Galbraith v S L B Holdings Ltd [1997] UKEAT 533_97_0112

EAT
Galbraith v S L B Holdings Ltd
[1997] UKEAT 533_97_0112 · 1997-12-01
MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is an arguable point of law in respect of an appeal which Mrs Galbraith wishes to maintain against two decisions of an Industrial Tribunal held at Bury St Edmunds.The first decision, which we can describe as the "liability" decision, was sent to the parties on 25 November 1996. It was the unanimous decision of the Tribunal that the Applicant, Mrs Galbraith, had been unfairly dismissed by SLB Holdings Ltd, her former employers. It was also their decision that the questions of remedy should be dealt with at an adjourned hearing.The basis of the decision of the Industrial Tribunal can be summarised in this way - there was a substantial issue of fact before the Industrial Tribunal as to what Mrs Galbraith's working hours were. Apparently, according to her husband who has told us today and we accept, she saw a job advertised at 36 hours per week; she attended for an interview and believed she was being offered a job at 36 hours per week and accepted employment on that basis. Subsequently, having been recruited in February 1993, she received a letter dated 10 May 1993 which said that the contract had wrongly stated 36 hours as the working week and it should have read 40 hours per week. Various revised terms and conditions were set out and she was invited to sign and return that document to indicate that she accepted it. She did not fill in the document but she had a meeting with a Mrs Coward in relation to the terms of that letter.It was and is Mrs Galbraith's case that, in effect, she was only ever employed on 36 hours per week but that there was an arrangement which she arrived at with Mrs Coward whereby if the occasion arose, she could be required to work up to 40 hours in a particular week. There were time-sheets which had to be filled in and it would appear from the findings of fact made by the Industrial Tribunal, that the time sheets which were submitted to the company's Head Office did not disclose the fact that she was working 36 hours per week (which is actually what she says she was doing), rather it purported to show that she was working 40 hours per week.The case as presented by the Applicant at the Industrial Tribunal was that the reason why she had been dismissed had, in effect, been concocted by her employers because she had complained about the way she had been treated by the new supervisor, Mrs Summerfield.Having made complaints about the way Mrs Summerfield was behaving, what then happened was that she was summoned to a meeting where, for the very first time, questions were raised about her time-sheets. That then became the reason why the employers dismissed her. The Industrial Tribunal concluded that it was quite clear that the reason why she was dismissed related to the time-sheets and that was a reason which fell within Section 98(2) of the Employment Rights Act 1996 , but that the dismissal was unfair because they had very great reservation (as they put it) about the fairness of calling the Applicant to a disciplinary meeting to discuss the cover which she had arranged for the showroom on that day, and then putting to her an entirely separate allegation at the hearing itself.Secondly, the Tribunal were critical of the fact that they did not alert her before the meeting to the fact that her job was in jeopardy and thirdly, they did not give her an opportunity properly to consider all the relevant documents or to put forward her best case in relation to the time-sheets. They were also critical of the fact that the written disciplinary procedure required that the dismissal must be approved by the appropriate Director in consultation with the Personnel Manager and they concluded that by reason of the shortcomings referred to, the employers had failed to comply both with their own procedure and in any event with a fair procedure and that rendered the dismissal unfair.The Tribunal then went on to say that the Appellate process which there was, by way of an internal appeal, did not cure the defects in the dismissal process. Their conclusion in paragraph 33 was:
".... As far as this is concerned we are quite satisfied that the Applicant [Mrs Galbraith] since May 1993 was employed under a contract which required her to work 40 hours per week ..... It is not necessary for an employee to sign for written particulars. She operated under them [the terms of that letter and the new terms and conditions] with no overt protest."
They continued:
"We are also satisfied that the applicant tried to take off between one and two days per month to compensate herself for what she regarded as her "due". We are also satisfied that the applicant did not want to let her employers know what she was doing. She well knew, before she completed the time sheet in issue, which days cover had been arranged for and knew the dates on which her assistant would be attending. She completed the time sheets wrongly knowing that they were completed wrongly. Had she wished to complete the forms correctly she would have marked on the form, as she did in week 46, "These are my normal working hours but I am holiday this week."
