Bibbey v Bernards Of Esher Ltd [1996] UKEAT 557_95_2005

EAT
Bibbey v Bernards Of Esher Ltd
[1996] UKEAT 557_95_2005 · 1996-05-20

JUDGE K BASSINGTHWAIGHTE:

In the hearing of this appeal the Appellant has not been present. It is however clear from her letter of 24 April 1996 that she had no wish to be present and in fact submitted her appeal in writing; we therefore dealt with the appeal in her absence.This Appellant's complaints were set out in her Originating Application dated 30 August 1994 in this way:- Firstly, redundancy payments; secondly, unfair dismissal; thirdly, no written statement of employment and fourthly, denied statutory lunch/rest breaks.Her complaints were before a London (South) Industrial Tribunal on 9 February 1995 whose decision, in extended form, was promulgated to the parties on 18 April 1995. That decision records that the Industrial Tribunal unanimously found that the Appellant had been fairly dismissed, and in later paragraphs that that dismissal had been effected in circumstances which disentitled her to a redundancy payment.The Industrial Tribunal did not specifically record a finding that the Appellant had been dismissed on the ground of redundancy, but it is clear to us from a careful reading of their decision that that decision can bear no other interpretation than that they did so find.The decision also records that the complaint dealing with what the Industrial Tribunal took to be "breaches of the regulations governing shops and office premises" was withdrawn at the hearing, since the Industrial Tribunal persuaded the Appellant's representative that they had no jurisdiction to hear that complaint. Further, somewhat confusingly, the Industrial Tribunal decision at paragraph 2 records that the Appellant's complaint of not receiving written reasons for her dismissal was withdrawn, yet it is nowhere apparent from the documents before us that such a complaint was before the Industrial Tribunal.There was a complaint that the Appellant had never been given a written statement of her employment and that is a complaint which does not appear to have been addressed by the Industrial Tribunal at all.For reasons, which will become obvious, we deal with the issues other than her complaint of unfair dismissal and for a redundancy payment - in particular, the Appellant's complaints in her Notice of Appeal that those issues were dealt with too shortly by the Industrial Tribunal in ignorance of the implications for an award under The Wages Act 1986 and that the Industrial Tribunal did not deal with "the issue of notice" - in later paragraphs of this judgment.In her first Notice of Appeal, filed on 28 May 1995, the Appellant specified that her appeal was under the following separate headings:
"a. That the complaint seeking financial compensation connected with the denial of statutory breaks should not have been dismissed on 9 February and certainly not at the start of proceedings without prior warning.
b. The Tribunal failed to address the issue of notice.c. That it was not possible for the Tribunal to say, as a matter of law, that the alternative offer of work made to me was suitable.d. Concerning unfair dismissal:(1) The finding that consultation would have been futile was based on supposition not fact.(2) The Tribunal failed to address the other criteria which would have rendered the dismissal unfair.e. That the Respondent perjured himself and this casts doubt on the validity of his evidence overall."The respondent Company filed a response to that appeal on 18 January 1996, which suggested that the Appellant's appeal raised no question of law.In a document dated 23 April 1996 the Appellant has submitted a detailed written appeal and with which she has submitted some written evidence in the form of statements, which postdate the Industrial Tribunal hearing. There is no apparent reason why the evidence contained in any of those documents, apart that is from the letter which emanates from the respondent Company solicitors, could not have been made available to, and dealt with during, the Tribunal hearing. It is too late now to seek to put before this Appeal Tribunal such evidence and we record that we have not considered the statements or documents which post-date the hearing. Similarly it must be understood, that a hearing before this Appeal Tribunal is concerned only with points of law and therefore that it is not an opportunity for a party to seek a rehearing of the original complaints or to present further factual evidence simply because relevant findings of fact of the Industrial Tribunal, properly based on recorded evidence before them, are not accepted by that party.We have perused the Industrial Tribunal Chairman's record of evidence about which no complaint is made. The Industrial Tribunal's findings of fact, as they relate to the dismissal itself, appear in paragraphs 3 to 5 of their decision and for the purpose of this judgment we can do no better than to repeat those findings:-
"3. The Applicant had begun work for the Respondent's associated company, Bernards of Wimbledon Ltd., as a part-time assistant at its shop in Wimbledon Village on 20 May, 1990. In March, 1992 the Applicant increased her hours to full-time on the resignation of the manager, Mrs Chana. The Applicant considered herself to be the manager of the shop, holding the keys and looking after the shop when Mr Rapaport was absent. Mr Rapaport considered her to be the key-holder only, as she had no power to hire or dismiss. The Tribunal finds that the Applicant had charge of the shop in Mr Rapaport's absence, but nothing turns on the question of whether she was manager of the shop or not.
