MRS G WHITLOCK v MR K T DOBSON [2001] UKEAT 0782_01_1411
[1]APPEARANCES For the Appellant MR ANDREW MAYNARD (Solicitor) Messrs Andrew Maynard & Co Solicitors 6 Gay Street Bath BA1 2PH JUDGE PETER CLARK By an Originating Application presented to the Bristol Employment Tribunal on 11 th August 2000, the Applicant, Mrs Whitlock, complained of unfair dismissal by the Respondent Mr Dobson. By his Notice of Appearance the Respondent denied the dismissal.[2]The case originally came on for a hearing before a Tribunal chaired by Ms Tess Gill on 3 rd November 2000. The Respondent failed to appear. That Tribunal went on to uphold the complaint and awarded the Applicant compensation in the sum of £4861.94 by a decision with Extended Reasons dated 21 st November 2000.[3]The Respondent applied successfully for a review of that decision. The Review Hearing took place before a fresh Tribunal chaired by Mr D M Simpson sitting on 20 th April 2001. This time the Respondent appeared. A different decision, promulgated with Extended Reasons on 16 th May, was reached. The complaint was dismissed, that Tribunal finding that the Applicant had not been dismissed from her employment with the Respondent. Against that decision she now appeals.[4]The evidential conflict is recorded at paragraph 6.5 of the Simpson Tribunal reasons as follows "On 9 th June 2000 the Applicant telephoned the Respondent for the first time since her illness and had a conversation with him in which the only words she was certain was spoken by the Respondent are "parting company". The context of these works was not recalled. The Respondent's recollection of that conversation, which she found astonishing, is that the Applicant told him that she would not be returning to work and proposed to live on benefits and help look after her grandchildren."[5]The Tribunal's conclusion on the issue of dismissal is expressed at paragraph 8 "The issue we have to determine is whether or not there was a dismissal. It is not a question of constructive dismissal but one of actual dismissal, which requires an intention on the part of the Respondent to bring the employment contract to an end. As we have established, the burden of proof in this respect lies with the Applicant. We are not satisfied, on the balance of probabilities, that the Respondent had any intent to being such a contract to an end or otherwise to dismiss the Applicant and the Originating Application, on the grounds of dismissal, must therefore itself be dismissed".[6]The principal point taken by Mr Maynard, on behalf of the Appellant, is that the Tribunal applied the wrong test to determine the question of dismissal. He submits that the matter is not determined by the subjective intentions of the speaker, here Mr Dobson; see Sothern v Franks Charlesly [1981] IRLR 278 and the 6 EAT authorities cited in Harvey Vol I at D1-229. That point, in our view, is arguable.[7]There is, we think, a further point, which we have raised with Mr Maynard, which also appears to require consideration at a full hearing. Although paragraph 6 of the Simpson Tribunal reasons purports to set out the facts as found, there appears to be no finding of the Tribunal on the conflict of evidence as to what was said in the telephone conversation between the Appellant and the Respondent on 9 th June 2000; see paragraph 6.5. It seems to us arguable that this represents a failure by the Tribunal to make a significant finding of fact which is, in itself, an error of law, see Levy v Marrable [1984] ICR 583 .[8]In these circumstances we have granted Mr Maynard's application to lodge a draft amended Notice of Appeal which sets out this further ground only. That draft should be lodged, marked for my attention, within 14 days of today and I will then consider granting permission to amend. In addition we shall list this case for half a day, category C. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged with this Appeal Tribunal at the same time. There appears to be no need for Chairman's Notes of Evidence in this case. There are no further directions.