MRS JEAN WILKINSON v MR DEREK YORSTON [2001] UKEAT 1005_00_0811

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1005_00_0811Case No Appeal No. EAT/1005/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS JEAN WILKINSONAPPELLANTMR DEREK YORSTONRESPONDENT
Before
His Honour Judge A WilkieDate 8 November 2001
[1]APPEARANCES For the Appellant Mr Andrew Simblett Welfare Rights Officer Sunderland Welfare Rights Services Thorndale Road Thorney Close Sunderland SR3 4JQ For the Respondent No appearance or representation by or on behalf of the Respondent JUDGE A WILKIE QC This is an appeal by Mrs Jean Wilkinson against the Decision of the Employment Tribunal sitting at Newcastle upon Tyne on 8 March 2000 which, by a Decision sent to the parties on 30 June 2000, unanimously decided that the Applicant was not unfairly dismissed by Derek Yorston.[2]The basis of the Decision was that she had not satisfied the Tribunal that she was dismissed and accordingly the Tribunal had no option but to dismiss her claim. Mr Simblett, the Welfare Rights Officer of the Sunderland South Welfare Rights Service represented her at the Tribunal, and represents her today, and we are indebted to him not only for his argument today, but also for the Skeleton Argument which he has helpfully provided, which clearly sets out the issue and draws our attention to the relevant legal authorities.[3]Essentially, his case is that the Employment Tribunal's Decision was perverse in the sense that their conclusion, that there was no dismissal, was so startlingly at odds with the surrounding facts as they found them that we are, he says, forced to conclude that they must have just got it wrong.[4]Mr Yorston, throughout, appeared in person at the Employment Tribunal and has not appeared before us today, but he has submitted his written submissions, essentially relying on the Tribunal's Decision and their findings of fact.[5]The Appellant was employed as a fitness instructor with Mr Yorston. She began work on 10 August 1998. The alleged date of dismissal was, at its earliest, said to be 10 August 1999 and so she qualified for claiming unfair dismissal.[6]Her application alleged that she had been dismissed and that it was an unfair dismissal and Mr Yorston in his response agreed at that stage that she had been dismissed, but stated that her reason for dismissal was redundancy. He put the end of her employment as being 5 August 1999, which was the last date on which she actually worked for him.[7]The Tribunal made a number of findings of fact around the weekend, the week previous to which included 5 August 1999. They found that the Applicant had worked as usual on 5 August. They then said that on a date, probably 7 August, Mr Yorston telephoned her and told her that she would be laid off because there was not sufficient work for her. She would shortly be having holiday leave and the Tribunal found that Mr Yorston suggested that she start her holiday early, and that he would reconsider the position at the end of her holiday in September.[8]On 10 August, the Applicant attended the centre with her husband to find that the Respondent had changed the padlocks to the outer door. Mr Yorston explained that that was because he was concerned that she had keys which might not be used for some time and could be mislaid. He said it was his normal practice to change the locks if there were any staff changes. At any rate, she rang the bell, was admitted by Mr Yorston, she asked for her wages and was given a pay packet up to date for the outstanding week.[9]The Tribunal record that Mrs Wilkinson accepted that Mr Yorston did not say anything at that time that could be construed as terminating her employment. She asked when she would be able to return to work, and Mr Yorston said he did not know. At that point there was a discussion about holiday pay, Mrs Wilkinson saying she was entitled to three weeks holiday pay because she was being asked by Mr Yorston to take extended leave. There was a disagreement about this, matters became heated, she was asked to leave, she asked Mr Yorston if she was being sacked, and Mr Yorston said he was not sacking her but that she should now leave the premises.[10]There therefore was a situation on that date where, according to the Tribunal's findings of fact, the Applicant accepted that she had not then been dismissed. The parties, on the contrary, were acting as if the contract continued. She was going to go on immediate extended holiday. The matter was to be reviewed on her return at the beginning of September but there was a dispute between them whether Mr Yorston was obliged to pay her holiday pay.[11]Mr Yorston sought advice from ACAS and, apparently following receipt of that advice, eventually paid her holiday pay for three weeks holiday at the rate of sixteen hours per week which was the number of hours that initially, Mrs Wilkinson had been working for him.[12]Mrs Wilkinson, in the meantime, sought the advice of the Welfare Rights Officer, Mr Simblett and he wrote to the Respondent on 20 August. We do not have a copy of that letter, but Mr Simblett tells us and we accept from him, that his letter was raising with Mr Yorston the entitlement to holiday pay. Mr Yorston replied to that letter by a letter dated 31 August which reads as follows:
"Dear Sir Re Jean Wilkinson The above named was employed at the Sunniside Club to work with a qualified instructress as she is not qualified. The qualified staff I had are not with me now and up to now I have not getting any so I do not have any work for her and had to lay her off."
Signed Mr Yorston, and then at the foot he says: "Business is bad"[13]What seemed to the Tribunal clear, and what in our judgment they were perfectly right in concluding, was that, as of 10 August, there was no dismissal and therefore both Mrs Wilkinson and, indeed, Mr Yorston in their respective application and Notice of Appearance had misconstrued the legal consequences of what the Tribunal found had happened.[14]Unsurprisingly, perhaps, Mrs Wilkinson sought to rely on the terms of the letter of 31 August, as constituting either a dismissal itself or a confirmation that she had been dismissed. It is plain that Mr Yorston is not a person trained in, or familiar with, the niceties of employment law, but he does in that letter, say things which point both ways. The letter begins by saying that she was employed, which might mean she was working in the past, but remains in employment or she was at one time employed but was no longer employed. It is an unambiguous phrase, but could be read consistently with an acknowledgement that the employment has come to an end. The concluding paragraph however speaks of the qualified staff not being with him now, ".not with me now and up to now I have not getting any so I do not have any work for her and had to lay her off." Once again, that is not unambiguous, but is probably more consistent with a position of lay-off rather than dismissal.[15]The Employment Tribunal had to consider what effect, if any, this letter had on the position which had pertained as of 10 August which was that there was no dismissal, but that Mrs Wilkinson was not being given any work, she was sent on holiday, and the position was to be reviewed at the beginning of September.[16]Whilst it may be that they overstated the position by finding that it cannot reasonably be construed as terminating or confirming that the contract of employment had been terminated, in our judgment, it falls a very long way short of revealing that the Tribunal was perverse in deciding, on the basis of their reading of that letter, that nothing had changed from the position as it had been left on 10 August.[17]Mr Simblett has, very properly and helpfully, referred us to the case of Southern -v- Frank Charsley & Co [1981] IRLR 278 and another authority, Sovereign House Security Services Ltd -v- Savage [1989] IRLR 115 .[18]The effect of these decisions is that if there is ambiguity in a document or ambiguity as to the words used, then the Tribunal is able to look at the context within which the words were used, in order to determine what their meaning is, but if the words are absolutely unambiguous, then they have to be given their unambiguous meaning, without resource to the context. He argues, and we agree with him, that it would be quite wrong to regard the letter of 31 August as unambiguous so that it is entirely proper to look at the context, but we are equally satisfied that the Tribunal was having regard to the context, and in particular, was considering whether, given the context, the letter of 31 August changed anything from the way it had been left on 10 August, as we say, we think that the conclusion to which this Tribunal came was one to which they were entitled to come.[19]We do not accept that it was a perverse finding, nor was it one which reveals any error of law or misdirection of law, and it therefore follows that notwithstanding Mr Simblett's best efforts to the contrary, this appeal fails and the Employment Tribunal Decision stands.