4. By January, 1994 the Wimbledon shop was feeling the effects of the recession and Mr Rapaport commented that if things continued the way they did, the shop would have to close. The Tribunal finds that this was not a likelihood in January, 1994, but a possibility and the Applicants and the assistant who worked with her, Mrs Howe, were entitled not to treat this remark as notice that a redundancy situation existed. The Tribunal finds that by May, 1994 the lease of the shop at Wimbledon was up for sale, but that no estate agent's board was displayed and the staff at the Wimbledon shop, including the Applicant, were not told of this. The Tribunal accepts the evidence of the Applicant and her witness, Mrs Howe, that they discovered the actual position when a prospective tenant came into the Wimbledon shop in May and showed them the advertising material from the estate agent. Mr Rapaport then confirmed to the Applicant in a telephone conversation that the shop lease was up for sale.5. The Respondent continued to make losses on the Wimbledon shop and was unable to sell the lease. By 14 July, 1994 those losses could no longer be sustained and on that day Mr Rapaport told the Applicant and others in the shop that the Wimbledon shop was to close. Work at the Respondent's shop in Esher was offered to all Wimbledon employees, but the Applicant refused it as unsuitable. The shop closed on 28th July, 1994, but the Applicant was not paid any redundancy payment. Mr Rapaport did propose to sell off stock during August, and issued advertising leaflets to this effect, but in the end did not hold a sale at the premises. The Applicant now works at another shop in Wimbledon Village. "Those findings of fact seem to us to be soundly based upon the evidence which was before the Industrial Tribunal. There can be no criticism of them before this Tribunal.From those findings of fact can be deduced the finding that the Appellant's employment came to an end when the shop closed on 28 July 1994, having been told finally on 14 July that that would be the position. The Industrial Tribunal found that there was a commercial reason for the decision to cease trading and such a situation is of course one which satisfies the statutory definition of redundancy, which is contained in Section 81(2) of the 1978 Act.The Industrial Tribunal next considered, as it was obliged to do, whether that dismissal had been fair or unfair. Its duty was to make that consideration under the provisions of Section 57(3) of the 1978 Act which reads as follows:
"57(3) Where the employer has fulfilled the requirements of subsection (1), then, `[subject to various matters which are not an issue in this case]' the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether [in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case.]"
In this case the Industrial Tribunal appreciated that they were concerned with a small businessman, one of whose shops was not performing commercially. The Industrial Tribunal found that he had shared his concerns with his workforce from January 1994 and that by May 1994 had decided to dispose of the business, although the workforce were told of that closure decision until two weeks before it occurred.The fairness of a redundancy dismissal was dealt with in 1988 by the House of Lords in the case of Polkey vAE Dayton Services Ltd [1988] ICR 142 , to which the Industrial Tribunal made reference in its decision. The Industrial Tribunal was perhaps simplifying the effect of that decision when it summarised it in paragraph 7 by saying that:
" ... it [that is consultation] may be dispensed with where consultation is futile. ..."
It is more helpful to look at the exact quotation from the judgment of Lord Bridge in that case, at page 162 beginning at letter H through to page 163 letter C, which is to the following effect:
" ... in the case of redundancy, the employer will normally not act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation. - `[and then taking up the judgment again at letter B]' - It is quite a different matter if the tribunal is able to conclude that the employer himself, at the time of dismissal, acted reasonably in taking the view that, in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with. ..."
In our view the Industrial Tribunal's findings are in accordance with that approach. They dealt with this aspect in paragraph 7 of their decision as follows:
"7. ... The Tribunal finds that in this particular case, consultation would have been futile; the financial position of the Wimbledon shop was so bad that it had to be closed without finding a buyer for the lease. Nothing which the Applicant could have said would have affected that position. With regard to warning the Tribunal finds that from May onwards the Applicant was on warning that the shop was to close. ..."
The Tribunal also considered whether the employer had offered alternative employment to the Appellant before dismissing her. That question is also relevant when an Industrial Tribunal looks to decide whether a redundancy dismissal was fair or unfair. The Industrial Tribunal found, as clearly they were entitled to do, that the possibility of offering employment to the Appellant was considered. Indeed, she was in fact offered employment at another shop, which she refused.Thus, the Industrial Tribunal's decision that this dismissal was fair cannot be challenged before this Appeal Tribunal. It was reached on the basis of explicable findings of fact and after they had correctly directed themselves, in accordance with the law.Where an employee is dismissed, fairly or unfairly, on the ground of redundancy, he or she is entitled to a redundancy payment. That entitlement is however, forfeit in the circumstances of Sections 82(3) and (5) of the 1978 Act as follows:
"(3) If an employer makes an employee an offer (whether in writing or not) before the ending of his employment under the previous contract to renew his contract of employment, or to re-engage him under a new contract of employment, so that the renewal or re-engagement would take effect either immediately on the ending of his employment under the previous contract or after an interval of not more than four weeks thereafter, the provisions of subsections (5) and (6) shall have effect."
Subsection (6) is not relevant in this case, but subsection (5) reads as follows:
"(5) If an employer makes an employee such an offer as is referred to in subsection (3) and either - (a) ... (b) the first-mentioned provisions would differ (wholly or in part) from those corresponding provisions, but the offer constitutes an offer of suitable employment in relation to the employee;
