MS M WONG v DR K M YASIN T/A BRENTFORD FAMILY PRACTICE [1999] UKEAT 264_99_1110

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 264_99_1110Case No Appeal No. EAT/264/99 & EAT/601/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS M WONGAPPELLANTDR K M YASIN T/A BRENTFORD FAMILY PRACTICERESPONDENT
Before
His Honour Judge J HicksDate 11 October 1999
[1]APPEARANCES For the Appellant IN PERSON JUDGE HICKS: The Appellant, Ms Wong was employed as a receptionist by the Respondent, Dr Yasin, who was a doctor in general practice, for a short period from 27 April 1998 till 12 June 1998, when she was dismissed. Her complaints were first that the dismissal was unfair, because it was a dismissal on the ground that she had asserted her statutory rights, her statutory right for present purposes being a right to the pay to which she was entitled, and secondly of unlawful deduction of wages for overtime. The dispute before the Tribunal turned on the terms on which she had been engaged as to pay, her case before the Tribunal being that she was entitled to pay on the Whitley Council Scale 3 of £5.79 per hour. The facts as found by the Tribunal were that she had received a letter of offer, after interview, of 22 April 1998 offering her employment at 16 hours per week at £5.64 per hour with a six month probation. In that letter the Whitley Council Scales were not mentioned, although the Whitley Council Scales had been mentioned in the interview without apparently any figure being put on them. On 23 April, presumably on the same date as the letter arrived, because the letter apparently was posted not faxed, Dr Yasin, as the Tribunal found, left a telephone message on Ms Wong's answering machine saying that there was a typing error in the letter: £5.64 should be £5.34.[2]On 27 April 1998 Ms Wong commenced work and two important facts were found by the Tribunal about what happened on that day. The first is that she had a short meeting with Dr Yasin when he confirmed to her that there had been an error in the letter and that the hourly rate should be £5.34, and secondly that on that day she told the senior receptionist, Mrs Wise, that her pay had been reduced by 30 pence. On 30 April 1998, as the Tribunal found, she was handed a letter signed by the practice manager confirming that there had been an error in the hourly rate offered in the letter and that the rate should read £5.34 per hour.[3]Ms Wong alleged before the Tribunal that she had written and delivered to Dr Yasin two letters. One was on 1 May stating that she did not accept the reduced hourly rate and now found that the Council Scales started at £5.79 per hour and that she expected that rate of pay. The second letter, she said, was on 1 June when she received her pay statement showing her rate at £5.34 per hour, and when she says that she wrote again saying that she expected to be paid at £5.79 per hour and asking for payment within 14 days or she would commence court action. The receipt of both of those letters was denied by Dr Yasin.[4]There was then a meeting between Ms Wong and Dr Yasin and his then partner, Dr Karthi, on 6 June 1998, and there was a dispute as to whether pay only was the matter of discussion or whether there was a general discussion of Ms Wong's grievances, including pay, but also extending to other matters, including hours. She was then dismissed on 12 June and on 23 June a letter was written on her behalf by the Paddington Law Centre which alleges that she had not agreed to the reduction from £5.64 to £5.34 per hour, the significance of that being of course that the demand at that point and in that letter was for the extra 30 pence, not for the full £5.79.[5]As the Tribunal rightly say, after summarising the submissions on both sides, there was a clear and considerable conflict of evidence between the Applicant and the Respondent and the case turned on which version of events the Tribunal found to be correct. And they say:
"This in turn depends upon whether the Applicant did hand to the Respondent the letters of 1 May and 1 June and whether the meeting on 6 June was principally as to the Applicant's complaint about not being paid the correct rate of pay."
The Tribunal then reviewed the sequence of events and referred to various matters which in our view, and we do not understand Ms Wong to contend to the contrary, were relevant matters which they were entitled to take into account in reaching a conclusion. The end result is expressed in paragraph 16 of their reasons, where they say:
"For these various reasons the tribunal does not find the Applicant's evidence credible and rejects the Applicant's evidence that she gave to the Respondent the letters on the 1 May and 1 June. The tribunal also rejects her evidence that at the meeting on the 6 June she alleged that her pay was incorrect. The Tribunal finds she referred to her pay being less than a receptionist in another medical practice."
