MR D J BAINES v ON LINE FINANCE LTD [2001] UKEAT 0123_01_1506

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0123_01_1506

Case No Appeal No. EAT/0123/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR D J BAINESAPPELLANT

ON LINE FINANCE LTDRESPONDENT

Before

His Honour Judge J Altman Mr W Morris Mrs D M Palmer

Date 15 June 2001

[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT JUDGE ALTMAN This is an appeal from the decision of the Employment Tribunal sitting at London South on 19 December 2000. On that occasion the Employment Tribunal recorded that the claim of unfair dismissal was dismissed on withdrawal but they went on to find that the Respondents were in breach of contract and they were ordered to pay a sum of money to the Appellant. The Appellant appeals and the matter comes before us by way of preliminary hearing to determine if there is a point of law arguable in full before the Employment Appeal Tribunal.

[2]Essentially, the Appellant complains about the length of time attributed to the failure to follow a proper procedure and it relates to the quantification of damages for breach of contract, for he says that the damages which were awarded because the dismissal took place before a contractual procedure would have been properly completed, and which therefore took account of the length of service that would have then been expended, should have been based on a longer period.

[3]The Appellant has not appeared today but we have dealt with the matter on the very full documentation that there is before us.

[4]The Employment Tribunal in a substantial decision set out their findings of fact. They set out the terms of the contract of employment that existed. They recorded the history of the employment and the deterioration in working relationships and the relationship of the Appellant with specific customers. They recorded the fact that there were a number of meetings between the Appellant and Mr Hutchings on behalf of the Respondents.

[5]They recorded in paragraph 20 as follows:

"On 7 July 2000 there was a short meeting between Mr Hutchings and the (Appellant) when the (Appellant) was told that his employment was terminated on the grounds of poor performance, and that Mr Giannamore (the Managing Director of the Respondent) had decided that he should be dismissed. The dismissal was confirmed in a letter dated 11 July..."

The Employment Tribunal considered the disciplinary procedure and they found that it was a contractually binding procedure.

[6]The Employment Tribunal then went on in paragraph 23 to set out their findings about the course of that procedure as follows:

"We find that the first warning given to the (Appellant) by Mr Hutchings about his performance and the need to improve the figures was in March 2000, and that if the scheme set out in the disciplinary procedure had been followed, then the (Appellant) would have been dismissed, and his notice would have expired, by Friday 11 August 2000."

The Employment Tribunal then set out the submissions and went on in paragraph 25 to set out their conclusions about it. They found in that paragraph that the disciplinary procedure did form part of the Appellant's employment contract.

[7]The Employment Tribunal then went on in paragraph 26 to find that there was a breach of the contractual procedure, in that it was not followed through. They do not find that the conduct complained of should not have been complained of or anything of that kind. They point out that, had the procedure been followed and the employment contract terminated at the later date of 11 August, there would still not have been 1 year's service to found a claim for unfair dismissal.

[8]The Employment Tribunal found that the damages amounted to "…the net pay which the (Appellant) would have received during the period from the date of actual termination of his employment until 11 August 2000, a period of 4 weeks. We conclude that we should not speculate what the effect of the use of the procedure might have been, other than to extend the employment during the carrying out of the procedure." In coming to that conclusion the Employment Tribunal directed themselves to the relevant authorities.

[9]The Notice of Appeal asserts a number of matters. In a letter of 20 December 2000 the Appellant sought to describe the various matters that he would wish to take issue with. The first is that, whilst he complied with the rules of procedure prior to the hearing, the Respondents failed to do so to the extent that, instead of giving advance disclosure of documents to be relied on in time for the Appellant to consider them before the hearing, the Respondents failed to hand him a large number of documents until the very morning of the hearing at 9.30am.

[10]We can understand that the Appellant may have felt put at a disadvantage by that, not least in bringing his own mind to bear upon it, because he had prepared to deal with the allegation of poor performance and not the way in which the case was then being put.

[11]The difficulty which the Appellant faces is that, in advance of the hearing, indeed the day before the hearing, he had received communicated to him, through ACAS, an offer of £6,000 by way of out of court settlement and he had declined it. He says that if he had known of the documents in advance he would have accepted it. That may, in truth, be a correct statement of fact but it does not, it seems to us, provide a basis in law for criticising the decision of the Tribunal.

[12]Indeed, whilst there was not much time for him to consider it, there was an opportunity before the Employment Tribunal went ahead, for him to explore once again the offer that he had rejected the day before. But whether or not an Applicant accepts or rejects an offer of settlement made before the hearing is not a matter with which the Employment Tribunal is concerned or can be said to have erred in law in failing to consider, even if they knew about it, which we doubt.

