EDWARD KIRBY T/A KIRBY'S COACHES v MISS R L EDWARDS [2001] UKEAT 1298_01_2611
[1]APPEARANCES For the Appellant MR PETER REDMAN (Solicitor) Messrs Rudds Solicitors 350 London Road Westcliff-On-Sea Essex SS0 7JL JUDGE PETER CLARK This is an appeal by the Respondent before the Stratford Employment Tribunal, Edward Kirby trading as Kirby's Coaches, against that Tribunal's decision, promulgated with Extended Reasons on 27 th September 2001, upholding the Applicant, Miss Edwards' complaint of unfair dismissal and awarding her compensation of £3019.56.[2]The issue before the Tribunal was whether or not the Respondent, Mr Kirby had dismissed the Applicant on 6 th February 2001. The background to the incident, the Tribunal found, was that on 5 th February a client of the Respondent had telephoned to complain about insurance policies issued by couples to a group travelling to Germany. The Applicant who had principally dealt with that booking decided to give a refund. In the event policies were issued to individual travellers, rather than couples, and no loss was suffered by the Respondent.[3]At about 9.30am, on 6 th February, Mr Kirby raised this matter at a meeting of staff, including the Applicant. She felt, as the member of staff primarily concerned, that these remarks were directed at her.[4]She then raised other matters, including a forthcoming travel fair, which would have involved working the whole weekend. Mr Kirby accepted that she did not have to attend the fair if she did not want to do so.[5]What was then said was in dispute and the members of the Tribunal divided over their findings of fact. The majority accepted the Applicant's evidence that Mr Kirby said to her if she was not going to the travel fair then she had "better go now then". The minority member accepted the evidence of Mr Kirby, supported by his daughter-in-law, Mrs Kirby, who was the Office Manager, to the effect that the Applicant said she did not know what she was doing there and she might as well go home, to which Mr Kirby said that she might as well go home then. The Tribunal unanimously found that the Applicant subsequently picked up her bag and coat and left saying "See you at the Tribunal".[6]Pausing there, the Tribunal directed themselves as to the appropriate legal test to determine whether the words used by Mr Kirby amounted to words of dismissal. The test is how the reasonable employee would have understood the words used in the light of all the surrounding circumstances. On the facts as found, the Tribunal unanimously concluded that there was here a dismissal.[7]In attacking their findings, Mr Redman accepts that the Tribunal correctly directed themselves as to the law, but submits that having done so they misapplied the correct test and reached an impermissible conclusion on the facts.[8]The point is put as shortly and concisely as that, and with equal shortness we reject it. It seems to us that the words used were ambiguous. They might have meant "go home and come back to work on the next working day" or, as the Tribunal found, have been perceived by the reasonable employee, as opposed to simply by the Applicant objectively, as words of dismissal.[9]We think that the Tribunal reached a permissible conclusion and did not misapply the law in finding that there was here a dismissal. Among other surrounding circumstances of which they took into account was that after the event the Applicant wrote to Mr Kirby a letter in which she said "I have been advised to obtain from yourselves full written details of events leading up to me being asked to leave on the above date." Mr Kirby's reply, dated 8 th February was "Thank you for your letter, undated, however, you were not asked to leave on 6 th February 2001." There appears to have been no attempt by the Respondent to do other than deny that factual question.[10]It is not for us to substitute for that of the Tribunal what is essentially a question of fact. Having concluded that the Tribunal not only articulated the correct test in law but also applied it, and having found on the facts, as found by the Tribunal, that those words amounted to dismissal, we can see no arguable point of law to proceed to a full hearing and accordingly at this preliminary hearing stage, we must dismiss this appeal.