MR D REDGRAVE v MR A CULHAM [2001] UKEAT 618_01_0810

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 618_01_0810

Case No Appeal No. EAT/618/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR D REDGRAVEAPPELLANT

MR A CULHAMRESPONDENT

Before

Mr Justice Lindsay

Date 8 October 2001

[1]APPEARANCES For the Appellant MR PAUL STEWART (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE LINDSAY (PRESIDENT) We have here before us as a preliminary hearing the appeal of Mr D Redgrave in the matter Mr A Culham -v- Mr D Redgrave t/a Redgrave Services ; Mr Redgrave was the erstwhile employer. This morning he has been represented by Mr Stewart under the ELAAS system and Mr Stewart has put up as much useful argument as can possibly be imagined on behalf of Mr Redgrave.

[2]The position is that on 4 August 2000, an IT1 was lodged by Mr Culham for unfair dismissal, payment in lieu of notice and written reasons for dismissal. On 21 August of last year an IT3 was put in saying that Mr Culham had been dismissed for gross misconduct which included attempted theft and racist remarks.

[3]On 22 January of this year, there was a hearing and on 31 January of this year, the Decision was sent to the parties. It was the Decision of a Tribunal under the chairmanship of Mr Pritchard-Witts at Stratford. The Decision was:

"The unanimous decision of the Tribunal is that the Applicant was fairly dismissed and is not entitled to a payment in lieu of notice. The Respondent failed to provide the Applicant with written reasons for his dismissal within 14 days and is therefore ordered to pay him the sum of £760.00 forthwith."

And at paragraph 3 the Tribunal said:

"Mr Culham was dismissed and the effective date of termination of his contract of employment was 30 June 2000."

[4]On 12 February a Notice of Appeal was dated by Mr Redgrave; it was received here on 13 February, and paragraph 6 of the Notice of Appeal, which requires the Appellant to set out his grounds, says:

"Section 8 states that Redgrave Services did not respond within 14 days to A Culham's request as to why he had been dismissed. His letter dated 3 rd July was answered on 14/7/2000 giving reason of attempted theft as reason for dismissal."

The Tribunal Decision that had been sent out to the parties had only Summary Reasons and it is the fact that, in the ordinary way, an appeal cannot be mounted on Summary Reasons. It is likely that the Employment Appeal Tribunal wrote to Mr Redgrave or phoned him to say that Extended Reasons would be needed if he wanted to pursue his appeal, and on a date - it is not entirely clear when - it could be 21 February, it might be 26 March, it matters not for immediate purposes - he asked the Employment Tribunal for Extended Reasons.

[5]On 9 May they were refused. It is a little confusing because they were refused in the first instance because the application was made outside the twenty one day period, and yet the letter stating that indicates that the Decision was promulgated on 31 January and the application for Extended Reasons was 21 February, but what is said is this, the rule about twenty-one days having been set out:

"The request is therefore out of time. Accordingly, taking into account that the Decision was made in the light of your own concession that the company was in breach of Section 92(2) of the Employment Rights Act 1996, I decline to provide you with extended reasons. Furthermore the short point is adequately covered in the summary reasons in any event."

[6]On 21 May Mr Redgrave appealed against the refusal to give Extended Reasons. This, it seems to us, is a case where the Summary Reasons do suffice, as the Chairman rightly says, so the fact that there are no Extended Reasons should not stand in the way of the appeal against the Decision of 31 January of this year. But the Chairman was plainly of the view that a breach of Section 92(2) had been conceded. If that is right then there can be no error or law in the Employment Tribunal's award and the Chairman's understanding that there had been a concession perhaps also explains why there is no reference in the Summary Reasons to the letter of 14 July which we will come on to. The award of two weeks salary, if there is a breach of Section 92(2) is mandatory. Section 93(2)(b) says the Tribunal shall make such an award. There is no discretion in the Tribunal, nor is it any form of defence that the person asking for the written Reasons already knows the reasons. Thus, if the Chairman was right as to the concession that he understood that was made, then there is no arguable point of law. But suppose the Chairman was wrong? We have no reason to suppose that he was wrong, but let that be assumed in Mr Redgrave's favour.