Then in paragraph 17:
"The Tribunal is satisfied that the Applicant's rate of pay was £5.34 per hour. Before she commenced work she agreed to that rate of pay and she was paid that amount. Accordingly, the tribunal finds the Applicant's claim that she was underpaid is not well-founded."
[6]Ms Wong submits that that conclusion is wrong in law but we are afraid that many of the arguments that she advanced in support of that submission really do no more than submit that the Tribunal should have come to a different conclusion on the facts. We are not entitled to intervene on that basis. We have no jurisdiction unless there is an error in law and we therefore confine ourselves to the matters which could possibly have been advanced as matters of law and ask ourselves whether any of them is arguable so as to go forward to a full hearing.[7]The first point of that kind that Ms Wong makes is that in the Respondent's Notice of Appearance answering her claim there is at the beginning of paragraph 3 what amounts to an argument about what Grade 3 on the Whitely Scale amounts to, and the submission is that the minimum rate of pay on that scale is £4.94 per hour, not £5.79 as claimed by the Applicant. The point, as we understand it, is that by that submission the Respondent was joining issue with the rates of pay on the Whitley Scale, not contending that the Whitley Council Scale had no relevance or that what really mattered was the initial agreement between the parties. But after that passage the Appearance goes on:
"It is further disputed that it was ever agreed between the parties that she would receive the maximum rate of pay as a newly employed receptionist and was in fact commenced and paid at the rate of £5.34."
[8]That is not very good English, but there is a plain alternative case being made there, as it seems to us, that there was a contract to begin at the rate of £5.34 per hour, and plainly the matter was conducted before the Tribunal on the basis that that was the primary issue of fact between the parties and the Tribunal reached its decision on it. We see no error of law on the part of the Tribunal therefore in dealing with the matter on that basis.[9]Next, Ms Wong says that she gave evidence that she telephoned on receipt of the letter of 22 April 1998 accepting the offer of £5.64 and that that was before the arrival of the correcting message, which in any event she had told the Tribunal she never received. It is true that the Tribunal do not refer to her evidence about that telephone call accepting the offer, but it has to be remembered that the case she was pursuing before the Tribunal was not based on a contract of £5.64 per hour, but on an entitlement of £5.79 per hour, and indeed the Tribunal, as it was entitled to, took into account as discrediting her evidence and her case that as late as 23 June 1998 the Paddington Law Centre on her behalf was putting forward the £5.64 figure. Therefore further evidence in support of the £5.64 figure was to say the least a two-edged sword as far as Ms Wong was concerned in a situation where she was saying it was not £5.34 or £5.64, it was £5.79 to which she was entitled and had always been entitled, and that she had written letters on 1 May and 1 June saying so, which on their assessment of the evidence the Tribunal found that she had not done. We do not therefore consider that the failure to refer to her evidence about a telephone call on 23 April shows any error of law in the approach of the Tribunal.[10]The only other matter which it seems to us could go beyond pure matters of fact and potentially amount to an arguable point of law is that in paragraph 15 of their reasons the Tribunal, in dealing with the meeting of 6 June 1998, say that the evidence of Dr Karthi, Dr Yasin's former partner, as a witness on behalf of the Applicant confirms the Respondent's version of the events 6 June and contradicts the evidence of the Applicant. We have been shown three letters which Dr Karthi wrote, one on 22 June to Ms Wong and two on 8 October to Paddington Law Centre. It is perfectly true, as Ms Wong points out, that on the issue whether the original agreement was £5.79 per hour or £5.34 per hour Dr Karthi supports Ms Wong. It is also clear from those letters that Dr Karthi is hostile to Dr Yasin, because he contends that Dr Yasin unilaterally dissolved the partnership without reasonable notice on 9 June 1998 and refused Dr Karthi access to facilities.[11]The point at which Dr Karthi deals with the meeting of 6 June, which is where the Tribunal come to the conclusion that he supports the Respondent's version of events, is very brief. He deals with the meeting on 6 June and makes points such as that there were no minutes and so on and so forth, but as to the substance of the meeting he simply says this:
"The meeting on Saturday 6 June was to discuss the progress and hear any grievances Ms Manna Wong may have."
