Partington (t/a Paws & Purrs) v Ross [1996] UKEAT 1317_95_1803

EAT
Partington (t/a Paws & Purrs) v Ross
[1996] UKEAT 1317_95_1803 · 1996-03-18
MR JUSTICE MUMMERY (PRESIDENT) : This is the preliminary hearing of an appeal by Mrs Sandra Partington, trading as Paws and Purrs, against the decision of the Industrial Tribunal held at Nottingham on 21st November 1995.Mrs Partington was the respondent to a claim for unfair dismissal brought by Mrs Muriel Ross who worked in Mrs Partington's shop between 1990 and May 1995. She made an application to the Industrial Tribunal on 22nd July 1995 complaining that she had been unfairly dismissed on 27th May 1995. She gave details in her application of the circumstances which she said constituted unfair dismissal.Mrs Partington resisted the claim. She sent in a Notice of Appearance on 2nd September 1995. She also set out in written representations her defence to the allegations that the dismissal was unfair.The Tribunal made their decision on the basis of what they had heard in evidence from Mrs Ross, who appeared in person at the hearing, and on the basis of the written representations sent by Mrs Partington. They decided that Mrs Ross was unfairly dismissed, and awarded compensation to her of £2,840.10.The full reasons for the decision were sent to the parties on 23rd November 1995. The decision was appealed by Mrs Partington who served a Notice of Appeal on 11th December 1995. She set out in her Notice of Appeal the aspects of the findings of the tribunal disputed by her.The case was set down for a preliminary hearing to determine whether the Notice of Appeal contains any grounds of law that are reasonably arguable at the full hearing. If there are no such grounds, the Tribunal would have no jurisdiction to hear the case and the appeal would be dismissed today.On 1st March 1996, Mrs Partington sent in a written argument summarising the points she wished to make on the hearing. Mrs Partington has unfortunately been unable to attend today on account of illness. Her husband has attended to represent her. He has made the points which she would have made if she had been here.The main points are that there serious factual errors in the decision of the Tribunal. The decision of the Tribunal was briefly this. Mrs Ross was employed as a shop assistant in the pet shop run by Mrs Partington. She was dismissed on 27th May 1995. She was dismissed without any real discussion. The Tribunal said:
"Had there been a discussion it would have revealed that the applicant was ill and was going home. The applicant was not given an opportunity to explain to the respondent why she was going home.
4. There was no doubt that the applicant was dismissed for conduct, which is one of the reasons specified by Section 57 of the Employment Protection (Consolidation) Act 1978. We are not satisfied, however, that the respondent acted reasonably, having regard to equity and the substantial merits of the case, in treating that conduct as the reason for dismissal."The Tribunal made a point of saying that they had read the written representations submitted by Mrs Partington. They put the various allegations in those representations to Mrs Ross. She largely denied them. The Tribunal said that Mrs Partington had painted Mrs Ross as an appalling employee over a considerable period of time and observed that, if that were true, no employer would have tolerated that behaviour and would have brought the employment to an end considerably earlier. The Tribunal said:
"We believe that the respondent has exaggerated the allegations she makes against the applicant. We believe that there is no evidence whatsoever to justify a reduction of the compensation we award to the applicant on the grounds of contributory fault."
The Tribunal then explained how they calculated the amount of compensation.Mr Partington referred to his wife's skeleton argument, in which it was submitted that there were a number of serious factual errors in the decision. For example, the Tribunal said in the extended reasons:
"Had there been discussion it would have been revealed that the applicant was ill and was going home. The applicant was not given an opportunity to explain to the respondent why she was going home."
Mrs Partington's case is that this is not factually correct. At no time prior to getting into the taxi, which she summoned on the shop phone unknown to Mrs Partington, did Mrs Ross approach Mrs Partington, who was working in the room at the rear of the shop and was readily available, and inform her that she was ill and wished to go home. Nothing prevented her from doing that. Mrs Partington had no inclination that Mrs Ross was ill and was going home.Another statement alleged to be factually incorrect is the statement that:
"The respondent paints the applicant as an appalling employee over a considerable period. If that were true no employer would have tolerated that behaviour and would have brought the employment to an end considerably earlier."
The true position, according to Mrs Partington, was that the business had only been purchased five months earlier by her. She was anxious to develop a good working relationship with the staff that she inherited and wished at all costs to avoid bad feeling which would in all probability have arisen if one of them was dismissed soon after the taking over of the business. She explored avenues open to her, frequently appealing to Mrs Ross in private to take more care in her work and point out where improvements were needed. She hoped that, by keeping her complaints low key, the other staff who were performing well would not become unsettled. But, despite these actions by Mrs Partington, it was alleged that Mrs Ross continued to work in a slipshod and unsatisfactory fashion. In due course verbal warnings were given. So on that ground it is said that the decision contains a factual error.In summary, Mrs Partington's complaint about the decision is that it is highly unsatisfactory for an employee like Mrs Ross to be able to walk away from her job and go home without approaching or informing her employer who was on the premises and readily at hand; and then to say that she had gone home because she was ill. Mrs Partington's view is that far from her acting unreasonably in treating this conduct as a reason for dismissal, Mrs Ross had behaved unreasonably and had committed actions damaging to the business and its reputation.We have considered all these points set out in detail in the Notice of Appeal and the particular complaints that Mrs Partington had against Mrs Ross as set out in the original written representations.We have come to the conclusion that we are not able to interfere with this decision. The Industrial Tribunal is the body that hears the evidence, oral and documentary, and decides the facts. We only have jurisdiction to interfere with that decision if, when the Tribunal comes to apply the law to the facts, it makes an legal error in the interpretation and application of the law.In this case, the Tribunal found the facts. There is nothing that we can do to find different facts. It is unfortunate in retrospect that Mrs Partington did not attend to give evidence to the Tribunal. She chose to act by written representation. We understand that the reason for that is that she was busy and hard pressed at that time, because Mr Partington was away looking after a sick, elderly mother. That is a feature of the case that attracts sympathy, but it cannot affect the legal rights and wrongs of the matter.As far as the Industrial Tribunal and Mrs Ross were concerned, when the hearing took place on 21st November 1995 the Tribunal were entitled to make their findings of fact on the basis of the oral evidence given by Mrs Ross and on the written representations submitted by Mrs Partington. The Tribunal cannot be criticised for reaching conclusions of fact which differ from the facts put forward to the Tribunal by Mrs Partington.There is no legal error in the conclusions. The Tribunal correctly referred to Section 57 of the 1978 Act and said that there was a conduct reason for dismissal. They correctly referred to Section 57(3) of the Act, and found that, in their view, Mrs Partington had not acted reasonably in treating that conduct as a reason for dismissal.Mrs Partington and her husband may no doubt feel aggrieved by the decision. But there is nothing legally incorrect about it. We therefore have no jurisdiction to consider this appeal at a full hearing. It will be dismissed.