MR R MARTINEZ v FWA WEST LTD [2001] UKEAT 1132_00_2302

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1132_00_2302

Case No Appeal No. EAT/1132/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR R MARTINEZAPPELLANT

FWA WEST LTDRESPONDENT

Before

Mr Justice Lindsay

Date 23 February 2001

[1]APPEARANCES For the Appellant THE APPELLANT BEING NEITHER PRESENT NOR REPRESENTED MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of a preliminary hearing the appeal of Mr R Martinez in the matter Martinez v F WA West Ltd . No one appears before us for Mr Martinez. The usher has sought to make contact with him, but the number that we were given has led to no communication with Mr Martinez. On 9th May 2000 Mr Martinez lodged an IT1 claiming unlawful deduction of wages, breach of contract and unfair dismissal; he was claiming that the unfair dismissal was for asserting statutory rights. He claimed that he had been employed from a date in September 1999 to 10th February 2000, in other words, five or six months at the very most, and he claimed that he had been employed as a driver. He said:

"On or around 10th February 2000 the applicant complained that the respondent did not have the right to make him pay his petrol himself and took into work a book called "

Know your Rights". He showed this to his manager who then dismissed him. The respondent has sought to say that he resigned. This is denied. The applicant had the right under s15 of the Employment Rights Act not to be required to make unauthorised payments to his employer and he was sacked for asserting that right. Accordingly he has a claim for unfair dismissal."

[2]It might be worth pausing for a moment to look at section 15 "Right not to have to make payments to employer (1) An employer shall not receive a payment from a worker employed by him unless- …" then there are certain prescribed arrangements that need to be complied if the employer is to be able to require payment or receive payment from an employee. One notices that the IT1 was not complaining of the employer requiring or receiving a payment from the employee, but rather that the employee was having to pay for petrol, being petrol used in the course of the business for which he was employed.

[3]On 25th May 2000 the Employment Tribunal received an IT3 from the employer which amounted to a denial of Mr Martinez' claim. It included the allegation that he had been provided with a van and that it was the custom and practice, in the case of this particular company, that the employee should provide his own fuel. The object of this, it said, was to prevent abuse from private use of the vehicle.

[4]On 3rd July 2000 there was a hearing at the tribunal under the chairmanship of Ms K Markus. On 4th August 2000 the decision was sent to the parties and it was unanimous; it was that the tribunal held that the applicant was not unfairly dismissed. Taking out some of the salient facts that appear in the decision, only unfair dismissal was ruled upon because paragraph 2 of the extended reasons says:

"The Applicant originally complained of unfair dismissal, breach of contract and unlawful deduction from wages but at the Tribunal hearing the Applicant withdrew the latter two complaints so that the sole issue before the Tribunal was whether the Applicant was unfairly dismissed."

Hence only unfair dismissal was in play. The way that Mr Martinez' solicitor put the case below was as follows:

"3 The Applicant brings his claim under section 104(1)(b) of the Employment Rights Act. He claims that the reason for his dismissal was that he alleged that the Respondent had infringed relevant statutory rights, namely the right to a statement of particulars of employment under section 1 of the 1996 Act, and the right not to have unauthorised deductions made from his wages contrary to section 15 of the Act. …"

[5]We have in mind, but will not take up time to read, section 104(1)(b) of the Act, and also one needs to see also subsection (2) as to claims being made in good faith. Whether it suffices for a claim to be regarded as made in good faith if it is not shown that it was made in bad faith may be a matter that needs to be debated.

[6]The tribunal set out the issues as it saw them and they included:

"(ii) whether he was asserting his statutory rights; … (iv) whether the Applicant's assertion of the infringement of those rights was the reason or the principal reason for the dismissal."

Seven witnesses were heard. Contrary to Mr Martinez' IT1, the employment was taken to have run from 9th November 1999. The employees in this particular company did commonly pay for the fuel used in the company's business. The tribunal said:

"8 … There was a common practice in the Respondent company, or at least at the Applicant's workplace, that the employees doing work of the same sort as the Applicant paid for fuel. …"

Mr Martinez did ask for a contract of employment on 7th February 2000; that was dealt with by the tribunal as follows:

"9 On or about 7 February the Applicant and a colleague of his were subject to a disciplinary hearing, the reasons for which do not concern this Tribunal. At that meeting the Applicant's colleague asked for a contract of employment or enquired as to the whereabouts of the contract of employment and was told by Mr Boswell that "this is no time to be clever"."

