MR R YASSINE v BRESSINGHAM HOLDINGS LTD T/A EAGLE CREST LTD [1999] UKEAT 900_98_0106

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 900_98_0106Case No Appeal No. EAT/900/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R YASSINEAPPELLANTBRESSINGHAM HOLDINGS LTD T/A EAGLE CREST LTDRESPONDENT
Before
His Honour Judge John Altman Miss A MackieDate 1 June 1999
[1]APPEARANCES For the Appellant MR GARY MORTON (of Counsel) Instructed By: Mr R Quail Messrs Grant Saw & Sons 181-183 Trafalgar Road Greenwich London SE10 9EH For the Respondents NO APPEARANCE OR REPRESENTATION ON BEHALF OF THE RESPONDENT JUDGE ALTMAN: This is an appeal from the Employment Tribunal sitting at London North on 28 April 1998. The Respondents have not appeared. They were represented by the Employment Law Advice Centre, who, whilst the interlocutory steps were being taken on this appeal, acted on behalf of the Respondents. Today's hearing was fixed and notified to the Employment Law Advice Centre who confirmed their proposal to attend whilst they represented the Respondents. We are satisfied therefore, that the Respondents must have known from their representatives of today's hearing. On 29 May 1999, a letter was written and received at the Employment Appeal Tribunal from the Employment Law Advice Centre, pointing out that they had written to the Employment Appeal Tribunal recently, with the information that they no longer represented either Respondent, and that it was their understanding that both companies "will cease to exist in the near future" and directing future correspondence to the registered office of Bressingham Holdings Ltd. No further correspondence was sent out from the Employment Appeal Tribunal to either the Employment Law Advice Centre or to the Respondents. That is partly explained by the fact that there was no occasion for further correspondence to be sent, but it is perhaps a pity that, apprised of that information, a check was not made with the Respondents themselves by way of letter and notification of the hearing.[2]Nonetheless, this morning, a member of the office of the Employment Appeal Tribunal telephoned Bressingham Holdings' registered office to try to make contact, unsuccessfully because reply was by answer phone. In spite of the fact that no notice was sent direct to the Respondents, we are satisfied from what I have already said, that they must have known of today's hearing because it was fixed at a time when they were represented. In those circumstances, we have decided to proceed in their absence.[3]The finding of the Employment Tribunal from which this appeal is made, was as follows:
"The Applicant was not dismissed, and in particular was not dismissed by reason of circumstances connected to health and safety nor by reason of the assertion of a statutory right."
The essential finding was that there was no dismissal. The Appellant contends that the Tribunal erred in law and in effect was perverse in that it "concluded that a letter dated 20 October 1997 from the Respondent to the Appellant showed that the two parties had agreed to the mutual termination of the Appellant's employment with the Respondent and therefore there is no actual dismissal." A dismissal is a contractual act where due notice is given. It seems to us that whether a dismissal has occurred is a mixed question of fact and law to be assessed on the findings of primary facts by an Employment Tribunal.[4]The Appellant was a manager of a restaurant operated by the Respondents. The Originating Application asserted that employment began in April 1996 and ended on 19 October 1997. The Originating Application intimated an allegation of constructive dismissal, but then went on to allege that in October 1997, on the proposed renting out of the restaurant of which the Appellant was the manager, all staff were dismissed. He said that he was offered a position elsewhere but it later appeared to be non-existent and that he did not feel confident in any event about the practices of the Respondents and the risk of his not being harassed. He instanced an incident in July. He also said that he had left in October and had a number of meetings, had not received payslips which reflected his earnings (and from other matters it is clear that what he meant there was that he had received pay slips but they were inaccurate) and that he had not received other accurate documents on leaving.[5]This was interpreted by the Employment Tribunal as a claim alleging dismissal, because the Appellant was pursuing a statutory right, and also in relation to health and safety matters. The Notice of Appearance denied any dismissal said that the employment commenced in December 1996 (November having been crossed out) and the confusion may well have been because that is the date that the Appellant moved to his final premises. There was a dispute as to the amount of a week's pay, the Appellant saying that it was £320 gross and £250 net, the Respondent saying it was £120 and £85 net - although we are at a loss to understand, unless there was a disclosure of extensive tipping for tax purposes how the Respondents alleged difference between gross and net could arise, but there is no evidence about that.[6]There was a preliminary issue for which the case had been listed, which was whether the Appellant was an employee. That was resolved without the need for argument because that was in the end conceded. The decision of the Employment Tribunal was set out and we say at this stage that that decision has now been augmented by a very helpful transcript of the learned Chairman's Notes of Evidence, for which we are particularly indebted.[7]The Employment Tribunal in considering the issue of dismissal, referred to a letter dated 20 October 1997, which lies at the heart of their decision. In paragraph 7 and 8 of their decision they paraphrase that letter. It is important it seems to us to look at the very wording of it. It is dated 20 October 1997, which is the day after the date when, as the parties agreed, the employment ended. Therefore it followed the ending of employment. It is in the following terms:
