MS J PYE v STEPHEN WILCOX T/A BETAPRINT [2001] UKEAT 662_01_2210

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 662_01_2210Case No Appeal No. EAT/662/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS J PYEAPPELLANTSTEPHEN WILCOX T/A BETAPRINTRESPONDENT
Before
Her Honour Judge A WakefieldLord Davies of CoityDate 22 October 2001
[1]APPEARANCES For the Appellant Ms Lucy Williams SDUC 11 Porchester Road Southampton SO10 2JB JUDGE A WAKEFIELD This is an ex parte preliminary hearing of an appeal by Ms Joanna Pye against a Decision of an Employment Tribunal sitting at Southampton by which her complaint of unfair dismissal was dismissed. The Appellant had been employed by the Respondent between 17 May 1999 and 22 September 2000, as a copy shop assistant.[2]She resigned on that latter date and claimed to be entitled so to do by reason of a breach by the Respondent of the implied term of trust and confidence which must subsist between employer and employee. The breach was said to have been the refusal of the Respondent to allow the Appellant her full holiday entitlement.[3]By a Notice of Appearance, the Respondent had denied dismissing the Appellant and denied any breach of her contract of employment.[4]The Employment Tribunal, in a Decision promulgated on 10 April 2001 following a hearing on 22 March, unanimously found, in paragraph 16 of the Decision, that the Applicant resigned her position and that it was not as a result of any fundamental breach in the terms and conditions of her employment, nor as a result of conduct of the Respondent in bringing about, a breach of the term of trust and confidence.[5]The process by which the Employment Tribunal reached that conclusion is criticised in the Notice of Appeal as amplified in the Skeleton Argument and oral argument before us today, in part by reason of a failure of the Employment Tribunal to resolve a critical issue of fact, being as to the circumstances in which, it is said, the Appellant's entitlement to annual leave was reduced, and in part criticised as to the findings of fact by the Tribunal which are said to be wrong, having regard to undisputed evidence.[6]As for reduction in entitlement to annual leave, the Employment Tribunal said this, in paragraph 4 of their Decision:
"4. The Applicant informed the Tribunal that she had received the booklet from the Respondent and had read it twice, understood it as best she could, and it had been on her desk for at least two months. Mr Wilcox's evidence was that he had discussed on three occasions fully with the Applicant the effect of the Working Time Regulations and that she was entitled to 20 days, but that it would include Bank Holidays. The Applicant denied there had been any discussions at all."
Having thus identified the factual dispute between the parties which was central to the issue as to whether any reduction in annual leave had been consensual or unilaterally imposed, the Employment Tribunal, in our view, may be said to have failed to resolve that dispute.[7]As to alleged wrong findings of fact, these are as to the date when the Appellant actually left the Respondent's employ. This is important as regards the time when she started to apply for other jobs and as to whether the correspondence between the Appellant and the Respondent, immediately following her leaving the job, identified her concern as to holiday entitlement as a reason for leaving.[8]In these two respects, we consider that it is arguable that the Tribunal made findings which were contrary or to not justified by the evidence. This appeal should proceed to a full hearing. Category C, time estimate one hour, Skeleton Arguments please to be lodged with the Tribunal and exchanged between the parties not less than fourteen days prior to the hearing.