Patchett v Fittleworth Medical Ltd [1997] UKEAT 570_97_0910

EAT
Patchett v Fittleworth Medical Ltd
[1997] UKEAT 570_97_0910 · 1997-10-09
MR JUSTICE MAURICE KAY : This is the preliminary hearing of an appeal by Ms Patchett against a decision of an Industrial Tribunal which sat in Brighton on 31st October 1996. She had been Regional Sales Manager of the respondent company. On 12th April 1996 Mr Bradley of the respondent company wrote to her a letter dismissing her. She claimed unfair dismissal but her application was dismissed by the Industrial Tribunal.The factual circumstances which led to the dispute centred upon a meeting on Friday, 8th March 1996. That was to be a meeting between Ms Patchett and two of the sales representatives in the southern region. It was a meeting with an agenda (which is at page 11 of our bundle). It was to cover a number of items in the morning and the afternoon. One of the four items included for the morning session being "Body language". It seems that Mr Bradley must have got wind of this because there was a telephone conversation between him and Ms Patchett on 7th March about the meeting for the next day. In its summary reasons, the tribunal said:
"7 ... There was some discussion with regard to the costs of room hire for the meeting, but alternative arrangements had been made. The critical part of the telephone conversation was not disputed by the applicant. In particular, her evidence to the Tribunal was that Mr Bradley has said to her "I understand you are undertaking a training meeting and I understand that body language is on the agenda for the training meeting". The applicant stated that she had replied "No" in equivocal terms to that question."
The significance of that is that according to the tribunal's findings, in the previous month Ms Patchett had been told not to conduct training otherwise than on a national basis at national sales conferences or meetings. Mr Bradley took the view that an agenda which included "body language" transgressed the instruction which Ms Patchett had been given in February.According to the tribunal's findings Mr Bradley made enquiries of the two representatives who attended the meeting and after the meeting had taken place they informed him that body language had been on the agenda at the meeting. They did not give evidence, this was hearsay, but the Industrial Tribunal had a discretion to receive it in that form.Mr Bradley required a meeting with Ms Patchett. After one postponement, one took place on 10th April. It gave rise to the letter of 12th April. It set out Mr Bradley's account of the previous weeks including the all important telephone call. It indicated that that account had not been disputed by Ms Patchett in their meeting the day before. That, as we have observed, was the letter of dismissal.The Industrial Tribunal observed that at the meeting on 10th April Ms Patchett had not disputed that she had stated unequivocally to Mr Bradley that body language was not going to be discussed at the meeting. The tribunal add:
"11 ... What she did say was that body language was not being discussed within the context to training."
The tribunal proceed to observe that Mr Bradley considered that to be disingenuous.What all this amounted to was that Mr Bradley's evidence, accepted by the tribunal, was that he genuinely believed on reasonable grounds that Ms Patchett had lied to him on the telephone on 7th March. In view of her seniority and the trust which must exist between employees at that level, he proceeded to dismiss her. The Industrial Tribunal went on to consider, in accordance with legal test, whether that dismissal was within a reasonable range of responses. It held that it was, and hence the finding that it was a fair dismissal.The subsequent history has caused some displeasure to Ms Patchett. She applied to the tribunal for a review in part on the basis that her itemised telephone bill disclosed that the length of the all important telephone conversation was 34 minutes and 36 seconds rather than the four or five minutes to which Mr Bradley had referred in evidence. It is right to observe that the itemised bill contains another call to the same number on the same morning that was of 5 minutes 46 seconds. Be that as it may, the tribunal Chairman would not carry out a review. He took the view that that evidence had been available to Ms Patchett at the time of the tribunal, but was not produced by her. She disputes that recalling that the tribunal did not seem interested in it. However, the tribunal Chairman observed in a letter dated 10th February 1997, that the length of the call was not a determining factor in the tribunal's decision. Indeed, it is difficult to see how it could be in view of the tribunal's view of the evidence which was that there was no material dispute as to what had been said on the telephone.In due course Ms Patchett asked for extended reasons, but by the time she did so, she was outside the time limit of 21 days which would have entitled her to the same. There is a letter indicating that she was being refused extended reasons on that very ground. She says that at different times the tribunal staff had told her things inconsistent with that history.She now seeks to appeal to this appeal tribunal. By her Notice of Appeal the grounds whereby she sought to establish a point of law were that:
"In determining the fairness of the dismissal, the tribunal misapplied or misconstrued the statutory test under Section 98 of the Employment Rights Act 1996 in that it decided the issue on the basis of how the Tribunal would itself have acted had it been the employer rather than by considering (as it should have done) whether the Respondent's decision to dismiss the Appellant was one which it was open to a reasonable employer to take in the circumstances of the case."
We have to say that the submissions made by Ms Hough this morning in support of this appeal bare very little resemblance to that expressed ground of appeal. Submissions made today amount to this. First , that the tribunal misunderstood the evidence to the extent that it found that the critical part of the telephone conversation was not disputed by the applicant and was as set out in paragraph 7 of the summary reasons. It is suggested that Ms Patchett gave different evidence about that conversation in the sense she did not reply with an unequivocal "no", but with a qualified "no". Secondly and connected with that, it is submitted that the reasons in summary form are therefore not a true and accurate representation of the evidence. Thirdly , it was submitted that the tribunal had acted perversely in not providing extended reasons.We deal with that third submission immediately in this way. Ms Hough now accepts that whatever grievance was felt by Ms Patchett as a result of her telephone calls with tribunal staff, that cannot raise any point of law that would be arguable on this appeal.Whether or not this appeal has any prospect of success must turn on whether the submission regarding a misunderstanding of the evidence is one that has any prospect of being sustained upon a final hearing. We have considered all the documents in this case including the IT1 lodged on behalf of Ms Patchett in which she set out in some detail her case. However, in it she did not give a version of the critical telephone call, notwithstanding a typed document of 1½ pages in length. When all the documents and the reactions of Ms Patchett to the documents are considered, we find it impossible to accept that the tribunal misunderstood the evidence in this case. It seems to us that the findings expressed in paragraph 7 of the summary reasons are entirely consistent with the documents which had preceded these events, including the agenda for the meeting and Mr Bradley's letter of 12th April 1996. It seems to us that Ms Patchett would have no prospect at all of sustaining an argument that the tribunal's finding as set out in paragraph 7 of the summary reasons misrepresented the evidence that had been given. In those circumstances, in our judgment, that point has no prospect of success in any further hearing.Although the original ground of appeal has not been put forward as such in submissions today, we feel obliged to refer to it. In our judgment it could not made out. It is clear on the face of the summary reasons that the tribunal did not do what the ground of appeal suggests that it did, and we can see no sign whatsoever that the tribunal misapplied or misconstrued the statutory test. In all those circumstances we have considered whether any purpose would be served by this appeal proceeding to a final hearing. In view of the fact that we have come to the unanimous conclusion that it would be bound to fail, we shall not permit it to go to a final hearing and it is hereby dismissed.