He was told that he had to pay for his own fuel used and he remonstrated that that was wrong. The tribunal in their paragraph 10 say:

"The Applicant told Mr Bate that his aunt had information that suggested or showed that he did not have to pay for fuel for doing the company's work and that they were in possession of the book called "

Know Your Rights" which showed that this was the case. Mr Bate told the Applicant to bring the book into work." Mr Martinez confronted the employer in robust terms. The tribunal found that he said this:

"I'll ask you one more time, then I'll go away. I'm leaving to see professional legal advice. If I take a case against FWA I know I'll win because you are a cheat and a liar. You obviously believe you're the law in this place, you know I'm not self-employed or earning decent money for the work I do but you sit there arrogantly telling me to piss off, not to bore you with your sob stories, even though you know I am right, you've lied constantly about my contract and taken advantage of my need for a job. You're a bully and a cheat and you're not a decent employer."

All that seems to have happened on 10th February 2000. A heated argument then took place and the employer handed Mr Martinez a letter saying that his resignation was accepted. Mr Martinez claimed that he had not resigned but had been dismissed. However, the tribunal accepted evidence that Mr Martinez was told that he had not been dismissed. This was the evidence of a Mr Rato of whom the tribunal said:

"We found Mr Rato to be a truthful witness."

There was grievance meeting on 17th February 2000 and the employer on 18th February 2000 wrote a letter, which the tribunal described in their paragraph 20:

"Following that meeting the Respondent wrote to the Applicant on 18 February stating that the Applicant had not been dismissed and that, although the Applicant had maintained that he had not resigned, he had stated that he would not work for the Respondent for the foreseeable future and that the Respondent took that to mean that the Applicant had in fact resigned."

The tribunal held as follows:

"21 … The Tribunal finds that the Applicant resigned on 10 February. … His behaviour and comments throughout, as well as his explanations to the Tribunal for his actions, are more consistent with his having decided that he wanted to leave the Respondent and was not prepared to respond positively to any overtures that might have enabled him to continue working for them. For these reasons the Tribunal finds that the Applicant resigned and was not dismissed. 22 Therefore the Applicant's claim for unfair dismissal is dismissed."

[7]But does a finding that Mr Martinez had resigned necessarily preclude his having been dismissed? Plainly it does not. Constructive dismissal is quite commonly preceded by an apparent resignation coupled with some remark such as "this is wrong, I cannot take it anymore, I resign". The tribunal had recorded his evidence as including:

"I did not want to go back again because I was totally fed up with the way they were treating me." and also the tribunal found: "21 … We note that the Applicant had become fed up with his situation at work. He said himself "

I couldn't work like this"."

[8]It is arguable, as it seems to us – and of course, at a preliminary hearing, all we are concerned about is what is arguable – that the tribunal erred in law in not finding out why he felt that he could no longer work for the company. Was it because he had required a statement of particulars but had got nowhere and was told "this is no time to be clever"? Was it because he regarded having to pay for petrol whilst on company business and without that having been a clear and express term of his contract of employment was not only a breach of contract or perhaps, more importantly, an unauthorised deduction and, if it was, was that belief in the unauthorised deduction the determining factor in his resigning as apparently he did? There are difficult and potentially rather important questions arising in this area – see Harvey at Q637. There does not seem to be any learning on the question of whether obliging an employee himself to bear costs otherwise ordinarily regarded as costs of the employer can be regarded either as a deduction, and, potentially, as an improper deduction from wages, or as being the equivalent to the employee being required to pay to the employer. Of course, in credit and debit terms, if he does have to bear his own petrol, it might be equivalent to a requirement by the employer to pay the employer a sum and that, as we have seen, can be prohibited.

[9]There is, as it seems to us, no learning in this area, and there are questions therefore that need to be looked into.

