THE ALLEY CAT CAFÉ LIMITED v MRS E DEAN [2000] UKEAT 472_00_2607

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 472_00_2607Case No Appeal No. EAT/472/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE ALLEY CAT CAFÉ LIMITEDAPPELLANTMRS E DEANRESPONDENT
Before
Mr Recorder Brian LangstaffDate 26 July 2000
[1]APPEARANCES For the Appellants MISS JANE SWANN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR RECORDER LANGSTAFF QC : This is a preliminary hearing in a proposed appeal from the London (North) Employment Tribunal. That tribunal promulgated what purported to be extended reasons on the face of them, on 1st March 2000, but latterly clarified the position and provided full and proper extended reasons on 30th May 2000. In the course of those extended reasons, to which reference has been made in the course of this hearing, the tribunal found Miss Dean to have been unfairly dismissed, to have been wrongfully dismissed and concluded that unauthorised deductions had been made from her wages. The proposed appeal is in respect of the unfair dismissal and Miss Swann who appears under the ELAAS scheme and for whose submissions we are grateful, has sought to add a further ground of appeal querying the calculation of compensation. She suggests that the tribunal was wrong to have concluded that there was unfair dismissal in the first place but that if they did they were wrong not to find that the employee had failed properly to mitigate her loss. The facts were these: Miss Dean worked for the appellant from 11th May 1998 until 29th July 1999. She described herself as a sandwich bar assistant. Before us Miss Swann has described her as qualified chef.[2]The issue that arose was whether or not she resigned from that post or whether she was dismissed. That issue arose in these circumstances, as the Employment Tribunal described it in paragraph 6 of their reasons:
"6 On Thursday 29 July 1999 Miss Dean became unwell and telephoned in sick. She attended the doctor on the following Monday and was diagnosed as having tonsillitis. During the course of that day Mr Feldt telephoned Miss Dean and there is a substantial conflict of evidence as to what was said by one party to the other during the course of that conversation. The Applicant's evidence was that she told Mr Feldt that she had been advised by her doctor to stay at home for a couple of days. She told the Tribunal that Mr Feldt said to her "
I wanted to speak to you in person but I can't because you're off sick. I think you should find another job. One where you can have Fridays, Saturdays, Sundays and Mondays off so you only have to work a three day week." …" Mr Feldt disputed that version of the telephone conversation.[3]The tribunal resolved that conflict of evidence by, amongst other things, having regard to what they thought it was likely Miss Dean on the one hand and Mr Feldt on the other, would have done and said to others had the conversation been either as she, on the one hand, or he, on the other, described it. They concluded, in particular, by reliance upon that which Miss Dean was said to have said to her mother and the content of a conversation that Mr Feldt had with an office of the employment agency, that Miss Dean's version of the conversation was to be preferred. Accordingly, the tribunal came to the conclusion at paragraph 21 of their decision as follows:
"21 The first question to be addressed in relation to the complaint of unfair dismissal is whether Miss Dean was dismissed or did she resign. The Tribunal had to apply an objective test. … The Tribunal recalled its findings of fact about the telephone conversation between Mr Feldt and Miss Dean, and asked whether those words constituted unequivocal words of dismissal. The Tribunal found that they did …"
Because no qualifying reason had been given for that dismissal, the tribunal therefore found the dismissal to have been unfair.[4]Before us, Miss Swann has advanced the following criticisms. She has argued that the tribunal was perverse both in that it reached a decision which no reasonable tribunal could have reached and secondly, that there was no evidence to support the conclusion they reached and that material facts were not taken in to account. She points in particular to paragraph 11 of the tribunal's reasons and suggests that it was inappropriate for the tribunal to have relied at all upon the evidence given by Miss Dean's mother. The basis for this submission is that as the mother of the then applicant, her evidence should have been disregarded.[5]We cannot accept that anyone's evidence given on oath can be disregarded because of the family relationship that there may be between one witness and another. An Employment Tribunal is in our view entitled to judge a witness, having regard to the fact of relationship, but there is no automatic rule that such evidence is of no weight and indeed nor do we think that there should be. It seems to us, therefore, that the Employment Tribunal were entitled to have regard to her evidence just as they would have been entitled to disregard her evidence had they thought it right to do so.[6]Miss Swann next argues that in a letter written on 10th March 2000 to the tribunal, and therefore nine days after the decision of the tribunal had first been announced, he complained that Miss Dean had claimed that she was waiting for a phone call from her employer to tell her the shift rota for the following week and argued why should it be that she was waiting for a phone call from her employer when the employer had allegedly already dismissed her several days previously. This, she says, was a matter which the Employment Tribunal failed to take into account.[7]Our conclusions are these. The matter in dispute was one of the 'he said she said' variety as Miss Swann so aptly described it. In a situation such as that where the tribunal has the advantage of hearing both parties to a conversation, it is for the tribunal to draw its own conclusions as to what was said. In the absence of clear material showing that they could not possibly come to one conclusion rather than the other, we in this tribunal cannot interfere with their findings. There is no evidence which compels us to think that the Employment Tribunal were necessarily wrong in the conclusion they drew. Indeed, the whole tenor of the issue that they had to explore was one which is almost uniquely capable of resolution only before a tribunal hearing the evidence, listening to the individuals and exploring the issues on the evidence which is there before them. It seems to us, therefore, there is no arguable point of law which can be pursued in respect of that decision, much as we appreciate the fact that Mr Feldt himself feels aggrieved by the conclusion which the Employment Tribunal reached.[8]The second ground which Miss Swann pursues before us, in respect of which she would seek formally to amend the Notice of Appeal should the matter proceed further, is in respect of the mitigation of loss.[9]The tribunal made an award ultimately of a loss of wages stretching from 3rd August to 31st December 1999, 21 weeks at £150 per week. Miss Dean as a qualified chef in the eyes of Mr Feldt should have found it easy, Miss Swann submits, in Watford, given the seasonal nature of catering and the substantial opportunities available in that field, to have obtained employment sooner than she did. She says that it is obvious that Miss Dean did not make the effort that she should have made to find employment and argues that she made no applications for jobs during the course of September 1999. What the tribunal have concluded in respect of that at paragraph 25 is that indeed she registered with the Jobcentre on 2nd September 1999 and they say she "applied for a number of jobs during September and October." They go on to record that on 7th November she returned to full-time work. She again, as the tribunal record, worked for an agency for a period of three weeks immediately following the dismissal and before her registering with the Jobcentre.[10]We have to bear in mind that the burden of proof in showing that an employee has failed to mitigate her loss following dismissal rests upon the respondent employer. The issues then are for him to raise in the course of evidence and are those for the Employment Tribunal to evaluate. Short of perversity, their evaluation of what it is reasonable or unreasonable for the employee to have done, is for them to make. We cannot see that there is in the matters urged upon us so persuasively by Miss Swann, any evidence from which we might conclude that there was here the necessary perversity. It follows that had this been a ground of appeal, we should have been bound to reject it on that ground. Accordingly, we refuse leave to amend the Notice of Appeal to argue that ground and indicate that had we granted leave we would in any event have dismissed any appeal on that basis or thought, rather, that is unarguable before a full tribunal.[11]It follows that we cannot see our way to granting permission for this case to be argued before a full Employment Appeal Tribunal. The consequence is that the appeal must be dismissed.