Scott v Lowe [1998] UKEAT 780_98_0112

EAT
Scott v Lowe
[1998] UKEAT 780_98_0112 · 1998-12-01
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether or not there is an arguable point of law in an appeal which Mrs Scott wishes to make against a decision of an Industrial Tribunal held at Hull. She had complained that her employer, Mr M J Lowe had unfairly dismissed her by reason of an alleged infringement of "a relevant statutory right".The background to the appeal can be shortly stated. The Applicant was employed from 17 March 1996 until her resignation in November 1997. She had been a Practice Manager of the Respondent's business. She was paid a net weekly wage of some £225. There were problems in relation to payments made to her, in that a cheque given on 9 October 1997 was not met on first presentation nor was a cheque dated 6 November so met. As of 12 November 1997, when there was a discussion between the parties, the cheque of 6 November had not been met at least to the extent that it was available to the Applicant in her own bank account. That was, according to the Tribunal's decision, a matter of some importance to her because she was her family's only wage earner.The Tribunal said this:
"There is no clear statement from the Applicant in her written representations that she said anything specific to the Respondent to indicate her concern that she had not been paid in full. However looking at the evidence as a whole, and having regard to the tenor of the conversation, it is inconceivable that the Applicant did not say something that amounted to a complaint that she had not been paid. In our view, it must have been reasonably clear to the Respondent that the Applicant was complaining that she had not received the pay that was properly due to her on the day that it was normally paid to her. However it is equally clear from the evidence that the Respondent did not give any indication to the Applicant, that he was not intending to pay her wages in due course, albeit it was not physically paid at that time. On the contrary, the glaring question we have from the evidence is that rather than denying any entitlement on the part of the Applicant to be paid, the Respondent made it abundantly clear that the Applicant was entitled to be paid and that she would be paid as soon as that was possible.
In the event, she was paid in full within two or three days of that conversation. The principle ground of the Applicant's complaint was not that she had not been paid but that this was the second time on which the Respondent had paid her late, and that if she continued her employment she would always be wondering whether her wage would be paid"Although the Applicant at that meeting did not use specific words of resignation, she indicated to her employer that he should find somebody else to replace her. But the employer did not take that seriously. He thought it was an idle threat. However, the Applicant did not again attend at her work and she wrote asking for her P45, her wages and holiday pay. The Tribunal concluded on balance that the resignation took effect upon the receipt by the employer of the Applicant's letter of 17 November 1997.It was the contention made by Miss Williams on behalf of the Respondent employer, that there was a distinction between the Applicant's statutory right under Section 104 of the Employment Rights Act 1996 and her contractual right to be paid. The point at issue being, that as the Applicant had less than 2 years qualifying service, apart from any Seymour v Smith point, she could only succeed if she could show that she had been dismissed for what used to be called an inadmissable reason, namely asserting a statutory right. It was the Respondent's submission that she had not been dismissed for asserting a statutory right.The Tribunal indicated that they had considered the respective submissions at some length and came to the conclusion that as a matter of law, there could be a constructive dismissal under Section 104 only if the dismissal provision was widely construed in the way they suggested in paragraph 10 of their decision.Having reached the conclusion that there was no incompatibility between Section 104 and the definition of "Dismissal", they then went on to consider whether in the circumstances, Section 104 came into play. They concluded that Section 104 does not protect an employee who suffers an unlawful deduction from wages as such, but only an employee who is dismissed because there has been an allegation of such an unlawful deduction. They went on to say:
"That distinction seems to us be of vital importance on the facts of this case. We have added the words in italics since an employee can only resign in consequence of an employer's actions and we have ruled out the failure to make payment of itself from such consideration, the only possible allowable cause of a resignation must be some specific activity of the employer in consequence of the allegation of infringement. In our view, if there was here some evidence that, on the Applicant complaining of non-payment, the Respondent has said by way of example, "you have not been paid and I have no intention of paying you" or words to that effect, then the Applicant would clearly be entitled to resign her employment and would be entitled to rely upon that statement, both as a reason for the resignation and in support of a claim under Section 104."