"In consideration of the payments listed below, Mr Rachid Yassine agrees that he has been paid all monies he considers due to him from the company in respect of his investment at 73 Upper Street, London N1 and at 314 Regent Street, London W1. In acknowledging receipt of these funds, he agrees that he will make no further monetary or employment claims on the company or its Directors and that payment has been made in full, once the following Eagles Crest Limited cheque have been cleared for payment…"
There is then listed a series of payments totalling £11,250 and the letter is signed on behalf of each party.[8]The findings of the Tribunal are set out in three paragraphs in relation to dismissal. In paragraph 9 they say:
"There is no mention there [referring to the letter] of dismissal and it seems to this Tribunal that there was an agreement between the Applicant and the Respondents that he should cease to be an employee. Accordingly we find that there was no actual dismissal."
They return to that matter in paragraph 12 and 13 when they say:
"We note that the letter of 20 October 1997 was signed by the Applicant. In his evidence to us today he says that he only did so after consulting his solicitor. Accordingly we find that the letter of 20 October 1997 is a correct record of the circumstances in which the Applicant ceased working for the Respondents and ended his financial involvement in the two restaurants owned by the Respondents."
[9]It is not wholly clear from the wording of the decision whether or not the Employment Tribunal was relying solely upon that letter, for although the Tribunal's observation that there was no mention in the letter of dismissal and the finding that there was an agreement between the Applicant are contained within the same sentence of their decision, it is not specifically stated that the one is reliant upon the other. However, there is no reference whatsoever in the decision of the Employment Tribunal that to their taking into account any other evidence on that issue. It appears, so far as any factual statement is concerned within the decision, that the only primary facts upon which their assessment as to whether or not there was a dismissal was based, was their finding of the terms of the letter to which we have referred.[10]The Employment Tribunal then went on to consider the merits of whether such termination was a result of health and safety issues or the assertion of a statutory right by the employee. Having preceded their words by saying that it was unnecessary for them to do so, they then say that they "express the view that we do not think that there was any connection between the Applicant's claims concerning health and safety and his demand for wage slips and the termination of his employment." And they then base that upon the proposition that any complaints that had been made had ceased "long before" the date when the agreement was reached and they say that they see no causal connection between the earlier complaints and those being made today.[11]Before finally dealing with the main issue of dismissal, we would only observe that it seems to us that it could not have been practicable for the Employment Tribunal to determine the reasons that lay behind a dismissal, without first determining that there had been a dismissal, because it is only within the context of what actually happens that the Tribunal, it seems to us, could have been able to assess what lay behind it. And therefore, it seems to us, difficult for an Employment Tribunal to determine whether termination was due to matters such as health and safety where there is a determination that there was no dismissal.[12]Sometimes a court or tribunal can say that if they are wrong about "x" then they have gone on to consider "y", but we cannot see in practical terms how that exercise can be accomplished in this case because a necessary factual constituent of deciding the reason for a dismissal is the existence of the dismissal. Furthermore, whilst it is true that the evidence and correspondence demonstrate that it was some time earlier that the main complaints were being made, possibly even in July and June, nonetheless there is a letter written on behalf of the Appellant by his solicitors dated 12 August 1997, listing effectively the very matters which he alleges constituted the reasons for his dismissal. That was only eight weeks before the termination.[13]Furthermore, the termination took place in the context of the Appellant's evidence that the business was to be rented to someone else and it is clear that discussions about that had been going on for several months. It is also the Appellant's case that termination had something to do with transfer of undertakings and the desire of the Respondents to avoid their liability.[14]Those matters had been going on for several months and complaints were being made as recently as eight weeks before. It is not clear from the decision of the Employment Tribunal that they had in fact adverted to the evidence as to the period of time in which the complaints upon which the Appellant relied had in fact been made.[15]We now return to the main issue, which was the finding of dismissal. The Notes of Evidence have been provided to us which demonstrate that on page 2 of those notes, the Appellant said:
"[on] 17 October I had a meeting with Mr Capaldi. I had no choice but to go. I claim that as a dismissal."
