Roberts & Anor v Parker [1998] UKEAT 767_98_0110

EAT
Roberts & Anor v Parker
[1998] UKEAT 767_98_0110 · 1998-10-01
MRS JUSTICE SMITH: This is an appeal from the decision of an Industrial Tribunal sitting at Bristol on 25 March 1998 whereby they decided that the Respondent to this appeal Miss K M Parker had been unfairly dismissed by her employers, Mr S J Roberts and Mr G E Kembrey trading as Magic Scissors. They ordered that the Appellants must pay the sum of £595.60 as compensation for unfair dismissal and £150 as having been unlawfully deducted from her wages.Magic Scissors is a hairdressing business. An important dispute before the Tribunal concerned the question of whether Mr Roberts was a sole trader in that business or whether Mr Roberts and Mr Kembrey were partners. Miss Parker worked for Magic Scissors as a trainee hairdresser, first while still a school-girl, but then as a trainee with effect from the 11 September 1995.She was dismissed from that employment on 16 January 1998. The circumstances were these. On 15 January Miss Parker's boyfriend was taken into hospital as an emergency with appendicitis. His sister telephoned Miss Parker at work to tell her of this. Miss Parker asked Mr Roberts if she could go to hospital to see him. Mr Roberts was short handed at the time but said that she could go if she rebooked her appointments for that afternoon for some other day. She did rebook her appointments, mainly for the following day, the Friday and then she left. Mr Roberts asked her to telephone him to let him know what was happening.Miss Parker stayed at the hospital overnight. The Tribunal were later to find that her boyfriend was indeed seriously ill and nearly died. She arranged with her boyfriend's sister that if she had not returned home by 8.30 on the Friday morning, the sister would telephone Magic Scissors and tell her employer that Miss Parker would not be in. The boyfriend's sister did telephone soon after 8.30 and told Mr Roberts that Miss Parker was not coming to work. Mr Roberts was angry. He felt let down. He was short handed and there were a lot of customers who would have to be put off again. When the call was over, Mr Kembrey who had been listening in on an extension dialled 1471 to find the caller's number. He then telephoned the boyfriend's sister. Mr Kembrey was not present at the hearing and did not give evidence about that conversation; nor indeed did the sister. However, Mr Kembrey put in a written statement saying that he told the sister that Miss Parker must come into work and that her failure to do so would mean that she would be given notice. Miss Parker was told that Mr Kembrey had said that if she was not at work by 9.00 am, she need not bother coming back.Mr Roberts told the Tribunal that Mr Kembrey told him about this telephone call saying that he had said that Miss Parker must be at work by 9.00 or ........ He did not finish the sentence and Mr Roberts did not ask what he meant. The Tribunal found on the balance of probabilities that Mr Kembrey did make it clear that if Miss Parker did not come into work by 9.00 am, she was to consider herself as dismissed.Miss Parker returned home at 9.30 am and found out about the telephone conversation. She then telephoned Mr Roberts and there was an angry conversation between them. The Tribunal was satisfied that each misunderstood the other. Miss Parker thought she had been sacked, so she spoke about coming in to collect her money. Mr Roberts was angry and very busy; he did not know exactly what Mr Kembrey had said and he did not realise, the Tribunal found, that Miss Parker believed she had been dismissed. He thought she was being difficult and was throwing up her job. He brought the conversation to a rapid end.The next day, Miss Parker came in to collect the money that was due to her. There was a dispute between her and Mr Roberts as to how much she was owed. That dispute gave rise to her claim for unlawful deduction of wages. Fortunately that dispute had been resolved by the time the Tribunal hearing took place. We need say nothing more about it.The Tribunal concluded that there had not been a resignation as contended by Magic Scissors but that there had been a dismissal. Mr Kembrey had claimed in his statement that what he had said could not be taken as a dismissal, because he had no power to dismiss. However, the Tribunal found that he was a partner in the business. At paragraph 2 of their decision they recorded the fact that Mr Roberts and Mr Kembrey were joint owners of the building in which Magic Scissors operated. The hairdressing salon was downstairs; Mr Kembrey ran a plumbing and building business upstairs. The Tribunal noted that there was a partnership agreement between the two men. Mr Roberts had accepted in evidence that Mr Kembrey was 'a sleeping partner', but said that he did not take an active role in the business and did not take a share of the proceeds. The Tribunal found that Mr Kembrey was sometimes involved in the business. They found that he had discussed pay arrangements with Miss Parker in the past and also that he had interfered quite significantly in the incident with which the Tribunal was concerned. They found that the two men were partners and that they had been properly named as joint Respondents trading as Magic Scissors. They were satisfied therefore that when Mr Kembrey spoke on the telephone to Miss Parker's boyfriend's sister, about what the effect would be of Miss Parker's non-attendance, that had the effect of dismissing her if she failed to attend by 9.00 am. Accordingly, the Tribunal found that there was a dismissal and that it had been unfair. They said that Miss Parker had not been given a chance to explain herself properly and that no reasonable employer would immediately dismiss an employee for taking time off in the circumstances which prevailed in this case. They also considered contributory fault and took the view that because Miss Parker was very young and because her boyfriend was very ill indeed, her conduct should not be described as blameworthy. They assessed compensation in the way in which we have indicated.In the written grounds of appeal before the appeal tribunal, it was sought to reopen a number of factual matters. However, this morning with the benefit of advice from Mr Edwards who appears under the aegis of ELAAS, those grounds were abandoned. It is now contended that the Tribunal's finding that Mr Roberts and Mr Kembrey were partners, was perverse and unsupported by evidence.We have already summarised the evidence on which the finding was based. As we have said, Mr Kembrey did not attend the hearing. It may be that had he done so, a different conclusion would have been reached. We are told that the business accounts and VAT registration documents were not put before the Tribunal. It may be that had that been done, the Tribunal might have reached a different conclusion. The Tribunal heard evidence from Miss Parker that she had on at least one previous occasion spoken with Mr Kembrey about pay. They also heard Mr Roberts. Mr Kembrey put in a letter explaining his inability to attend and saying amongst other things;
"Although I am part owner of the salon and property I have no authorisation to hire or fire staff as is stated in Kerry's [that is Miss Parker's] contract. Kerry should have confronted Mr Roberts about what I had said and not use my words as a dismissal notice.
It is rather strange that at any other time whilst employed she never took any notice of anything I said or suggested, but is now using the opportunity to claim unfair dismissal."It seems to us that there was evidence before the Tribunal (not least evidence from Mr Kembrey's own letter) which entitled them to reach the conclusion that Mr Roberts and Mr Kembrey were partners in the business of Magic Scissors.That being the only issue, we are satisfied that this appeal has no merit and must be dismissed at this preliminary stage.