The Tribunal in the decision on liability gave an indication to the parties, in order to assist them to arrive at a sensible compromise, as to how they would be likely to approach the question of compensation. The parties were unable to arrive at an agreement. The matter came back before the Industrial Tribunal in February 1997 where they made the following findings. They would have expected the Applicant's employment to continue only for about a month, whilst the correct procedures were undertaken. Secondly, having regard to what they regarded as her own contributory fault, they reduced the basic and compensatory awards by 50%. The consequence of all that was that the employers were ordered to pay her the sum of £954.50. That second decision on compensation was sent to the parties on 5 April (we think) 1997, although it might have been the 5 March 1997.A Notice of Appeal was filed in this case which was out of time in relation to the liability decision but in time in relation to the compensation decision. This point was taken up by the Registrar with Mrs Galbraith's representative, namely her husband, and a letter was received from the Applicant saying that she was not appealing against the liability decision which was in her favour, but against the issue of what they describe as Mrs Galbraith's contract of employment.It is clear to us that the Galbraiths have strong views about the way that she was treated by her employers. We are not surprised, bearing in mind that they were at the best incompetent in relation to the way they contracted with her in the first instance and secondly in the procedural respects which are set out in the Tribunal's decision on liability to which I have referred.However, we have to ask ourselves before we can entertain an appeal, whether there is any arguable point of law. Mr Galbraith firstly says that there may be an element of sex discrimination here. He points out that what the employers were doing was picking on Mrs Galbraith, out of all the other managers, and giving her longer hours in her working week than the others had under their contracts of employment, which required them only to work for 36 hours per week. Accordingly, he says that that is picking on somebody. She is a woman and they had been picking on her by reason of her sex. He says that they did not know that they had such a claim until the Tribunal's hearing on liability, when the internal memorandum to which the Tribunal refer in their liability decision, was disclosed to them. Accordingly he says that there may be an extant claim for sex discrimination. He goes on to tell us, as is unquestionably the case, that he would attribute the way his wife was treated in relation to the hours of work not on the basis that she was a woman whereas others were not, but because the company itself had decided, as a matter of policy, that it would change the working hours to accommodate the potentiality of Sunday working. She was a new recruit and they had made some error in the way in which they had decided to contract with new recruits, but what they were seeking to do was, as from a specific date, only to take on people who were willing to work a 40 hour week. In other words, the reason why Mrs Galbraith was being required to work 40 hours as opposed to 36 hours had nothing to do with her sex, but everything to do with the timing at which she had been recruited. Accordingly, it seems to us, there is no point of law which has somehow escaped the Tribunal's attention. Furthermore, this was not apparently a claim which had been presented to the Industrial Tribunal itself.Secondly, he argues very strongly that effectively the Tribunal's conclusion that Mrs Galbraith had accepted a 40 hour week was perverse. He says that there is good evidence from others in the form of written statements, that indeed she had not accepted a 40 hour week; that she had continued to work a 36 hour week except when occasionally asked to work for longer.It seems to us that despite the strength of feeling which they have in this matter, we cannot overlook the fact that what we are trying to find is a point of law on which we could say that the Industrial Tribunal have misdirected themselves. There is no doubt that there was evidence before the Industrial Tribunal upon which the Tribunal were entitled to rely in arriving at the conclusion that she had worked the 40 hour week with no overt protest, and to justify their finding which I have referred to at paragraph 33 of their decision. This is not a case therefore where it can be said that the Tribunal have acted without any evidence to support a finding. All that this is, and it is not an infrequent occurrence, is that the party against whom a finding of fact has been made, is dissatisfied with the finding and would have wished the finding to have been made in the other direction. That is not a point of law. That is simply a wish to have the facts weighed and assessed in a different way and accordingly that does not give us any jurisdiction to look at this case either.It seems to us that there is no point of law in the way in which the Industrial Tribunal have dealt with compensation. The 50% reduction may have been felt to be harsh by the Galbraiths as also the assessment that she would have only have been employed for a further month or so, if she had been fairly dealt with. But it does seem to us that those were judgements for the fact-finding Tribunal, namely the Industrial Tribunal, and again we are unable to identify any point of law.Mr Galbraith felt that he was disadvantaged at the Industrial Tribunal as a result of not having had the benefit of legal representation, whereas the employers were represented by a solicitor. We should say that for our part we are very used to dealing with people who do not have the benefit, sometimes the dubious benefit, of legal representation. We would hope that an Industrial Tribunal would be as well capable of being even-handed as we feel this Tribunal must have been in this case. Since there is no indication from the terms of their decision that they have taken other than a balanced view about the respective conduct of the parties in this case, although disappointing to the Galbraiths, we are bound to say that this appeal, in our judgement, does not disclose an arguable point of law and must be dismissed.