and in either case the employee unreasonably refuses that offer, he shall not be entitled to a redundancy payment by reason of his dismissal."While the Industrial Tribunal does not quote those provisions, it is clear to us that they had the framework of them in mind. They found that there was an offer of alternative employment which they regarded on the evidence before them, as suitable, which the Appellant, again in their finding, unreasonably refused.It is this aspect of the Industrial Tribunal's decision which is challenged most strongly by the Appellant. However, the Industrial Tribunal's decision in that respect, whether or not it is a decision which we ourselves would have reached, was again reached on the basis of facts before them after directing themselves correctly and in accordance with the law.This Appeal Tribunal cannot therefore interfere with the Industrial Tribunal's decision that the Appellant, by her unreasonable refusal of an offer of suitable alternative employment, forfeited her right to receive a redundancy payment.By that process of reasoning we have considered the substance of the Appellant's challenge to the Industrial Tribunal's finding of fair dismissal and the decision not to award a redundancy payment.The issue of what was termed as "the perjury of Mr Rapaport" remains. We have satisfied ourselves that that complaint concerns his evidence about the content of a telephone conversation concerning the Appellant's search for other employment in Wimbledon Village. It is a matter which, in our view, has no relevance with regard to the Industrial Tribunal's examination of the issues before them and therefore, even if the allegation is correct, (which cannot be definitively established since such evidence as there is, is distinctly and directly contradictory) it is not a matter which persuades us to interfere with the Industrial Tribunal's decision on the substantive issues.We return finally to the other issues raised by this appeal to which we referred earlier. The first such issue relates to what is now pleaded in the Notice of Appeal as justiciable under The Wages Act 1986 . It is put in this way in the Notice of Appeal:
"4 a. My working day was from 9.45 am until 5.45 pm.
b. In accordance with the provisions of the Shops Act, I should have been given a rest break of 20 minutes and a lunch interval of one hour.c. These periods are unpaid and constitute private time.d. The Respondent did not allow these breaks. He did allow staff to eat and drink within the building but whilst on call and therefore on duty.e. The Respondent therefore made his staff work for a period of one hour and twenty minutes daily when they were unpaid.f. He should have paid for the extra time worked.g. He did not do so and therefore he had, in effect, made an illegal deduction in contravention of the Wages Act.h. Contraventions of the Wages Act fall within the jurisdiction of the Industrial Tribunal."It is apparent from the Industrial Tribunal's decision that they persuaded the Appellant's representative, who is not legally qualified, to withdraw the complaint believing that it was based upon an interpretation of regulations governing working conditions, which are not within the jurisdiction of Industrial Tribunals. However, we do not doubt that, had the Industrial Tribunal had the benefit of the explanation now set out in the Notice of Appeal, they would have concluded - as we do - that there is, at the least, an arguable issue under The Wages Act 1986 .The consequent issue for us is this: has this Appellant been denied a fair hearing of her complaint by the action of the Industrial Tribunal such that we can categorise what occurred as an error of law? If an Appellant withdraws a complaint because of his or his representative's misunderstanding of the law, there can ordinarily be no complaint because the Tribunal accepts that withdrawal and dismisses the complaint, even if the Tribunal considers it an unwise course to have taken and even if the Tribunal does not share that thought with the Appellant or the representatives.However, if an Industrial Tribunal itself decides, before it has heard any evidence and before it has heard from a party how it is that he supports a claim, that it has no jurisdiction to hear that claim then it runs the risk of acting precipitately and unfairly. That in our judgment is what happened here: the Industrial Tribunal, faced with what can only be described as a cryptic claim persuaded the Appellant's representative, who was not legally qualified, to withdraw that claim without examining what it was about. While we have some sympathy and understanding with the Industrial Tribunal's response, what happened resulted in unfairness to the Appellant in the conduct of the hearing which must now be remedied.The Industrial Tribunal should therefore, examine the claim now expressed to be made under The Wages Act 1986 . It is not for this Appeal Tribunal to examine that issue as a Tribunal of first instance, not least because there are no findings of fact which would allow us to do so. We therefore, remit that issue back to the Industrial Tribunal for reconsideration.In that context the Industrial Tribunal will no doubt need to examine another claim which was present in the Originating Application and which they also neglected to consider; that is the complaint in respect of a lack of a written statement of employment and therefore, of its detailed provisions, which could have relevance when The Wages Act 1986 issue is before the Tribunal.Finally, in view of our remitting this case back to the Industrial Tribunal on the issues indicated, they should also consider the issue of unpaid notice pay, an issue with which they also did not deal although there was complaint in the Originating Application and although the evidence was before them of, and they made findings of fact with regard to, the period of notice given to the Appellant which was apparently less than her statutory entitlement.

Judge K Bassingthwaighte:

Sir:

MRS C BIBBEY - V - BERNARDS OF ESHER LTD

Enclosed please find second draft of the above judgment, as requested.

Iris Pain

29 May 1996