay. The respondent was prepared to assist the applicant as far as possible. In November 1993, on advice, the applicant abandoned the legal appeal process upon which he with the respondent's support and financial assistance had embarked. The respondent at that stage took the view that it would be breaking the law if it were to continue employing the applicant without a work permit. The applicant left the respondent towards the end of December 1993 with the good wishes of management and staff. We was presented with gifts which included a cheque for £1,500 and received a very satisfactory reference."

The Tribunal took the view in the course of its decision that in all probability the applicant was not even dismissed and that there was in this case consensual parting of the ways. They then went on to indicate that even if they were wrong, and there was indeed a dismissal in this case, there was no doubt that the dismissal was brought about by the fact that the Respondent thought it would be wrong, that is to say illegal, to continue to employ the applicant beyond December 1993. They then said this:

"Following the abandonment of his appeal his stay under the original work permit was no longer valid and a month had expired following the abandonment of the appeal. We find that if there was a dismissal then the reason, most certainly, was a reason within section 57(2)(d) of the Employment Protection (Consolidation) Act 1978."

They then went on to consider the fairness or unfairness of the dismissal within the terms of Section 57(3) of the Act and concluded that the decision by the employer fell well within the band of reasonable responses open to any employer, and that the decision was reached and made in a manner which was in all respects reasonable.

Before us today, Mr Gwatidzo has raised three points as to why that decision is open to challenge. We bear in mind that at a preliminary hearing such as this, he only needs to show that he has an arguable point and should therefore be allowed to proceed to a full hearing of his appeal.

The first point which is raised by the appellant is that the Tribunal failed to consider whether his dismissal was procedurally unfair. He contends that the procedural unfairness was constituted by a failure on the part of the employer to consult with him and to tell him what they were going to do. We are bound to say that there is no reference in terms to procedural unfairness in the application to the Industrial Tribunal although we acknowledge that when a person is acting in person the phrase procedural unfairness might well not appear. Equally we have to observe that nothing in the documents indicates that there has been any application on the part of the Appellant to the Tribunal seeking a review of its decision. Be that as it may, we find that in the Tribunal's decision at the end of paragraph 16 the Tribunal did indeed decide that the decision was reached and made in a manner which was in all respects reasonable. That is put briefly, but it does seem to us to cover the aspect of procedural unfairness as well as substantive unfairness, in that it refers to the manner in which the decision was reached and made. In the circumstances of this case, and bearing in mind the facts which are set out earlier in the decision, the brevity of that reference does not seem to us to be unreasonable. Nothing in the Tribunal's decision indicates that procedural unfairness and the failure to consult, was argued at any length before the Tribunal. And as we have noted, there has been no application to the Tribunal seeking any review. We can see therefore nothing within this first ground which presents any arguable point justifying allowing this appeal to proceed further.

The second ground presented to us by the Appellant is that the Tribunal proceeded with what was no more than a presumption that there had been a consensual parting of the ways. It is right that the Tribunal did in its decision take the view, as we have already indicated, that in all probability there was a consensual parting of the ways. It does not seem to us to be correct to characterise that as a presumption. It appears to us to have been a conclusion arrived at by the Tribunal after hearing evidence to which they refer in the body of their decision. In any event, the Tribunal then went on to consider the position if there had been not a consensual parting of the ways, but a dismissal, and the remainder of their decision is directed towards that end. They concluded, as the passages we have referred to indicate, that if there had been a dismissal the reason for it fell within Section 57(2) of the 1978 Act and that the dismissal was a fair one.

In those circumstances we cannot see that there is any justification for asserting that the decision is flawed on the grounds of any presumption that there was a consensual parting of the ways, but even if that had formed the basis of the Tribunal's decision, which we do not think that it did, the Tribunal nonetheless considered the position if there had been a dismissal rather than an agreement to part.

Finally, the Appellant raises a point which concerns the correct interpretation of Section 57(2)(d) of the 1978 Act.

He relies upon the decision in Bouchaala v Trust House Forte Ltd

[1980] ICR 721

. That decision does indeed make it clear that where the reason put forward for dismissal is said to fall within Section 57(2)(d), the existence merely of a genuine belief on the part of an employer that the employee could not continue to work in the position which he held, without contravention of a duty or a restriction imposed by or under an enactment, is not enough. It has actually to be a fact that the employee could not continue to work in that position without illegality. That is what is required in order to constitute a reason falling within Section 57(2)(d) and that is the result of this Tribunal's decision in the case of Bouchaala .

Applying that approach to the present decision, it is right that in the course of paragraph 15 of its decision, the Tribunal does refer to a belief on the part of the employer that it would be illegal to continue to employ the applicant beyond 1993. However, that does not stand alone. The Tribunal then went on, in terms which to our mind can only indicate a finding of fact on the part of the Tribunal, that following the abandonment of the Appellant's appeal to the Home Office, his stay under the original work permit was no longer valid. It seems to us that as things stood in November and December 1993 it would in fact be illegal for this Appellant to continue in the company's employment beyond December 1993 unless the facts changed. Therefore the Tribunal was not relying merely upon a belief on the part of the Respondent that his continued employment would be illegal, they were relying also upon the fact that it would indeed be illegal. On that basis the Tribunal's decision that the reason fell within Section 57(2)(d) of the 1978 Act was correct. It is not surprising that they refer to the belief of the company to that effect, because inevitably when an employer in such circumstances dismisses an employee it involves some mental act on the part of the employer as to the illegality. The employer has to give consideration to the situation and that is what the Tribunal, in our view, was referring to when it made reference in paragraph 15 to what the Respondent company thought. We can see nothing in that which provides any basis for a proper challenge to the decision of the Industrial Tribunal in this case.

That being the last of the three grounds which have been put before us this afternoon as the basis for an appeal, it must follow that we find that there is no arguable point which is raised in this appeal, and our decision in consequence must be that this appeal has to be dismissed.