And he also makes the point, which is not as we understand it in dispute anyway, that it was not a disciplinary meeting. So the Tribunal clearly have read his reference to discussing progress and hearing any grievance Ms Manna Wong may have as tending to support the evidence of Dr Yasin that the meeting was of a more general nature and not that of Ms Wong, whose case was that it was solely concerned with her complaint about pay. In so far as it supports Dr Yasin it can only be very slight support, but then equally we have to take into account that it is only one of several matters, many of them unarguably more cogent, that the Tribunal took into account in deciding who was telling the truth about this history and, in particular, about the authenticity of the alleged letters of 1 May and 1 June. We do not consider that in that reference the Tribunal erred in law so as to invalidate the conclusion which it reached on the whole of the evidence about the crucial dispute of fact between Ms Wong and Dr Yasin.[12]For those reasons, and without of course expressing any view as to what conclusion we or another Tribunal might have reached on the facts, we have come to the conclusion that we have to say that no arguable error of law is disclosed which would justify sending this appeal forward to a full hearing and it must be dismissed.[13]There is a second appeal by Ms Wong against an award of costs made by the Tribunal. It was an award of £100 and it was made under Rule 12 (1) of the Employment Tribunal Rules of Procedure 1993, which provides that where in the opinion of the Tribunal a party has in bringing or conducting the proceedings acted frivolously, vexatiously, abusively, disruptively or otherwise unreasonably, the Tribunal may make an order containing an award against that party in respect of costs incurred by another party. The Tribunal's ground for finding that Ms Wong's conduct fell within 12 (1) was essentially its finding of fact in the substantive reasons that the letters of 1 May and 1 June on which she relied were, as they put it in the costs decision, "not authentic as they did not exist as at 23 June 1998". That of course goes well beyond a finding simply that the Applicant had failed in her application, which is not and was not, we accept, supposed by the Tribunal to be of itself any ground for awarding costs.[14]We cannot say that putting forward false documents as the Tribunal found them to be cannot be a ground of conduct falling within 12 (1) and we therefore cannot say that the Tribunal erred in law in concluding that they had jurisdiction to make an award of costs. Once they had jurisdiction it was, as they rightly noted, a matter of discretion whether to do so and, if so, in what amount. They had evidence which they plainly took into account, on the one hand that the Respondent's summary of costs amounted to something over £1,300, although the Respondent was limiting, as it had to, its claim to the Tribunal's limited jurisdiction of £500.[15]It also plainly took into account on the other hand, because it refers to it at some length, Ms Wong's lack of means and therefore the potential hardship to her of any order, and in those circumstances it made an award of £100, plainly only a small proportion of the costs incurred by the Respondent and not a very large proportion even of the limit of £500. We find it impossible to say that the Tribunal in exercising that discretion, with which it is not for us to interfere unless they again erred in law in the matters they took into account, did err in law. It is of course true and could have been and may have been submitted by Ms Wong before the Tribunal that even apart from the letters of 1 May and 1 June there were issues which it is highly likely the Tribunal would have had to consider in any case, and which might well have been resolved without any conclusion that Ms Wong had been concerned in unreasonable conduct within the meaning of Rule 12 (1). That may indeed be one of the reasons for the low level of the award actually made. What is clear is that one of the principal reasons for the low level of the award was Ms Wong's lack of means, which she has again urged on us, but at that point one is clearly well within the limits of the discretionary powers of the Employment Tribunal and not in an area where we have any authority or jurisdiction to intervene. We therefore have to reject that appeal also.