Malik v Cumaranatunge [1997] UKEAT 3_97_0205

EAT
Malik v Cumaranatunge
[1997] UKEAT 3_97_0205 · 1997-05-02

JUDGE PETER CLARK :

This is an appeal by the employer, Mr Malik, against a decision of the Stratford Industrial Tribunal sitting on 21st August 1996, that the applicant employee, Mrs Cumaranatunge, had been unfairly dismissed. Compensation totalling £6,400.00 was awarded to her. Extended reasons for the tribunal's decision are dated 5th December 1996.The applicant commenced employment at the Applegates Residential Care Home in Great Yeldham, Essex, as a Senior Care Assistant on 22nd February 1988. On 31st March 1995 the respondent acquired the business and with it the applicant and other employees.She was dismissed by letter dated 17th February 1996. She was not required to work out her notice and left on 24th February 1996.The reason advanced for her dismissal related to her conduct. On 29th January 1996 she received a written warning setting out five matters of complaint, namely that the applicant take the following action:
"1. To control your temper.
2. You must change your behaviour with colleagues.3. You must follow the rules of the home.4. You must know how to talk about your employer.5. To apologise to Mrs Malik about shouting on her on the phone."The last numbered matter allegedly arose during a telephone conversation between the applicant and Mrs Malik, the respondent's wife on 26th January 1996.The applicant replied to that letter by a letter written on 2nd February 1996, but mis-dated 2nd January 1996, in which she said:
"Dear Sir,
I acknowledge receipt of your letter dated 29th January 1996, the contents of which have been noted.Two witnesses will bear out the fact that your numbered points one to five bear no relation to the truth. Therefore I have nothing to reply to.

Your last paragraph stated that a copy was enclosed, but this was not the case."

The respondent wrote again on 8th February 1996 a final warning letter in which he said that the applicant's performance had fallen below the required standard and she was required:
"1. To control of your temper.
2. You must change your behaviour with colleagues.3. You must follow the rules and regulations of the home.4. To apologise to Mr and Mrs Malik about shouting on the phone and comments about Mr Malik."That final written warning of 8th February told the applicant that she needed to take certain actions to meet the required standard of conduct or performance, and said in terms:
"It [ that is her letter of 2nd February 1996 ] gave me impression that you are ignoring the warning at all. I give you one week time to comply the notice."
On 13th February the applicant replied simply saying:
"Dear Sir,
The letter dated 8th February 1996 and pinned to the Applegates notice board has been noted. Thanking you."On 17th February the respondent wrote the letter of dismissal which read:
"With reference of your letter dated 13.2.96 in response of my Final Warning, in which you just mentioned about my letter of Final Warning that you noted. It doesn't show that you going to comply the requirements of the Final Warning. As one week is finished on 15.2.96 as I given to comply the requirements otherwise, we will give you the notice to terminate the employment of you with Applegates."
She was given the alternative of working out seven weeks notice or finishing at the end of the week with pay in lieu and she chose the latter course.Although the burden lies on an employer to prove, on the balance of probabilities, the reason for dismissal, it is usually the case that he will establish a potentially fair reason for dismissal. Where conduct is the reason relied upon a genuine but mistaken belief in the misconduct alleged will be sufficient. See Trust House Forte v Aquilar [1976] IRLR 251 . However, if the employer had not acted reasonably in relying upon his genuine belief the dismissal may nevertheless be unfair under the provisions of what is now s.98(4) of the Employment Rights Act 1996 . See Smith v City of Glasgow District Council [1985] IRLR 79 .This case is unusual in that the applicant challenged the genuineness of the reason put forward by the respondent. As she said in her letter of 2nd February 1996:
"your numbered points 1-5 [ contained in the first warning letter of 29th January ] bear no relation to the truth."
Before the Industrial Tribunal she called witnesses to support that case. Mrs Choat, the previous manager; Mrs Woodhead, who succeed Mrs Choat on 9th August 1995 and resigned in later November 1995; and fellow care assistants at the home, Janet Smith and Mrs Patterson.In careful and detailed extended reasons, the tribunal analysed the evidence which it heard from the applicant and her witnesses on the one hand and Mr and Mrs Malik on the other. On a number of material issues there was no room for misunderstanding; one side or the other was lying. Having seen and heard the witnesses the tribunal preferred the evidence called on behalf of the applicant to that called by the respondent. We observe that the respondent was represented by Counsel, who the opportunity to test the evidence of the opposing witnesses in cross-examination.Based on those findings. the tribunal concluded that the respondent had not made out a potentially fair reason for dismissal. It regarded the grounds of complaint in the letters of warning as manufactured. However, it went on to find that even had the respondent established conduct as the reason for dismissal, he did not have reasonable grounds for dismissal, nor did he carry out a reasonable investigation. On that further basis, it found the dismissal to be unfair.We do not find it necessary for the purposes of this judgment to repeat the tribunal's careful findings of fact which led it to those conclusions. The findings speak for themselves.Dissatisfied with the tribunal's decision, the respondent applied for a review. He wanted an opportunity to call further evidence to show that the applicant's witnesses were not telling the truth. The Chairman dismissed that application on the grounds that the proposed additional evidence could have been adduced at the original hearing.Further, Mr Malik has appealed against the tribunal's decision. The matter comes before us today on a preliminary hearing, held to determine whether or not this appeal raises any arguable point of law to go to a full hearing before the appeal tribunal.He takes two points.The first is that he was not given an opportunity to go home during the luncheon adjournment on the day of the tribunal hearing in order to bring back a copy of the contract of employment issued to the applicant, which he says would have had an important bearing on the outcome of the case.We have already observed that he was represented by Counsel at the hearing. It follows of course that Counsel was instructed by solicitors acting for the respondent, and who had advised him prior to the hearing date. It seems to us quite extraordinary that if the contract of employment was to play such a large part in the respondent's case, a copy would not have been provided to the solicitors who were in the course of preparing that case.On the application for review the Chairman said that the contract of employment played no part in the decision in this case. We are not entirely surprised. This was a case that depended on the oral evidence that was led before the tribunal and which witnesses were believed and whose evidence was rejected. We therefore see no point of law raised in this ground of appeal.Secondly, he complains that the applicant brought witnesses to give evidence before the tribunal, but did not earlier disclose the identity of those witnesses, nor provide written statements from them in advance of the hearing. There was no direction for exchange of witness statements in this case, and therefore that was a course which the applicant's adviser was perfectly entitled to take. Again, we can see nothing in this point.It follows, that in all the circumstances, our jurisdiction being limited to correcting errors of law, there is no arguable point to go to a full hearing and, accordingly, this appeal must be dismissed.