[13]Where the Employment Tribunal are criticised, of course, is in permitting the hearing to continue with this late delivery of documents. But again, the Employment Tribunal could only go on the evidence before them. Generally speaking, Tribunals do not take technical points and so long as a party has an opportunity to consider documents presented at the last minute, even if it may appear to be that it is a device adopted by Respondents by way of an ambush, the Tribunal will generally seek to do its best and proceed with the hearing.

[14]The issue as to how to proceed and whether or not to proceed is a matter of procedure and the rules clearly establish that the Tribunal has the control of its procedure to act justly. There is no evidence before us that they acted in any way that could be described as that of a Tribunal acting in a way which no other reasonable Tribunal could have acted in proceeding, even though there was the late delivery to the Appellant of these documents.

[15]At the outset of the hearing the Employment Tribunal referred to the documents which were mentioned and accordingly we find that in proceeding with the hearing against the background of those documents the Tribunal did not commit any error of law. However, the real problem that the Appellant now recognises he faces is not, it seems to us, anything that the Tribunal did, but the way in which he himself may not have been in a position to properly consider the offer made because he says he did not have the relevant documents.

[16]The proceedings of ACAS and the negotiations for settlement are not in any way the concern of the Employment Tribunal and therefore we do not look at any error of law in the Employment Tribunal relating to it. Indeed, it is the very essence of the legislation relating to dismissal and applications to Tribunals that the operations of ACAS are wholly independent of the operation of the Employment Tribunal.

[17]ACAS must be left free to negotiate as best they can in the interests of the parties and on the other hand, and equally importantly, Employment Tribunals must be free to act impartially and detachedly on the evidence before them without being influenced or affected by the facts of any negotiations through ACAS that may have gone on before. Their functions are wholly different and accordingly we conclude that there is no ground of law in relation to the documents to justify an appeal in this case.

[18]The Appellant then complains, essentially about the fact as found, as to the length that the procedure would have taken. The Notice of Appeal complains that the Tribunal seemed to accept that a formal meeting took place in March 2000. The Appellant points out that, whilst the meeting took place, he disputed that it was a formal warning and he puts forward the facts upon which he based his decision.

[19]He also considers that it is relevant to consider what he describes as the nonsensical statement from the Respondent, that "If he had given the Appellant any formal warnings about his attitude then he would have entrenched himself," and he questions the suggestion that the Respondents, through Mr Hutchings, had never before used the disciplinary procedure and he would prayed in aid the position of fellow employees if they had felt able to come forward without the inhibitions of their employment and what he believes their fear to have been.

[20]In addition to the question of whether the meeting in March was formal or informal, the Appellant complains that the Tribunal allowed Mr Hutchings the opportunity to decide as to how long he would then have allowed the Appellant to have put things right.

[21]He continues in the Notice of Appeal:

"This took me up to Friday 11 August 2000 ….. this being only 17 days short of 12 month's continuous service. Surely if the Tribunal had ruled in my favour re: breach of contract and the procedures therein, then I should have had formal warnings placed on my personnel record, and then been given formal written warnings and time to put things right. The real problem here was that I had absolutely NO CHANCE of putting things right owing to the situation I was placed in. This still doesn't answer the question, that if I won the case for breach of contract, why was the Respondent allowed to get away with NOT following the correct procedure as set down in the company handbook, which it was agreed, formed part of my contract of employment?"

[22]It seems to us that the Appellant is complaining that the Tribunal accepted the evidence of the Respondent. He puts forward reasons and arguments as to why their evidence should have been rejected and those arguments put forward before a Tribunal may well have been telling arguments but they all go to the issue as to the arguments based on evidence which the Employment Tribunal accepted on the one hand and rejected on the other.

[23]The acceptance and rejection of evidence is a matter within the discretion of the Tribunal and whilst the Appellant disagrees that they preferred the evidence of the Respondent to his evidence we can see no arguable error of law in their choosing to do so. Understandably the Appellant considers that his arguments should have carried more weight but it is simply a question of weight. He says that he should have been awarded 4 months salary instead of 4 weeks for had he been given proper opportunities to improve and the matter had been carried out along the sort of timescale that should properly have been envisaged, he would have been in employment for longer.

[24]He states, and we can understand that he feels very strongly about the case, that in the background is a lot of conduct which is, he would say, to put it euphemistically, most undesirable on the part of an employer, but those are all matters which could have been canvassed before the Employment Tribunal. The fact that witnesses were not able to give evidence before the Tribunal does not form any basis for criticising the Tribunal who could only act upon the information before them. Again there seems to have been no error of law, therefore, in the Tribunal's continuing without such evidence.

[25]Accordingly, whilst we acknowledge that the Appellant still has many grievances which he feels have been unresolved, we are driven to the conclusion that he cannot explore them by way of appeal because they do not raise any arguable error of law. Accordingly his appeal falls to be dismissed at this preliminary stage.