MR M ALI T/A PAPWORTH HOTEL v MRS L LEADBEATER [2000] UKEAT 609_00_2310

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 609_00_2310Case No Appeal No. EAT/609/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M ALI T/A PAPWORTH HOTELAPPELLANTMRS L LEADBEATERRESPONDENT
Before
His Honour Judge J R ReidDate 23 October 2000
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON JUDGE REID QC : This is an appeal by the respondent below, Mr Ali, who trades as the Papworth Hotel against a decision given on 29th March 2000 by the Employment Tribunal sitting at Bury St Edmunds. By that unanimous decision the tribunal held that Mr Ali had constructively unfairly dismissed the applicant, Mrs Leadbeater, and that he had made an unlawful deduction from her pay in that he had failed to pay some holiday pay and the unpaid wages amounted to £194.55. The position was this: Mrs Leadbeater started employment with Mr Ali at the Papworth Hotel at the end of October 1997, originally working a six day week from Monday through to Saturday, from 9 a.m. to 3 p.m., though her hours on a Saturday varied somewhat and sometimes she started a bit earlier, though during the week she invariably started at 9 o'clock or a little bit thereafter. Mrs Leadbeater had told Mr Ali that she could not work before that time because of her childcare commitments.[2]By the end of March 1999 the total number of hours Mrs Leadbeater worked, according to the tribunal's finding, in any week varied. At the beginning of April her hours were reduced to 20 hours per week so that she would work from 9 a.m. to 1 p.m. She accepted that change and in August 1999 she was working 20 hours per week invariably but at that point she had to go off sick when she was admitted to hospital.[3]Mr Ali remained on cordial terms. He visited her in hospital and assured her that her job would be available when she was discharged.[4]On 8th November Mrs Leadbeater telephoned Mr Ali to say that she would be returning to work on 15th November. Unhappily Mr Ali had himself been unwell and during his illness he was assisted by Mr Ahmed. It was Mr Ahmed who was responsible for what thereafter happened. He wrote to her by a letter dated 10th November 1999 saying that the only position that could be offered to her was one with a starting time of 7.30 a.m. or possibly 8 o'clock on occasions. The reason, find the tribunal, that was given in the letter was a need for staff to serve breakfasts and that there was not "enough hours available for us to employ two members of staff".[5]The position that Mr Ali has taken before us is that this letter was Mr Ahmed's doing and that he would have been happy to have her back and that he was not prepared to go along with Mr Ahmed's suggestion that there should be an earlier start to her working day.[6]According to the findings of fact by the tribunal there was at some stage a conversation either before the letter was received or in conversation with Mr Ali beforehand, during which Mrs Leadbeater made it clear that she was unable to work from 7.30 or 8 o'clock and that if this condition were insisted upon she would be unable to work, but Mr Ali refused to reconsider the matter and she therefore wrote a letter of resignation.[7]Mr Ali tells us that this is misunderstanding and that after he received her letter of resignation he had tried to get hold of her both on the telephone and by visiting her to tell her that she could indeed work the hours that she had previously worked.[8]The findings of fact of the tribunal were that Mr Ali knew that Mrs Leadbeater could not work before 9 o'clock and that it was a term of her employment that she would not be required to work until then; that there was a unilateral decision to change her hours made on about 10th November 1999 and that the attempt to change the hours amounted to a breach of a fundamental term of the contract which entitled her to send her letter of resignation.[9]Mr Ali is particularly incensed by a sentence paragraph 5 of the reasons in these terms "It was suggested, with some force, that in effect that decision was made [ i.e., not to change her hours back to 9 o'clock ] cynically by Mr Ali so that Mrs Leadbeater would feel that she had no option but to leave. " That sentence does not indicate a finding by the tribunal, that is simply the recording of a submission.[10]Mr Ali stressed before us, and we entirely accept, that he felt throughout that he was acting honestly and that he had no intention of acting cynically so as to make Mrs Leadbeater leave and of course we are able to accept that.[11]The problem so far as this appeal is concerned, is that those findings that I have recited together with the findings as to non-payment of holiday pay and statutory sickness pay, are all findings of fact. There is no indication anywhere in the decision of any error in law.[12]The grounds of appeal which have been put before us by Mr Ali are as follows:
"The grounds upon which this appeal is brought are that the employment tribunal erred in law in that:- (1) The evidence that Mrs Leadbeater falsified time sheets and claimed wages for more hours that she worked, was ignored by the tribunal and this was not mentioned as reflected in the decision. (2) The request Mrs Leadbeater to work new hours were sent without my knowledge. (3) Mrs Leadbeater has already received her holiday pay when she left the job last time."
[13]None of those seem to us to show any point of law; and as Mr Ali must appreciate we cannot, in general terms, deal with appeals made simply on findings of fact.[14]As far as the first point is concerned there was no suggestion in the response to the claim by Mrs Leadbeater that she had been guilty of any falsification of timesheets. Mr Ali says that Mrs Leadbeater and the CAB representative who represented her below agreed to this outside the tribunal, but he did not suggest that the matter had ever been put in evidence before the tribunal. Given that it was not in evidence before the tribunal and given that in any event it was not a matter which was an issue in the case as pleaded, it is not surprising it was not dealt with by the tribunal.[15]As to the second point, he says that Mrs Leadbeater's request to work new hours was sent without his knowledge. That may be so: it is his ill-fortune that he was unwell at the time when Mrs Leadbeater wanted to come back to work, but it was with his authority that Mr Ahmed, who was his manager, sent the letter offering her, and offering her only, hours of work which were different to those for which she was contracted.[16]The third ground, that she had already received her holiday pay when she left the job last time, raises a straight issue of fact which was determined by the tribunal and unhappily for Mr Ali was determined against him.[17]We entirely accept that Mr Ali is very unhappy with the findings of fact. We also entirely accept that the problems that arose in this particular case appear to have arisen owing to Mr Ali's ill health and the fact that it was a Mr Ahmed who was in control at the time when Mrs Leadbeater was put in a position where she was constructively dismissed. But we take the view that there is no basis upon which this tribunal could properly interfere. There is no point of law raised and the appeal must therefore be dismissed. It is not one which should go to a full hearing.