Having reviewed the evidence, they then concluded as follows:
"It seems to us that that is not the end of our task. It is for the Tribunal to identify the reason, or if more than one the principal reason for the dismissal. Having considered the written representations as a whole, we have concluded that the principal reason for the resignation was the Applicant's entirely legitimate concern that the Respondent's financial position was such that there was some doubt as to whether she would be promptly and in full on subsequent occasions. She was not prepared to work in those circumstances. That was an entirely understandable attitude for her to take to those circumstances. If the Applicant had been employed by the Respondent for two years, she should have had, in our view, an unanswerable claim against the Respondent for constructive dismissal under Section 98 of the Employment Rights Act 1996.
However the Applicant does not have that 2 year service and in order to claim unfair dismissal, she is required to rely upon Section 104. The onus is on her to show that she comes within Section 104. At the end of the day, the issue is entirely one of fact, i.e. what was the principal reason for the resignation."Having asked that question they then concluded that the reason for the resignation was exactly as they had stated above, and accordingly it did not fall within Section 104. Accordingly, she did not have the requisite period of continuous service to present a complaint of unfair dismissal based upon a constructive dismissal.The Appellant has asked us to deal with this case, as we understand it, on the basis of the written submissions which have been made to us. Essentially, it is her contention that the Tribunal has erred in law in the way in which they have approached their task. In addition, in their letter of 1 December 1998, the Appellant or her representative, namely Mr Scott her husband, complain about the Tribunal itself. He stated that "the suitability and impartiality of the original panel was questioned prior to the review. At the original hearing, I tried to question the truth of the Respondent's evidence under oath. At the review hearing, this evidence was again questioned by Mrs Scott and also verbally by myself.There was ample time for the Respondent to answer the allegations voluntarily or upon instruction by the Panel". He then made a point about "the system", by which I think he means the administration of the Industrial Tribunals and says that from literature readily supplied a qualifying period of 2 years is not relevant in this case. The letter continues:
"The last year has been very stressful for both my wife and myself, further exasperated by false information given out by the Employment Appeal Tribunal office, in particular by the Deputy Registrar, for which I have since received a written unreserved personal apology from the Registrar. This entailed the fourth journey to Hull (22 miles return trip) to obtain the Affidavit which I still had to go elsewhere and pay £5.
I am still receiving totally irrelevant information, particularly about Employment Law appeal advice scheme and attending 1 hour before the listed start. As I am disabled and travelling expenses are not available, I am not able to just jump on a train from Hull to London and return. Instead, I would need to travel by car, necessitating at least one nights' hotel accommodation in London for which costs are not available. This is in spite of a taxi being mentioned several times, but as being disabled, I cannot afford these expenses. Clearly this information is not read or heard and is therefore ignored.I do not expect the result of this appeal to be any different, as this appeal is based on the action of the system, rather than the general law itself as there would appear to be already Regulations that cover this situation irrespective of Seymour v Smith, thus, I will not be surprised if the appeal is dismissed, which will help cover up some of the failings of the system, some of which have already been acknowledged."We have to say that as a matter of law, we do not consider that the Industrial Tribunal's approach to the difficult issue of the relationship between Section 104 and a constructive case can be faltered. It seems to us that the Industrial Tribunal has carefully analysed the position and have come to a correct interpretation of the legal provisions. We arrive at that conclusion, having taken into account the representations made to us in the letter to which I have just referred in particular and to the terms of the Notice of Appeal.It is a matter of regret that Mr Scott, a disabled person, feels unable to come to the Employment Appeal Tribunal because of the timing of our hearings and it is also regrettable that he should assume that the legal process here should be, so to speak, tainted by what the system expects rather than by an application of the law. Even though he has made that submission, I can say on behalf of the Employment Appeal Tribunal that it goes without saying that this Court applies, and only applies the law in accordance with the oath of office which all members of the Employment Appeal Tribunal take, which is to do justice according to law.It seems to us that it was unfair of Mr Scott to suggest that our decision was not going to be taken in accordance with our oath of office. In the circumstances therefore, there being no arguable point of law that we can detect in this Notice of Appeal, we must dismiss the appeal, which we do; there being no justifiable criticism of the Tribunal's conduct of the hearing, having regard to the contents of the Chairman's letter dated 14 October 1998.