Southall & Co v Roberts [1997] UKEAT 1070_96_0904

EAT
Southall & Co v Roberts
[1997] UKEAT 1070_96_0904 · 1997-04-09

JUDGE LEVY QC:

This is an appeal against a decision of an Industrial Tribunal sitting in Birmingham, which decided by a decision sent to the parties on 13 August 1996, that Mrs J S Roberts was unfairly dismissed by the Appellant, Messrs Southall & Co.The short facts on which the appeal is based we can take from the chronology produced with her Skeleton Argument by Miss Norman, who appeared for the Appellant below and appears before us.In October 1973 Mrs Roberts, the Respondent to the appeal, began working for her husband, a solicitor, at Gordon Roberts & Co. In 1988 Gordon Roberts & Co. merged with the Appellant firm, Southall & Co. That firm has several branches but Mr Southall is the sole equity partner. In August 1988 Mrs Roberts and her husband began working at the Coventry Road office of Southall & Co. in Birmingham. On 7 September 1995, some years later, her husband's partnership in Southall & Co. was terminated and we understand from the papers that there are proceedings outstanding in an Industrial Tribunal about that termination.Mrs Roberts, who had worked more or less exclusively for her husband, continued working for Southall & Co. at the Coventry Road office after he left. Mr Crook who was the resident "senior partner" talked to her on the day her husband left and her evidence, which was not challenged, was that:
"Not withstanding her husband's abrupt and no doubt acrimonious departure the day before, she assured Mr Crook that she personally would not do anything underhand and Mr Crook readily agreed that he did not think she would."
In paragraphs 2.4 and 2.5 of the Industrial Tribunal's Extended Reasons they say this:
"2.4 ....Thereafter the applicant worked for various people, including Mr Crook who pronounced himself more than satisfied with her work. From that day on, however, her husband's old office was kept locked.
2.5 On 25 September 1995 Mr Roberts commenced working for a rival organisation across the Coventry Road called Elliott & Co. [across the road from the office at which Mrs Roberts was working]..."On 2 October 1995 the Appellant here learned of that and on 3 October they took the decision to dismiss Mrs Roberts summarily. The way that she was dismissed was by way of a letter which, having ascertained that the husband was there, was sent to the office across the road and was addressed to Mrs Roberts c/o of Mr Roberts. The letter of dismissal gave her 12 weeks money in lieu of notice. She then started the proceedings in the Industrial Tribunal which led to the decision, which we have mentioned, and from which the Appellants Southall & Co appeal.The facts are relatively simple but what is behind the appeal is the manner in which the Industrial Tribunal dealt with the matter. There is a finding by the Industrial Tribunal in paragraph 3.6 which reads as follows:
"Whilst we accept that the applicant was dismissed for some other substantial reason within the meaning of Section 57(1)(b) of the Act [now Section 98 of the Employment Rights Act 1996], we nevertheless feel that such dismissal fell outside the band of reasonable responses to be expected of the employer and we also find that the manner of the applicant's dismissal was unfair."
Quite clearly one can understand that it is unsatisfactory for a firm of solicitors to find in one of its branches, that a former "partner" is working across the road, while the wife of the former "partner" is working in that branch. On the other hand, the evidence was that the wife, the Respondent here, had been a faithful employee for many many years and had been party to the conversation set out. Was it necessary for her to be summarily dismissed in the way she was? The Tribunal addressed the two questions in a somewhat convoluted way but they reached the clear conclusion on the facts that it was quite wrong for the Appellant here to dismiss without any consultation and without any thought of consultation. The Industrial Tribunal were referred by Mrs Norman to three authorities namely: Foot v Eastern Counties Timber Co Ltd [1972] IRLR 83 , Skyrail Oceanic Limited v Coleman [1981] ICR 864 and Dyer v Inverclyde Taxis Limited EAT/462/87 unreported . They obviously had the decision in those cases in mind, when they reached their decision here on facts which were quite different.In the second paragraph of 3.6 of the Extended Reasons, the Tribunal said:
"Whilst we accept that the applicant was dismissed for some other substantial reason within the meaning of Section 57(1)(b) of the Act... we also find that the manner of the applicant's dismissal was unfair."
We agree with the submission of Mr Linden but there were two reasons for the decision: first the finding that the dismissal was outside the band of reasonable responses and secondly that the manner of dismissal was unfair. We further agree with him that the Appellant must show that both reasons were wrong before it can succeed on this appeal. On the first ground we think there is much force in the submission made by Miss Norman for the Appellant. The second has caused us a great deal of debate during the day. Mr Linden has said to us "well we may think that is wrong, but it is not for us to substitute our decision for that of the Industrial Tribunal". We think he is right in that submission; we might well have come to a different decision. But we can see that, on the facts of this specific case, the Industrial Tribunal may well have felt that Mrs Roberts, with her faithful service to the Appellants, was entitled to something different to a letter of dismissal sent in the way it was. Indeed, if there had been some sort of consultation, as the Tribunal found in its reasons, there might have been a different result. It is our duty to uphold the decision of an Industrial Tribunal unless there is an error in the findings of fact or an error in law. We have come to the conclusion that there has not been such an error here.Apart from the cases cited above, we have been referred to a number of cases by Miss Norman including Polkey v Dayton Services [1988] AL 344 and East Berkshire Health Authority v Matadeen [1992] ICR 723 .We remain unpersuaded that on the facts as they found them the Industrial Tribunal were wrong to hold that in the circumstances of the case the dismissal of Mrs Roberts was unfair.As we say, it may well be that a different Industrial Tribunal, having seen the parties, might have come to a different decision but this was a decision that that Industrial Tribunal was entitled to reach. We dismiss the appeal.