LIDL UK GMBH v MRS P J DEERING [2001] UKEAT 07_01_0506

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 07_01_0506Case No Appeal No. EAT/07/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LIDL UK GMBHAPPELLANTMRS P J DEERINGRESPONDENT
Before
His Honour Judge J Altman Mrs T A Marsland Mr R N StrakerDate 5 June 2001
[1]APPEARANCES For the Appellants Mr McEwan Solicitor Messrs Latchams Montague Niblett & Co Solicitors 63-67 Stokes Croft Bristol BS1 3QT JUDGE J ALTMAN This is an appeal from the Decision of the Employment Tribunal sitting at Cardiff on 31 October 2000. The Employment Tribunal held that the Respondent had been unfairly dismissed and ordered the Appellant to pay a compensatory award of £3,981.20.[2]The Respondent did not have the length of service to found a claim for unfair dismissal unless she could show an automatically unfair dismissal, which she sought to do on the basis of an alleged breach by the Appellant of the Working Time Regulations 1998, as amended. Tribunals always have to be astute, where an automatic dismissal ground is alleged, to prevent employees simply using it as a device to avoid the time limit requirement based on the length of service needed before an ordinary claim for unfair dismissal can be brought.[3]It is therefore necessary for an Employment Tribunal to examine with some care the reason for dismissal, to establish if it can be shown that it has been automatically unfair. Mr McEwan, on behalf of the Appellants has rightly pointed out that the burden of proof, in order to found jurisdiction in this situation, rests on the employee to show that she was dismissed for an automatically unfair reason, namely the breach by the Appellants of the Working Time Regulations and the essence of this appeal is that the Employment Tribunal misdirected themselves by not asking themselves whether the Respondents had discharged that burden, but rather simply making their own finding.[4]It is rightly said effectively, that if the Employment Tribunal were simply not satisfied that the Appellants had shown that the dismissal was for poor performance, as alleged, that would not of course discharge the burden. So the issue before us is to consider what it was that the Tribunal found.[5]The Respondent began employment with the Appellants on 28 February 2000. She underwent a probationary period; she was dismissed on 18 May 2000. The Appellants said, first of all, that the Working Time Regulations did not apply to this employment because Regulation 20 excluded employees with undetermined working hours, but of course Regulation 20 refers to people with autonomous decision taking powers and allied employees, and clearly did not apply in this situation. This ground was not pursued before the Tribunal.[6]Secondly, the Appellants said that the Respondent was dismissed for poor performance and that this related to her conduct and capability and that therefore she did not have sufficient service to found the jurisdiction of the Employment Tribunal. The Respondent said she was dismissed for non-compliance by the Appellants with the Working Time Directive.[7]In particular, the Respondent relied on Regulation 4 which provides:
"a worker's working time, including overtime in any reference period which is applicable in his case shall not exceed an average of 48 hours for each seven days"
She also relied, as we understand it, more particularly on Regulation 10:
"An adult worker is entitled to a rest period of not less than eleven consecutive hours in each 24-hour period during which he works for his employer"
The finding of the Employment Tribunal was that the Appellants accepted the application of these Regulations and that if the Tribunal found that the Respondent was dismissed because she was complaining about the appropriate rest periods, that would be automatically unfair.[8]The Respondent was a Deputy Store Manager. It appears from the Originating Application, which appears to have been non-controversial in this respect, that she underwent an induction training and then training at the Splott store and the Parc Tawe store and then returned for a period to work at the Splott store. Mr Kennedy, the District Manager, told her she was to transfer then to the Bridgend store; she started there on Monday, 8 May. On the following day, she was told by Mr Griffiths, the Sales Operation Manager, that she was to be dismissed, as indeed she was, with effect from 18 May. It was the Respondent's case that Mr Griffiths had decided on that dismissal before Mr Kennedy had made the transfer and that it was fortuitous that the dismissal came at that time. It was common ground that the Respondent had complained to Mr Kennedy about her excessive working hours.[9]The Employment Tribunal found that Mr Griffiths decided to dismiss the Respondent on her first day at the new store, and it was recorded as common ground between the parties that during the first two weeks of her probationary employment, the Respondent had to work 50-55 hours per week. It was a finding of fact by the Tribunal that Mr Griffiths conceded that the hours of work, done by the Respondent, were excessive.[10]The Employment Tribunal were therefore faced with two competing reasons for dismissal: incapacity, as the Appellants said, or trying to bring well-known regulations to bear within this particular establishment, as the Respondent said.[11]In paragraph 7 of their Decision, the Employment Tribunal set out the submissions of the Respondent, as to the grounds on which he said the Respondent's representative said that the Tribunal should find in her favour. In paragraph 8, they set out the submissions made by Mr McEwan as to why the Tribunal should find in the Appellants' favour. In paragraph 10 the Tribunal then made their finding of fact. They found that the Respondent was automatically unfairly dismissed by the Appellant from her employment because she complained about her appropriate rest periods, contrary to Regulation 32 of the Working Time Regulations 1998. They then set out their reasons for preferring the Respondent's account.