MR GARY TUHILL T/A RITE PRICE SOUND AND VISION v MISS K BOOTH [2001] UKEAT 1188_00_1602

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1188_00_1602Case No Appeal No. EAT/1188/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR GARY TUHILL T/A RITE PRICE SOUND AND VISIONAPPELLANTMISS K BOOTHRESPONDENT
Before
MR COMMISSIONER HOWELL QCMR D NORMANMR P A L PARKER CBEDate 16 February 2001
[1]APPEARANCES For the Appellant MR DAMIAN BROWN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR COMMISSIONER HOWELL QC In this appeal which is before us today for preliminary hearing, Mr Gary Tuhill, trading as Rite Price Sound and Vision, seeks to have set aside the decision of the Southampton Employment Tribunal, contained in Extended Reasons sent to the parties on 11 August 2000 after a hearing at which both sides submitted oral and/or written evidence on 10 July 2000.[2]The complaint before the Tribunal was by a Miss Kelly Jane Booth, alleging unfair dismissal on 31 January 2000 from her employment with Mr Tuhill as the proprietor and manager of a record and video shop operated by him, this being one of two or more stores in the same line of business that he was operating at that period.[3]She had been employed since September 1999 and the precise date her employment came to an end was a matter in issue before the Tribunal. It was either Saturday 29 January 2000 or 31 January 2000, which was a Monday. Because of the short period of her term of employment, there would have been no question of the Tribunal entertaining a complaint of unfair dismissal apart from the fact that the major ground on which Miss Kelly alleged she had been dismissed was because she had told Mr Tuhill a few days previously that she was pregnant, and in those circumstances a complaint for unfair dismissal, if the reason for the dismissal was connected with pregnancy, can of course be entertained by a Tribunal without the normal minimum period of employment having been completed.[4]The main ground of complaint in her Originating Application dated 4 February 2000 was that she had been left all by herself in the shop all day, without the opportunity of having a break on Friday 28 January. She had had been feeling ill, and had closed the shop up at 4.30 pm, instead of what she understood to be the normal closing time of 5.30 pm, and had gone home. She said, and I think it is clear, that the difficulty she had in keeping going throughout the whole day without a break was to some extent, connected with the fact that she was pregnant; although obviously she was entitled to some form of break, whether pregnant or not.[5]Her version of events was that when she arrived for work on the following Monday, 31 January, she had been summarily dismissed by Mr Tuhill for having closed the shop early on the Friday. The Respondent's answer, before the Tribunal, gave a completely different and conflicting version of events which was that she had been employed for a four month fixed period only, terminating on Saturday 29 January 2000; and what had taken place on Monday 31 January was simply the hand-over by Miss Booth of the keys of the premises, in accordance with what was alleged to have been the fixed term arrangement, and the handing to her of her P45 tax form, made up to the alleged contractual termination date of her employment on 29 January.[6]The Tribunal heard the evidence from both parties, believed Miss Booth's version of events and disbelieved the evidence given to it by Mr Tuhill. They accordingly held, in particular, that as she had informed Mr Tuhill, a few days before her employment came to an end, that she was pregnant and no satisfactory reason for the bringing of her contract to an end had been given by Mr Tuhill, that it was a proper inference to draw that she had been dismissed because she was pregnant, and her dismissal was therefore automatically unfair. On that ground they awarded a total sum of £3,067.21 compensation, although a large proportion of that was subject to recoupment because Miss Booth was claiming Job Seekers Allowance.[7]Against that decision, Mr Tuhill seeks to pursue an appeal, on the grounds originally set out in his Notice of Appeal dated 18 September 2000; first that the Applicant (Miss Booth) had not produced written evidence to substantiate her version of events. That ground of appeal has been very properly abandoned, on behalf of Mr Tuhill, by Mr Damian Brown who appears before us today, and has made very helpful submissions on behalf of Mr Tuhill, under the ELAAS scheme. Mr Brown sought to pursue the appeal on the two further grounds set out in the Notice of Appeal, and amplified by him in his submissions, which were first that the Tribunal had misdirected themselves in the findings they made on the nature of the employment contract and on what Mr Tuhill had argued was an agreed termination date, at the end of January 2000.[8]Secondly, Mr Brown sought to establish that there was an arguable point of law on the way the Tribunal had calculated the part of the compensation they awarded for loss of bonus which they assessed as being an average £35 a week over the 15 week period on which they thought right to base their compensation award, for loss of wages.[9]Dealing with those points in a little more detail, Mr Brown submitted that there was an error in the Tribunal's finding that there had been no fixed term contract of employment, but that this was a normal contract of employment brought to an end by dismissal. The Tribunal had wrongly failed to take account of evidence which was put by Mr Tuhill before the Tribunal, indicating that at the end of January 2000, he was due to relinquish the tenancy on other shop premises that he had been operating in Aldershot, Miss Booth having been the manageress of his shop in Farnborough. This, said Mr Brown, was in fact important corroborative evidence to support the inference as to the engagement of Miss Booth having been for a fixed period only, to tide Mr Tuhill over until he himself or some other employee became available to man the shop in Farnborough. That, Mr Brown said, was consistent with the version of events put forward by Mr Tuhill to the Tribunal: the date, asserted by him to be the termination date for Miss Booth's employment was 29 January 2000, and as shown by the documents relating to the lease of the other premises which we have seen, the intention was that those other premises would, indeed, be relinquished on that same day, Saturday 29 January 2000. Mr Brown said that the Tribunal's findings were inconsistent with this evidence which was before them; to have inferred against that evidence that there nevertheless was no fixed term contract, and that the retention by Miss Booth of the keys of the premises until the Monday morning was inconsistent with such a contract, was a misdirection and amounted to perversity on the part of the Tribunal, in the way that they reached their decision against Mr Tuhill.