GAENOR CASHMAN T/A CASHMANS v MR N BARR [2001] UKEAT 0262_01_3007

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0262_01_3007Case No Appeal No. EAT/0262/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
GAENOR CASHMAN T/A CASHMANSAPPELLANTMR N BARRRESPONDENT
Before
Mr Justice Douglas Brown Mrs D M Palmer Mr R SandersonDate 30 July 2001
[1]APPEARANCES For the Appellant MR N BOOTH (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE DOUGLAS BROWN The appeal is from a decision of the Employment Tribunal at Bristol, the Chairman sitting alone (Mr C G Toomer). The extended reasons were sent on 20 November 2000 and the decision of the Chairman was that the Respondent, Mr Barr, should receive £3,368.02 as unlawful deduction from wages, and £1,183.24 as damages for breach of contract.[2]The Appellant, Mrs Gaenor Cashman carries on practice, as far as we can see, as a sole practitioner in a solicitors firm called Cashmans in Bristol.[3]Central to the matters decided below were the events of 12 June 2000 when Mr Barr returned from a short holiday. His case before the Tribunal was that he discovered that his salary for May had not been paid and on challenging Mrs Cashman as to this he was told that it would not be paid because of various complaints she had of his conduct as a solicitor in the firm. It is not necessary for the purposes of today to refer to that in any detail.[4]There clearly was an issue as to what happened on 12 June before the Chairman because he refers to the evidence being in dispute but exactly the nature of the dispute the Chairman did not particularise, save that he did say that he preferred the account of Mr Barr to that of Mrs Cashman. He held that as a matter of law, because he was not an hourly-paid employee, he was entitled to be repaid his salary in full. He rejected various reasons put forward by Mrs Cashman for not paying him in full.[5]The other part of the claim, the repudiatory breach of contract did not fall directly within the only point which is now taken on this appeal by Mr Booth, who appears on behalf of the Appellant by virtue of the good offices of the Employment Law Appeal Advisory Service.[6]The grounds of appeal settled by Mrs Cashman herself do not mention the only point which Mr Booth now presses upon us as justifying this matter proceeding to a full hearing. Neither does the skeleton argument, written by Mrs Cashman herself and running to some four or five pages, prepared for this preliminary hearing today. Those points were specifically abandoned by Mr Booth at the outset of his submissions to us.[7]What he submitted was that there was an error of law in that the Chairman had wholly failed to refer to relevant evidence of Mrs Cashman in relation to the events of 12 June. More than that the evidence had some substance to it because it was supported by contemporaneous correspondence in the shape of a copy letter to Mr Barr written on 13 June by Mrs Cashman.[8]That is not referred to in the extended reasons. The best that Mrs Cashman can do is to say that, so far as she recalls, this letter was before the Tribunal. Having regard to its contents it would be remarkable if it was not put before the Chairman. It is a long letter and we need not refer to all of it but the second paragraph reads this way:
"Yesterday morning when I attended the office I made it abundantly clear that I wished to discuss everything with you and at no time did I state that I was not going to honour my firm's obligations. What I did state was that the bank overdraft had been frozen because you had left a note on my chair suspending yourself from operation and in accordance with the Solicitors Account Rules I had no alternative but to notify the Bank."
[9]It is not necessary to refer to any of the allegations that Mrs Cashman makes in the remainder of the letter and the only other sentence we would refer to is this:
"As you are aware, I am not responsible for the calculation of salaries and this will have to be done by Steve Harris when he next attends the office."
[10]So it is clear from that letter, if it was before the Chairman, that Mrs Cashman was saying to the Tribunal and Mr Booth tells us on instructions that her evidence confirmed what is said in that letter; that she had not indicated that she was not going to pay and he left the office suddenly without accepting any tender of payment, which she says she made.[11]This is a very surprising piece of evidence to be left out of extended reasons on a crucial issue of fact and we are going to permit this appeal to go forward so that the full hearing of this Appeal Tribunal can look at that evidential question, which we think is a fundamental question, and if Mr Booth's submissions are right, arguably could justify the decision being overturned and a rehearing ordered.[12]We say arguably because at this stage we can say no more than that. The notes of evidence will have to be obtained and we are going to direct a copy of the letter of 13 June be sent to the Chairman for him to confirm or otherwise whether that letter was in fact put before him.[13]The second part of the claim has not been argued before us as being something which gives rise to any arguable ground of appeal. But before we deal finally with that I just seek Mr Booth's confirmation that that is so. (Counsel made submissions).[14]To complete this judgment Mr Booth is right that both these heads of claim should be considered together because the evidence on one must effect the other. And so this matter will go forward for a full hearing inter partes. We direct that the notes of evidence of Mrs Cashman and Mr Barr be obtained. We have already in the judgment said that we will ask the Chairman on seeing a copy of this letter to say whether he recollects it being part of the documentary evidence in the case. Listing Category C, estimate half a day.