And it is pointed out that that meeting must have taken place before the letter and before the ending of employment. He went on in cross examination to say:
"Mac told me he had rented out the Islington premises to a third party. Your services are no longer needed so we will return your investment. Nothing else and I must be out by 19 October. 17 October we agreed return of investment. He wanted an excuse to get rid of me."
And our attention was also drawn to the notes at page 10, where Mr Capaldi for the Respondents in chief said:
"The Applicant refused to cooperate with anyone. The Applicant was a difficult employee. He resisted all change. He claimed as a partner he had equal say. The Applicant refused to leave."
And Mr Morton, rightly in our judgment, points out that that last sentence is consistent with the proposition that there was a dismissal. He later said:
"We did not dismiss Applicant. He approached us to get his investment back."
[16]On the oral evidence before the Employment Tribunal, there was an issue as to whether or not there was a dismissal and facts were set out upon which such a conflict could be seen to be based and requiring adjudication. In order, therefore, to assess the primary facts determining whether or not there was a dismissal, the Employment Tribunal had, it seems to us, to consider not only the wording of the letter, but also the oral evidence before them, before reaching a decision. That is the first basis, it seems to us, upon which this appeal must succeed. The Employment Tribunal did not assess the evidence so far as it had been given orally, as to whether or not there was a dismissal before reaching a decision that there was no dismissal.[17]Furthermore, it seems to us that the Tribunal erred in law in construing the letter to which we have referred as a consensual termination of employment. Had it been the case that there was no other evidence and had it been the case that all that took place before the Appellant left was that there was a discussion about the return of investment evidenced by that document, then that absence of evidence coupled with the terms of that letter could well lead an Employment Tribunal to infer that there had been no dismissal. But looking at the wording of the document itself, we find it impossible to read into that document any decision to terminate mutually. Indeed, the opposite is the case. First, it refers almost entirely to the investment arrangement between the parties, which had nothing to do with the employment in contractual terms. Secondly, there is reference to employment in that the letter purports to exclude any employment claims, the Appellant agreeing that he will make none. If any inference is to be drawn from that as to the intention of the parties, it is that without the Appellant's having agreed to that, he may well have had a claim in an Employment Tribunal. If anything is implicit in the letter, it must be, it seems to us, the possibility of dismissal, rather than the impossibility of dismissal. Incidentally, of course, that letter cannot be effective to exclude a right to claim in the Employment Tribunal. We find that that letter as a matter of law, cannot support a finding of consensual termination without more evidence, either of a positive or a negative kind.[18]In those circumstances, we have come to the conclusion that the Tribunal erred in coming to the judgment there was no dismissal on the basis of the letter of 20 October 1997. We are unable to come to a judgment about that because there have not been the necessary findings of primary facts to enable us to do so and, therefore, we are driven to conclude that having allowed this appeal, the only way that we can deal with it, is to remit it to a differently constituted Employment Tribunal to be reheard.[19]However, in view of the fact that we have been notified this morning that there may be some questions as to the current status of the Respondent, and, in some circumstances therefore, as to even the jurisdiction of an Employment Tribunal to proceed, we direct that upon this matter being remitted to the Employment Tribunal it should not be relisted unless within 28 days of the promulgation of this judgment the Appellant notifies the Employment Tribunal in writing that he has sufficiently investigated the status of the Respondents and does now wish to continue with his application. In the absence of such letter, we would invite the Employment Tribunal to infer that the application is thereupon withdrawn.