[7]We have sufficient papers to come to a view. The position is that Mr Culham made a clear request for written reasons on 3 July of last year and it was conceded that that request was received on or about 3 July, or, presumably, shortly thereafter, in the ordinary course of post. If the letter of 14 July, which was written on behalf of the employer, gave in writing particulars of the reasons for the dismissal on 30 June then Mr Redgrave would have an arguable point. But it is quite plain that Section 92 pre-supposes the dismissal has already taken place (see Section 92(1)(b) ).

[8]The Reasons required to be given are thus of a dismissal that has already occurred. However, it transpired that Mr Culham was later held to have been already dismissed on 30 June. But the employer's letter of 14 July pretends or assumes that there has, at 14 July, not yet been a dismissal. It required Mr Culham's attendance at a disciplinary hearing; it suggests that matters are still unresolved and that the question of the disciplinary sanction to be imposed was still in the air. Thus it says for example:

"At the hearing, [that is to say the disciplinary hearing] you will of course be given an opportunity to explain your side of the story. You may dispute the evidence, provide your own evidence and otherwise argue your case. You may also put forward any mitigating factors which you consider relevant to your case. Due consideration will be given to any factors or explanations which you raise when considering what if, any, disciplinary sanctions are to be imposed."

It suggests that a dismissal could take place; in the penultimate paragraph of the letter it says:

"Since the Company views the allegations against you as gross misconduct offences, I must inform you that the outcome of this disciplinary hearing could still result in your dismissal."

It is therefore not a letter which could be read as giving the employer's reasons for a dismissal that had already taken place. The reasons for a dismissal that had already taken place did not emerge until 25 July, and they can be seen in a letter of that date, sent by Redgrave Services to Mr Culham, which says:

"A full investigation of the facts was made by Daren Redgrave. Having put the specific facts to you for your comment, it was decided that your explanation/excuse was not acceptable in the circumstances. For this the Company believes it is left with no alternative other than to summarily dismiss you from it's employment on the grounds of gross misconduct. The gravity of your misconduct is such that the Company believes the trust and confidence placed in you as its employee has been completely undermined. You have been dismissed for the following reasons of gross misconduct:"

And then it mentions attempted theft and the racist remarks, but those did not emerge in writing until 25 July. The Tribunal said that:

"The response should have been forthcoming within 14 days, however a letter was not returned until 25 July 2000 and therefore the provisions of Section 93(2)(b) of the 1996 Act apply. Accordingly, the Applicant is entitled to two weeks pay which is an agreed amount of £380 multiplied by 2 to provide an award in the sum of £760.00. It is the Tribunals declaration that the written reasons for dismissal were those set down in paragraph 5 above, and the amount of £760.00 is to be paid by the Respondents to the Applicant forthwith."

It is true that there is no mention there of the letter of 14 July but that was either because of the concession which the Chairman understood to have taken place (namely that there had been breach of Section 92(2))or because the Tribunal was concentrating upon a search for reasons for a dismissal that had already taken place and in that sense it is only the letter of 25 July that purports to give those reasons.

[9]It is not satisfactory; one can understand real unease, to put it no more strongly than that, distaste perhaps, on Mr Redgrave's part, that the employer should have to pay any sum of money to a man who seems to have been held to have been properly dismissed for his attempting theft and his unpleasant racist remarks. But the answer to that is that the employer really should have properly answered the request for written reasons within the time prescribed by the Act. The Act gives no ability to temper the award because the employee knew all along what it was that was being said against him. It is no defence that Mr Culham knew what the reasons were.

[10]It seems to us that, strictly speaking, there is here no error of law. We can understand Mr Redgrave's displeasure but we cannot let the matter go forward simply because a party has displeased. No arguable error of law here emerges and, accordingly, the appeal is dismissed, even at this preliminary stage but we cannot leave the matter there without thanking Mr Stewart, who has put the matter robustly before us as fully as it could be.