[10]On the bonus aspect of the case, Mr Brown pointed to the Tribunal's calculation of the bonus, on which they based their award of compensation, as having been £35 a week, as recorded in paragraph 3.11 of their Extended Reasons at page 3 of the appeal file before us, and said that this disregarded evidence which had been given by Mr Tuhill to the Tribunal, that the bonus figures actually produced to the Tribunal related to a period of above-average sales over the Christmas and New Year period, and gave a distorted picture. This embodied a misdirection by the Tribunal, as to the correct basis on which any average could be awarded for a period of as long as 15 weeks, until 15 May, which was the period they took for the purposes of the loss of wages award.[11]We have concluded that although, in some respects, the reasoning of the Tribunal may not be as clearly and minutely expressed as it might have been on either of these issues, nevertheless, there is no arguable ground in law for saying that the Tribunal, so far misdirected themselves that their decision may be set aside by this Tribunal on appeal.[12]In the first place, on the contract issue, we think it significant that there were three crucial issues of fact on which the case depended, and on each of them, the Tribunal having heard the evidence of both sides, accepted the evidence of Miss Booth, and rejected the evidence of Mr Tuhill.[13]The first crucial issue of fact was what actually were the terms agreed between the two of them as to Miss Booth's employment, when she was engaged. On that, the Tribunal found specifically, in paragraph 3.3 of their Extended Reasons that:
"3 The Applicant was engaged by the Respondent on a normal permanent contract of employment and the Tribunal rejects the Respondent's evidence that she was engaged on a fixed term contract expiring at the end of January."
[14]Second, was the issue as to whether she had told Mr Tuhill, shortly before her employment was terminated, that she was pregnant. Again, on that, against the express denials of Mr Tuhill, the Tribunal recorded the finding of fact in 3.7 of their Extended Reasons as follows:
"7 The Applicant discovered she was pregnant in about November 1999 and disclosed this to the Respondent on Wednesday 26 th January. The Tribunal finds as a fact that the Applicant did disclose her pregnancy to the Respondent and reject the evidence of the Respondent that he was not told until after the end of her employment."
[15]Third was the issue of how the employment came to be terminated. Again, the Tribunal expressly accepted the evidence given by the Applicant, Miss Booth, and rejected that given by Mr Tuhill, as recorded in paragraph 3.5 and 3.6 of their extended reasons in the following terms:
"5. The Applicant turned up for work on Monday 31 st January as usual and was dismissed by the Respondent on that day. The Applicant was in possession of the shop keys when she arrived for work that day. 6 The reason given to the Applicant for her dismissal by the Respondent was that she had closed the shop early on the Friday at 4.30 pm and this was not acceptable to the Respondent."
[16]Again, that is completely inconsistent with the version of events put before the Tribunal by Mr Tuhill, that her employment had come to an end automatically on the Saturday, he had not in any way dismissed her (for the reason given, or for any other reason), and that her attendance on the Monday was simply in order to hand over the keys and receive her P45, in accordance with what had previously been agreed between the two of them.[17]We accept that there may have been further material, identified for us by Mr Brown, which might have been held to suggest a different interpretation of events, supporting the oral evidence given by Mr Tuhill. But it does not appear to us that that could be regarded as in any way conclusive against the evidence which the Tribunal did decide to accept.[18]These were findings which, in our judgment, having heard the oral evidence of both sides, a Tribunal of fact was entitled to make, and in our judgment, they make it unarguable that there is some error of law which would entitle this Tribunal to set the whole decision aside, and in effect, reverse the decision of the Tribunal below on the crucial issues of fact which decided the case.[19]As regards the bonus calculation, that is stated in paragraph 3.11 of the Tribunal's Extended Reasons in the following terms:
"11 The Applicant was in receipt of gross pay of £160 per week and net pay of £136.82 plus an average bonus of £35 per week making an average net pay of £171.82"
On that basis, the Tribunal took an assumed period of employment until the likely commencement of maternity leave for Miss Booth, for the reasons they gave, taking the loss of wages period up to 15 May 2000, and awarded compensation consisting of loss of wages, including loss of what they took to be an average figure for bonus, during that period.[20]The argument that this calculation by the Tribunal was based on a mistaken assumption as to the average over the period for the computation was, (it was made clear to us in response to questions specifically put by this Tribunal in the course of the hearing before us) put forward at the Tribunal and was rejected by them. The only documentary evidence before the Tribunal, as we understand it, was that produced also to us, which consisted of handwritten payslips, confined to the Christmas and New Year period, and it was on the basis of that being apparently the only available evidence that the Tribunal appear to have made their award, including a figure for loss of bonus.[21]Since the express argument that to take such a figure would produce a distortion, based on those sales figures, was put before the Tribunal, as to which we understand there to be no doubt, it appears to us that, again, the assessment of the amount must be a matter of fact for the Tribunal. Although no details are given in the Tribunal's Extended Reasons of the actual calculation method they used to arrive at what they describe at the average figure of £35, given the Tribunal's rejection of Mr Tuhill's factual evidence on other material issues, we have not been satisfied that it would be right for us to infer that there was an error of law, or a misdirection on the part of the Tribunal in taking the figure they did.[22]Having reached those conclusions on the two issues argued before us as potential questions of law to send forward to a full hearing of this Appeal Tribunal, and having taken the view that neither of them discloses a sufficiently arguable point of law to warrant us taking that course, we now unanimously dismiss this appeal.