[12]First of all, they found contradictions, as they so euphemistically describe them. In the evidence of the Appellants, the two managers disagreed, so it seems, or there was inconsistency as to whether there was reference to the transfer to the store being "a last chance". That of course was critical because the Appellants were arguing for poor performance, therefore that seems central to that point.[13]They then found that Mr Griffiths had decided to look at the Respondent's performance for a week, but then dismissed her after only one day's work. Mr McEwan, in putting forward the appeal, argued that Mr Griffiths had already made his decision to dismiss, before the transfer. But the finding of fact there is clear: what happened, one asks rhetorically, if the Appellants were correct, between the transfer to the Bridgend store with a week of performance to be monitored on the one hand, and dismissal after one day on the other, if the Appellants were to be right in saying that the reason for dismissal related to work performance? Answer comes there none.[14]Secondly, the Tribunal found that there was no doubt whatsoever that the Respondent was working excessive hours. In other words, the Tribunal found that this was not invented. This gave credence to the Respondent's argument.[15]Thirdly, in rather muted terms, the Employment Tribunal effectively said that they disbelieved Mr Griffiths, saying that he did not know about the complaint in relation to the rest periods.[16]Fourthly, the Tribunal recorded what appears to have been, in effect, the disregard of the Appellants of their clear legal obligations and responsibilities under the Regulations, so as to effectively undermine their submission that it was nothing to do with what happened. In other words, the Employment Tribunal were saying not that this issue of working time never arose, but on the other hand, on the contrary, that the Appellants simply ignored it and resented it.[17]Fifthly, the Employment Tribunal found that there were no records whatsoever to support the Appellants' contention of poor performance. There was no record of her being expressly informed of that overall, no formal warning, and nothing done about it. Those are findings of fact which are, it seems to us, unassailable and which clearly undermine the stance being put forward by the Appellants before the Tribunal. An assertion without evidential support clearly lacks substance.[18]Sixthly, they made a finding of fact that the reason for transfer, as the Respondent understood it, was career progression. They then said this:
"a material and relevant occurrence took place. Mrs Deering having worked almost sixteen hours that day, was expected to be back at work at six o'clock the following morning, just eight hours later. Mr Kennedy telephoned her on the Tuesday because she was away sick and she complained to him about her rest periods. Very significantly, what followed was that Mr Griffiths dismissed her on the Thursday, her first day back at work. In the tribunal's view, that sums up the realistic situation between the parties which culminated in her dismissal."
Effectively, the Employment Tribunal were saying that that factual sequence of events must be inconsistent with the Appellants' alleged reason for dismissal, and provides a clear factual basis for the actions of the Appellants being in response to a complaint about hours of work.[19]In other words the Employment Tribunal found as a fact that the reason why dismissal followed so soon after a complaint about working hours was that the one was the cause and the other effect, and it is seems to us unarguable that that was anything other than a finding which the Tribunal was entitled to make.[20]Against that background, we turn to the argument relating to the burden of proof. In this case, the Tribunal correctly stated that as to the reason for dismissal the Appellants said one thing and the Respondent said another. They analysed the facts, and on carefully stated factual grounds, which we have summarised, the Tribunal found that the Respondent was correct.[21]Whilst it is true that they did not specifically set out the burden of proof in this case, what the process of reasoning was, as I have just outlined, was that the Respondent had discharged the burden of proof. The Employment Tribunal found that her assertion was affirmatively correct. That means that she had succeeded in establishing that which she had set out to do; that is what it means by discharging the burden of proof. It is not necessary for an Employment Tribunal to reiterate particular phrases like "burden of proof" or "sections of an Act" as long as it is plain from the Decision that that is what they did, and it is clear and plain from this Decision that is what this Employment Tribunal did. There is, it seems to us, no available ground of appeal on the findings of the Tribunal in that respect.[22]The Employment Tribunal went on to assess compensation, and remarkably it appears that the Respondent obtained new employment straight away, albeit it was part-time. She produced some job applications and advertisements in relation to which there was a gap of some months. On the basis of that, and on the evidence, the Employment Tribunal made a factual finding that the Respondent had made reasonable efforts to mitigate her loss. The word is "reasonable"; it is not "all possible". It is a matter of judgment and discretion and the Employment Appeal Tribunal would be very slow to intervene in the exercise of discretion on the assessment of compensation and the assessment of efforts to mitigate loss. There is no available argument that the Employment Tribunal erred in their exercise of discretion.[23]In this case, the mere fact that there was a gap in some of the records disclosed to the Tribunal is simply one of the facts that was before the Tribunal, and it does not, it seems to us, find any error of law which can be argued on appeal.[24]Accordingly, there being no arguable error of law in the Decision of the Employment Tribunal, this appeals falls to be dismissed at this preliminary stage.