MR D INDRAN v SUNSET TRAVEL LTD [2001] UKEAT 0520_01_1709

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0520_01_1709Case No Appeal No. EAT/0520/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D INDRANAPPELLANTSUNSET TRAVEL LTDRESPONDENT
Before
Mr Recorder LangstaffLord Gladwin of CleeDate 17 September 2001
[1]APPEARANCES For the Appellant MISS SUSAN BELGRAVE (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR RECORDER LANGSTAFF QC This is a Preliminary Hearing in an Appeal from the Employment Tribunal at London South. In Extended Reasons promulgated on 15 February 2001 the Employment Tribunal held that it had no jurisdiction to consider the Appellant's complaint of unfair dismissal. That was because he had first been employed by the Respondent on 6 March 2000 and he was found to have been dismissed on 21 July 2000.[2]He asked for a review of the decision which was announced on the last day of the Tribunal hearing, 5 February. The decision on that review rejecting the substance of it was also promulgated on 15 February.[3]The Appellant's case that the Tribunal had jurisdiction that he had been dismissed for one of two particular reasons or indeed for both. Those reasons were first, that he had asserted a statutory right. The right that he asserted was first to a written statement of the terms of his employment and secondly to an itemised payslip. Secondly, he said that he had made a protected disclosure and the provisions of the Employment Rights Act inserted by the Public Interest Disclosure Act operated so as to give him a right to complain about his dismissal.[4]The Employment Tribunal found that indeed the Appellant had asked for a contract of employment and indeed he had on occasions asked for payslips. But it also found that there had been disagreements between the Appellant and other staff, that the Appellant had been spoken to about the use of his computer for his personal affairs, that he got on badly with other staff, that he was un-co-operative and that he caused problems within the office. It held that he was dismissed for those reasons - that is for conduct and attitude - primarily and not for having asserted a statutory right. The Tribunal set out the law accurately, in our view, in paragraphs 5, 6 and 7 of its decision. The essential question which remained was whether or not the assertion of a statutory right had been the reason and here I quote from Section 104 sub Section 1 of the Employment Rights Act 1996:
"(or, if more than one, the principal reason) for his dismissal"
So far as the protected disclosure is concerned the Employment Tribunal found that he did not make such a disclosure until after his dismissal in a letter dated 2 August. It followed that his making the allegations in that letter however true or false they may have been could not have been a reason for his dismissal which preceded it.[5]The Appellant has argued in his application for a review that the decision which the Employment Tribunal came to was taken with a total absence of evidence to support it. However, that must be an over statement because the Employment Tribunal heard both from him (and he was cross-examined) and from the managing director of the Respondent, and he too was cross-examined. The Tribunal state this in the decision for rejecting the application for a review. It is the Tribunal's privilege to decide which of two witnesses giving contrary evidence they prefer, which evidence they accept and which evidence they reject.[6]The argument taken before us today is that the Tribunal were nonetheless in error in accepting the evidence given by the Respondent's managing director. Miss Belgrave who appears under the ELAAS Scheme and for whose submissions we are very grateful has argued first that the decision was perverse because anyone could see that here the Respondent had come to the Tribunal alleging that there had been a mutual, agreed, termination. In fact there was a dismissal. Thus the basis for the Respondent's case disappeared at the Tribunal.[7]She tells us and indeed it is consistent with Mr Indran's complaint when he applied for a review that the first he understood that conduct by him was the cause of his being dismissed, was when it was alleged at the Tribunal. It may be, she said, that having rejected the main argument raised by the Respondent, that the Employment Tribunal would see that the issues in respect of his conduct which were then raised were pure fabrication: a last-ditch attempt to persuade the Tribunal against what he thought would be the inevitable finding.[8]Accordingly, it appears (as he put in his own words in his Skeleton Argument) he did not comment on most of the allegations as he could not relate to them, since they were and remained untrue and had been fabricated so as to justify dismissal.[9]Because, said Miss Belgrave, the Appellant was clearly telling the truth because the allegations now raised had not been raised before, because if they had been true they should have formed the basis of some form of internal counselling, warning, disciplinary procedure or the like, and because it was accepted that indeed the Appellant had made himself perhaps awkward by asking for a contract of employment and for itemised payslips, the Tribunal should have found in his favour and not in the Respondent's favour.[10]We have considered this submission carefully. We cannot accept it. The Employment Tribunal heard the witnesses. They were entitled to come to the view which they did upon the evidence which they heard. Although there are a number of very good reasons for suggesting that they might well have come to a different conclusion, we cannot say that they required the Tribunal to come to the opposite conclusion. We cannot say that the conclusion to which the Tribunal came, surprising as that it may have been to Mr Indran, was not actually one which was not open to them. We consider that it was open to them. We cannot see in his Appeal any arguable case which justifies this matter going further forward.[11]That leaves a second submission which Miss Belgrave also made. The Employment Tribunal, she said, failed to make clear what, if any, finding they made as to whether the Appellant had indeed asserted a statutory right. When one couples that with the finding the conduct was the principal reason for his dismissal it may well be that the Tribunal were not properly in a position to consider the inter relationship between his conduct in asserting a statutory right on the one hand and his inter-personal conduct within the office on the other. If, in essence, he was dismissed for making waves (as Miss Belgrave put it) or for being a square peg in a round hole (as others might put it) part of that was, it is suggested, his awkwardness in asking for a contract and for payslips. That might be thought to be indivisible from his conduct in dealing with others within the office. If so, it would be difficult, if not impossible, to decide that conduct of the one sort, that is the inter-personal office conduct, was the principal reason for his dismissal, whereas conduct of the other sort, that is his awkwardness in asserting a statutory right, was not. The Tribunal did not specifically deal with this submission because it did not then have the advantage as we have had of having Miss Belgrave before it. But it did decide at paragraph 10(vii) in these words:
"It is not necessary to decide whether the requests made by the Applicant for a contract of employment amounted to an assertion of a statutory right because Mr Kaumaya's reason for dismissing the Applicant was his conduct and attitude (including the making of requests made for a contract of employment) but that it was his conduct that was the principal reason for the dismissal."
That does not answer the question as to whether by using the word conduct both aspects, one being the assertion of statutory right and the second being his inter-personal behaviour within the office, were included, albeit in different degrees. But the Tribunal went on at paragraph 10(viii) to say this:
"The principal reason for the dismissal of the Applicant was not an assertion of his statutory rights nor the fact that a protected disclosure had been made."
[12]We have had regard to the decision taken as a whole and we see the Tribunal as saying in terms which do not permit reasonably of an argument to the contrary that the principal reason which they accepted for the Appellant's dismissal was his conduct within the office rather than his conduct in making requests for a contract and in making requests for payslips. Again, we are here having to ask not whether we for our part would have reached the same conclusion, but whether this was a conclusion which it was open to the Employment Tribunal to reach. We think that it was. That was the essential question s.104 of the 1996 Act required them to answer. It follows that we can see in this decision no arguable ground for appeal and it must be dismissed.