Brockbank v Gill [1997] UKEAT 585_97_1711

EAT
Brockbank v Gill
[1997] UKEAT 585_97_1711 · 1997-11-17
MR JUSTICE LINDSAY : We have before us a Notice of Appeal of 24 April 1997 in the matter of Mrs Madeline Mary Brockbank, the Respondent being Mr K.S. Gill.On 8 November 1996 Mrs Madeline Brockbank completed an IT1 alleging unfair dismissal and sex discrimination. She believed she had been dismissed because she was pregnant. The employer identified in that IT1 was Mr Gill.On 21 November 1996 that IT1 was answered, as it needed to be, by an IT3 on behalf of Mr Gill in which, setting out at some length other matters, he did claim that there had been a notice of termination of employment in respect of Mrs Brockbank but that it had been requested by her husband. The IT3 made the point that it had been thought, as it would seem, by Mr or Mrs Brockbank that her notice of termination would help her in a sickness benefit claim:
"We terminated her job on their request for a letter which could help them claim sickness benefit."
So said the IT3.So it was that from the outset, among other points, there was raised the point that termination had been at the request of Mrs Brockbank by way of her husband.On 9 January Mrs Brockbank's advisers asked Mr Gill to supply information. The Charnwood Citizens Advice Bureau wrote:
"I would be obliged if you would send to me written reasons for the dismissal of Mrs M.Brockbank.
It would be helpful if you could also provide me with a copy of her Contract of Employment and any other relevant document on which you will rely at the hearing."There was never any order for the exchange of witness statements.On 11 January, in reference to that letter from the Citizens Advice Bureau, Mr Gill wrote, and again, among other points, he said:
".. please note that we did not terminate Mrs M Brockbank's temporary cover job. She was offered a permanent job which she turned down."
And then going on:
"Further, her husband, Mr P Brockbank requested me to issue a notice in writing to state that her temporary job had come to an end. This was to allow her to claim sickness benefit. Even at this stage I told Mr P. Brockbank that when Mrs Brockbank was feeling better then she could resume cover work."
So that again, 11 January, still the point is made that the termination had been upon a request made by Mr Brockbank.Then on 21 March 1997 there was the hearing before Mr P.G. Polletts, as Chairman and Mr Higgins and Ms Foxworthy as Members. The unanimous decision of the Tribunal was that the application was dismissed. The hearing had heard evidence from Mr Brockbank, Mrs Brockbank, Mr Gill and Samantha Freeman.The Industrial Tribunal said at paragraph 8:
"Where the evidence conflicts, and it does in various material respects in this case, the Tribunal prefer the evidence which has been given by the respondents."
They heard evidence, as I mentioned, from Samantha Freeman and they say this:
"Now Samantha Freeman is the only evidence that we have heard, which is not the evidence of a party (with the exception of the applicant's husband) and whilst we bear in mind the fact that Samantha Freeman is an employee of the respondents nevertheless we accept what she says. Her evidence is that she can remember Mr Brockbank asking for the letter based on the fact that the applicant had not paid enough contributions to get full entitlement to benefit and that it would help her if a letter was written to the effect that she was no longer employed. That piece of evidence supports the Tribunal's view that it is more likely than not that such a letter was asked for."
On page 7 the Industrial Tribunal concluded:
"... the applicant has not persuaded us that she was dismissed by reason of her pregnancy. We are not satisfied on that point. The unfair dismissal and sex discrimination claims hinge on that allegation and therefore our unanimous decision is that the application is dismissed."
On 14 April there was a request for a review. The grounds for the review take up some two and a quarter pages of typescript. On 24 April there was the Notice of Appeal, which I have mentioned, and the grounds set out for the Notice of Appeal are identical to the grounds for a review.On 9 May the Chairman wrote to ask what evidence had become available since the hearing that could not have been given at the hearing and on 20 May it was indicated, on Mrs Brockbank's part, that there was no further evidence to present and so on 28 May the Chairman declined a review. A letter was written saying:
"The Chairman notes your comments and responds as follows:
'No new evidence has become available, since the hearing.
The Tribunal considered all evidence available at the hearing and made a decision based on such evidence. The interests of justice do not require a review which is refused'."The letter of termination, which was at the nub of the case, is headed "Highbury Residential Home", which is where Mr Gill carried on that business, is addressed to Mrs Brockbank (in fact it is addressed to "Mrs Brobank" but I do not think anything turns on that) and it reads as follows:
"Dear Madie, 25th Oct 96.
This is to inform you that your temporary position as Assistant Cook at Highbury Residential Home is terminated as of 1st Nov 96.I thank you for your work at Highbury and wish you the best for the future.

Yours faithfully

K.S. Gill

PS This is a confirmation of my verbal conversation with your Husband on 25th Oct 96."That letter, obviously, was crucial to the considerations which fell to be decided by the Industrial Tribunal and at paragraph 6 they said this:
"We have said earlier that there is a complete conflict between the applicant's evidence and respondent's evidence. We have to decide which evidence we accept. We have taken into account various matters including two specific matters, firstly the reference in a PS to the letter of dismissal at R8 [that is a reference to a document]. This is a PS which reads ..."
And then the PS which I have just read out is then repeated.
"The Tribunal believe that that PS is more likely to have been written in relation to a request that had been made for the letter of termination to be written.
Our belief in that respect is backed by the evidence of Samantha Freeman ... which she confirmed on oath. "They then continued with the passage cited above indicating that they accept Ms Freeman's evidence.The comparative used in the sentence by the Tribunal - "that the PS is more likely to have been written in relation to a request" - indicates that they plainly understood to have had in front of them more than one version explaining the postscript to that letter. They preferred the evidence of the Respondents.So far as one can tell from their findings, no evidence seems to have been given that the husband did not have the authority of the wife to make the request which the letter, by its postscript, refers to. The husband was well known to the employer because he was also an employee at the home. There is no evidence that the employer had any reason not to believe that the husband was acting with the wife's authority. There is no evidence of any prompt response by Mrs Brockbank to her receipt of the letter of 25 October indicating that there could have been properly no request on her part for a termination.Mrs Smith quite rightly draws powerful attention to the point that the idea of seeking a termination in order to improve one's benefits is fallacious, but the question for the Tribunal was not what was the reason behind the request but whether the request was, indeed, made and one has to accept that quite often things are done without good reason, particularly in complicated areas, such as the one here, of a comparative assessment of various possible benefits.Mrs Brockbank was on sick leave at the time of the request. It would therefore be natural enough to expect her husband, who was attending the premises as an employee, to mention to the employer a request on his sick wife's behalf, if, indeed, such a request was intended to be conveyed to the employer. So far as we can judge from the preference adopted by the Industrial Tribunal as to whose evidence to accept, Mr Gill plainly took it to be a request made on behalf of the wife and, as I have mentioned, the evidence of the employer side was preferred.We find that the Notice of Appeal discloses no error of law and we emphasise that it is only an error of law that brings the matter within our remit; finding none, we cannot assist Mrs Brockbank, given that the fundamental complaint that Mrs Smith makes is that the evidence of the Respondents should, overall, not have been believed. Whether it should have been or not is essentially a matter of fact for the Industrial Tribunal itself, rather than a matter of law for us, and accordingly we have to dismiss the appeal.