AUGUSTA HOLIDAY FLATS LIMITED v MS J JONES [2001] UKEAT 1065_00_0703

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1065_00_0703

Case No Appeal No. EAT/1065/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

AUGUSTA HOLIDAY FLATS LIMITEDAPPELLANT

MS J JONESRESPONDENT

Before

Mr Justice Lindsay

Date 7 March 2001

[1]APPEARANCES For the Appellant MR F S JONES Representative MR JUSTICE LINDSAY (PRESIDENT) : We have before us, as a preliminary hearing, the appeal of Augusta Holiday Flats Limited in the matter Ms J Jones v Augusta Holiday Flats Limited. We have before us today, representing Augusta Holiday Flats, Mr Jones, who is a Director of that company; he has addressed us with charm and moderation and it is almost a matter of regret that we, having heard him, have not been able to assist him, but that, for the reasons which will appear, is the case.

[2]The chronology is that on the 10 September 1999, Ms Jones, the Applicant, lodged an IT1 for unfair dismissal. She claims to have been employed from April 1998 to September 1999. On 6 October 1999, the employer, Augusta, put in its IT3. In correspondence it had asserted that the job offered to Ms Jones and accepted by her was only a temporary job and that she had indicated that she had intended to emigrate to Australia. So one can see some reason for the view that the job offered and accepted was only intended to be temporary. On 5 November 1999 the hearing of the case at the Tribunal was adjourned at Ms Jones's request. On 8 May, there was a restored hearing at Abergele under the Chairmanship of Mr D K Battisby. Mr F S Jones, Director of Augusta, the Mr Jones who is representing the company today, represented the company and Ms Jones, the Applicant, was already in Australia but was represented by a friend, Mr Bates.

[3]It seems that it was agreed, albeit perhaps reluctantly and only after discussion with Mr F S Jones, that the case could proceed in the absence of the Applicant, but so it did. On the 9 May summary reasons were sent to the parties. The decision was as follows:

"The unanimous decision of the Tribunal is that the Applicant was unfairly dismissed. The issue of remedy do stand adjourned for 28 days. If the case is not withdrawn by the Applicant within that period, a Chairman will make such further directions, if any, as considered appropriate and the case will then be re-listed for hearing."

The procedural position is recorded in the summary reasons as follows:- " The Tribunal had received a letter from the Applicant on 13 April 2000 stating that she had gone to Australia for an extended period but that she wished to proceed with the case based on the written documents before the Tribunal and that she would be represented by Mr J Bates. The Tribunal considered the issues to be decided with the parties. Having done so, the Tribunal concluded, and the parties agreed, that the case could proceed in the absence of the Applicant." Extended reasons were then requested and they were sent the to the parties on 17 August 2000. Then, without in any way diminishing it, what I could describe as a "home made" notice of appeal was received by the Employment Appeal Tribunal on 21 June. That is to say it was received after the summary reasons but before the extended reasons. In addition, there is a skeleton argument from Augusta and, as we mentioned, Mr Jones has addressed us today.

[4]The notice of appeal and the skeleton argument raise, as we see it, six points, and we will attempt to deal with each of them. The first is this: that the Tribunal's conclusion conflicts with what ACAS had told Augusta. That, if correct, is a little worrying but it is irrelevant. We must test whether there has been an error of law by the Employment Tribunal not by ACAS. Secondly, the complaint is this; whereas, at an earlier hearing, the case had been adjourned because Mr F S Jones of Augusta was not able to be present, when the 8 May 2000 hearing came up, it went ahead despite Ms Jones's absence. But we have to ask why did it go ahead in her absence on the 8 May? The reason was that it was agreed that it should. We have read the passage from the summary reasons saying that the parties agreed and the point was repeated in the extended reasons where the Tribunal says:

"The Tribunal considered the issued to be decided with the parties. Having done so, the Tribunal concluded and the parties agreed that the case could proceed in the absence of the Applicant."

That is the second point. The third is this; on the 8 May, whereas Mr F S Jones was sworn and extensively cross-examined, Mr Bates, who represented Ms Jones, was not. But the answer to that is this; that whereas Mr F S Jones was a director of Augusta and able and willing to give evidence, Mr Bates was merely a friend willing to act as an advocate or representative. There is no suggestion that Mr Bates could give any evidence of any relevance.

[5]Mr Jones tells us today that Mr Bates made what are, in effect, submissions, but submissions are not evidence and an experienced Tribunal would recognise that to be the case. The fourth complaint is this; the Tribunal said, in relation to a reason for a dismissal, that such a reason has to be substantial and not whimsical or capricious. Augusta contends that that conflicts with ACAS's advice. We do wonder whether it does, but, even if it did, that would be entirely irrelevant. We must look at the Tribunal's extended reasons to test them for error, and not merely error of fact but error of law. Our only jurisdiction is in relation to error of law. We find no error of law in the assertion that a reason for dismissal must be other than whimsical or capricious.

[6]Fifthly, Augusta's complaint is that there were inconsistencies in Ms Jones's IT1 as to which Mr Jones was not questioned. But Mr Jones did give evidence. He had the opportunity to point to whatever matters, in his view, needed correction. If he did not take that opportunity, that represents a tactical error by Augusta but it does not represent an error of law by the Tribunal. It could well be that Mr Jones's unfamiliarity with legal proceedings lead him to a tactical error but we must examine whether the Tribunal made an error of law and we do not find one in that area. Sixthly, Mr Jones says that the agreed letter of engagement of Ms Jones was for a temporary post for work with one month's notice capable of being given either way. But that point really misunderstands the nature of unfair dismissal in contrast with wrongful dismissal.

[7]Wrongful dismissal looks merely at the contract. If the contract says one month's notice then if one-month's notice is given then there is no wrongful dismissal. But unfair dismissal goes much wider. One has to look at fairness rather that merely matters of contract and, moreover, one has to look at it in the particular light of Section 98 (4) of The Employment Rights Act 1996. It is very common to have dismissals, which are unfair although not wrongful. The fact that Augusta did not breach its contract does not save it from being responsible for an unfair dismissal. Unfair dismissal was found.

[8]The Tribunal found that none of the statutory reasons for a dismissal set out in Section 98(1)(ii) existed. They held that on the facts laid before them. We see no error of law, even an arguable error, in that conclusion. That being so the dismissal was inescapably unfair. It is a matter of some regret to us that Mr F S Jones has struggled here today against the traffic and at a long distance from North Wales to no avail but, unhappily, we cannot find error of law merely because the traffic is difficult. We have not been able to find an error of law, even an arguable one, and accordingly, we must dismiss the appeal.