Burton v Nottingham Animal By Products [1998] UKEAT 447_97_0307

EAT
Burton v Nottingham Animal By Products
[1998] UKEAT 447_97_0307 · 1998-07-03

JUDGE J HULL QC :

This is an appeal to us by Mr Adam Paul Burton who was employed by the Respondents, Nottingham Animal By Products, as a gutman and pet food manager at Langar, Nottingham.The Respondents are, in fact, an organisation run by his own brother, Mark Burton, and another gentleman, David Michael Audley; both of them gave evidence to the Industrial Tribunal and so, on their behalf, did a lady, Christine Smith, who was the wage clerk employed by the company.There was a good deal of conflict in the evidence. Mr Burton said that he was first employed in 1985. The Respondents said that he was first employed on 5 April 1993 (that was in their IT3). That may have depended to some extent on a transfer of undertakings or change in name of the organisation. More to the point, the defendants said that Mr Burton's employment with them ended on 22 December 1995; it was their case that he simply left, that is to say that he resigned.So far as Mr Adam Burton was concerned, he said, and says to us today, that his employment continued until February 1996 when he was laid off because there was not enough work. He understood, following conversations, that he was simply laid off, that is to say that his employment would presently resume if there was enough work. Eventually, having consulted others, he came to the conclusion that his employment, in one way or another, had come to an end in February 1996, as he says, and therefore on 8 October 1996 he issued his IT1, his complaint to the Industrial Tribunal, on the face of it complaining simply of redundancy but in fact it was treated by the Tribunal, no doubt quite rightly, as a case of unfair dismissal as well, and breach of contract.The Respondents in their case mentioned what I have said, that he was not dismissed and the Industrial Tribunal sat at Nottingham on 8 January 1997 and then, in a resumed hearing, on 10 February and they finally gave their decision on 17 February, in which they rejected both the claim for a redundancy payment and for unfair dismissal and breach of contract. In due course Mr Burton appealed from that to us.We look at the Industrial Tribunal's Extended Reasons. They set out the evidence which they had heard. I should say that in addition to the witnesses for the Respondents, of course they heard Mr Burton, they also heard a man from the mortgage brokers whom Mr Burton consulted, to say what was the substance of his conversations with the Respondents, and he also called another witness.The Tribunal set out what I have already referred to. They said:
"3. One of the respondents, Mr Mark Burton, is the applicant's brother. We heard evidence of a number of allegations relating to the employment in the past, which was not of any relevance to our decision. However, we also accept that there was a personal dispute between the brothers which started in the early summer of 1995 when their sister died. Relations became strained and we prefer the evidence of the respondent that in September the applicant told Mark Burton that he intended to leave the respondent's employment at Christmas. The applicant was at the time changing house and made a mortgage application for a new property where he was assisted by Mr Winfield. The building society needed details of his employment for mortgage purposes and applied to the respondent for this.
4. It was Mrs Smith's job to respond to the building society, but she was unhappy doing so as she had been told that the applicant was due to leave. However, Mr Mark Burton told her that she should respond to the building society and she wrote on 21 December confirming the applicant's level of earnings and suggesting that this employment was permanent. She put in that response the applicant's correct level of remuneration of £120 a week which was consistent with the computer pay records that she operated. However, that was not sufficient income for the mortgage purposes and we find that she then produced, at Mr Mark Burton's request, three handwritten wage slips showing the applicant's earnings at £180 a week. She also produced a P45 showing the applicant's earnings to 22 December 1995 and this was submitted to the Inland Revenue. The applicant spoke on the telephone to Mrs Smith and in conversation confirmed that he was leaving on 22 December."Needless to say these findings of the Industrial Tribunal were the subject of considerable dispute. They are finding, quite plainly, that all those concerned, on both sides, had been involved in an attempt to defraud the proposed mortgagee and perhaps also the mortgage broker by misrepresenting the level of the Applicant's earnings and doing so by producing handwritten wage slips which were, in effect, bogus. That is what the Tribunal found. They also found, having heard a good deal of oral evidence, that the Applicant had told the Respondents that he was leaving before Christmas, that is to say, on 22 December.They go on to say:
"5. The applicant alleged that he was still working into February, but we do not accept that evidence. It is clear that he did not sign on as unemployed until February and we do not know the reason for that. Although, in a letter from Mr Audley, it was suggested that the applicant had finished in February and that this was linked with the BSE crisis, we accept that that was an error. It is clear that the BSE crisis did not arise until March and was nothing to do with the applicant's termination of employment."
They say, with regard to telephone calls,
"We prefer the evidence of Mr Mark Burton that the discussion was principally about family matters and was not as the applicant alleged to us, telephone calls asking when his layoff would end."
Mr Burton, who appears today, has criticised all these findings and said that they represent a failure to understand the evidence properly, to listen properly to the evidence, to believe the right person, that was to say, himself.Although these findings of fact are criticised by the Appellant the fact is that they are all flatly against him. The Tribunal have preferred the evidence of the Respondents. Where there are matters of which the Appellant justly complains, that is to say, that they should be taken into account, they are referred to. The Tribunal is taking them into account and saying: "the letter contained a mistake," they say, that was a finding very much in favour of the Respondents, they also prefer the Respondents' version of what had happened in telephone conversations.They go on to say:
"7. The major question in this case turns on when and how the applicant's employment ended. As has been indicated, we prefer the evidence of the respondents, which shows that the employment ended on 22 December 1995 of the applicant's own choice. It follows that as a result his applications for redundancy and unfair dismissal must fail. His claim for breach of contract also fails because the application is out of time and no reason has been advanced as to why it was not practicable for the application not to have been brought in time."
What we have to say about that is this; we are only allowed by Parliament to consider questions of law, it is only if the Tribunal has made a mistake of law that we can intervene. So far as questions of fact are concerned, the Industrial Tribunal is, as it has been called, the Industrial Jury; they have the sole responsibility for deciding questions of fact. On any view here they were told a story, on both sides, which involved an admission not merely that untruths had been told but that false documents had been produced. They therefore heard oral evidence and having heard the oral evidence they decided in the way that they did. Of course it is possible for us to say, at a safe distance, "we might have reached a different conclusion". It is quite pointless to say that. We have no responsibility for the facts and we have no ability to try the facts, not having heard the evidence. We can only intervene if we can find a point of law.We have heard with care and a measure of anxiety what Mr Adam Burton has told us about the way in which the case went, the evidence which was called and the evidence which he laid before the Tribunal, which he says should have been accepted. We therefore looked, as I say, carefully, to see whether there is any error of law. We cannot find any error of law here. It was a case in which the Tribunal decided the matter on the evidence after two days of hearing and having adjourned the matter because they were anxious about certain evidence which they thought they should receive and in due course did receive.In those circumstances we cannot allow the appeal to proceed for the short reason that we have no jurisdiction to entertain it.