[10]But the tribunal, although they had identified the issues relating to the assertion of statutory rights and as to the causal connection between the assertion of statutory rights and the reason for the dismissal, held, in their paragraph 23 as follows:

"It is worth noting that, even if we had found that the Applicant was dismissed, it appears to us that there is real doubt whether the Applicant had in fact asserted anything that he believed to be infringement of a relevant statutory right (as he has claimed) within the meaning of section 104 of the Employment Rights Act, or that such assertion was the reason or the principal reason for the Applicant's dismissal. We came to no final conclusion on this as it was unnecessary for us to do so."

[11]Well, the only apparent reason why the tribunal could have regarded it as unnecessary to do so would have been that they took the view that there had not been a dismissal but merely a resignation and that, as we have already noticed, does not preclude there having been constructive dismissal. It was, it seems to us, arguably wrong of the tribunal not to have looked into the reasons for the resignation to see if they included a legitimate reaction on Mr Martinez' part to a breach of a statutory right. So there is there, in our view, arguable error of law. We permit ground 1 of paragraph 6 of the Notice of Appeal to go forward to a full hearing.

[12]Ground 2 of that short paragraph 6 is a complaint of bias on the part of the Chairman. We have read the long letter of Mr Martinez' aunt on the subject. She was present at the hearing. She says, rather engagingly, in her long letter:

"I don't half go on I don't know how to write a short letter, every things important to me."

But the alleged bias is not bias in the ordinary way. Bias in the ordinary way goes to the conduct or disposition or manner of the Chairman or members of the tribunal at the tribunal hearing or perhaps goes to some conflict of interest that is discovered to be relative to one or more of them. Mr Martinez' complaint as to bias related to the reception by the tribunal of a piece of evidence from the company that was introduced to cast Mr Martinez in a bad light. The aunt's, Mrs Martinez's, comment on the point is this: The lady Chairperson read the document (I have enclosed a copy for your attention) asked who Mr Desia [ he is the author of the letter ] was, he stood up, a few words were exchanged, she then said clearly and articulately, this has nothing to do with the tribunal, (fair comment) adding (unfairly) this is a very serious allegation, I hope the company are dealing with it. Dealing with what? It was an allegation, a set up, designed to discredit and it worked." The letter which came from Mr Desia and was sought to be introduced by the respondent company made out that Mr Martinez was a fraudster, defrauding his own employer. Mr Martinez himself dealt with this in an affidavit and says that he was seriously prejudiced by the biased comment of the Chairman:

"I believe Ms Markus' duty of fairness toward me, was seriously injured by her comments when she said 'this document has nothing to do with the tribunal hearing but the allegations were so serious, she hoped the company (meaning FWA) were dealing with them"

. This comment should never have been voiced since the document had no bearing on the tribunal." The Chairman has been asked for her comments and she deals with the matter. We will not read out the whole of the letter of 10th November 2000 but she does say at the end:

"I did not say anything about hoping that the Respondent was dealing with the allegation. Neither I nor the Tribunal formed any view on the substance of the allegation. It was simply disregarded by us. It had no bearing whatsoever on our findings upon the application for unfair dismissal."

We have no ground on which to disbelieve that assertion that the tribunal did not form any view on the substance of the allegation of Mr Desia's letter or that the letter was disregarded by the tribunal, or that, thirdly, it had no bearing on the findings of the tribunal. There is no indication in the extended reasons of the letter playing any part at all in the reasoning of the tribunal. Indeed, there is no general refutation of Mr Martinez' evidence. It was, rather, that the independent evidence of Mr Rato was preferred on an important point; indeed, it was preferred to the evidence of both sides, Mr Martinez and FWA. Mr Rato's evidence seems to have been preferred because he was an independent figure. That being so, we conclude that there was here a simple misunderstanding or mishearing with the applicant believing that the Chairman had said "The allegations are so serious I hope the company is dealing with them" whereas the Chairman had truly said something on the lines of "The allegations are serious and the applicant has had no notice of them". We see no arguable error of law in relation to bias and no proper case of bias that is likely to be capable of being substantiated. So we do not allow the bias ground to go to a full hearing. Of course, with having no one in front of us today, we have not been able to explore it in any way with Mr Martinez. We have had to deal with it simply looking at the paper on the point. Looking at the paper on the point, we have concluded, as we have said, that there was a misunderstanding or mishearing.

[13]So the bias ground does not go to a full hearing, but ground 1 in paragraph 6 of the short Notice of Appeal does go to a full hearing in the way that we have described.