FLOWERS DIRECT (WORLDWIDE) LTD T/A FLOWERWORLD v MRS M MORRISON [2002] UKEAT 0777_01_3001

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 0777_01_3001

Case No Appeal No. EAT/0777/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

FLOWERS DIRECT (WORLDWIDE) LTD T/A FLOWERWORLDAPPELLANT

MRS M MORRISONRESPONDENT

Before

Mr Recorder Langstaff Mr D Chadwick Mr S M Springer

Date 30 January 2002

[1]APPEARANCES For the Appellant Mr R Dudson (Representative) For the Respondent MR RECORDER LANGSTAFF This appeal comes to us by way of preliminary hearing from a decision of the Employment Tribunal sitting at Exeter. On the 15 th May 2001 the reasons were sent to the parties. By those reasons the Tribunal upheld Mrs Morrison's complaint that she had been unfairly dismissed by the Respondent and ordered the payment by the Respondent to Mrs Morrison the sum of £4996.35.

[2]The facts were essentially that the Respondent failed to establish the reason given for the dismissal as being unsatisfactory performance which was that alleged in their response to the Originating Application by Mrs Morrison. They gave a number of different reasons, but ultimately the Tribunal found that the dismissal was unfair and there has been no direct challenge to the substance of that decision. The grounds upon which Mr Dudson, who appears on behalf of the company of which he is the Director, has for seeking to overturn this decision by the Employment Tribunal are set out in his Notice of Appeal. The first is that the Tribunal failed to recognise that except for the last three months of her employment, Mrs Morrison considered herself self-employed and was paid gross without deduction of tax, thus she was not entitled to, he uses the word "benefit", but means, I think, compensation.

[3]That alleged failure relates to a gap in the continuous employment of Mrs Morrison, so it was alleged, which was considered at an earlier, differently constituted, Tribunal which sat on the 14 th December 2000 and gave extended reasons on the 23 rd January 2001. Mr Dudson had argued that Mrs Morrison did not have sufficient continuos service to qualify to pursue a claim for unfair dismissal. That Tribunal determined that issue on evidence before it against the Respondent. Although a review was sought by a letter of the 10 th January 2001, that was rejected by the Chairman on the 23 rd January 2001, which was the same date as that upon which the decisions of the earlier Tribunal were promulgated. There has been no appeal to this Tribunal against that decision, either within the 42 days or at all save for this appeal, which questions the basis for the Tribunal's findings at its later hearing.

[4]We pointed out to Mr Dudson and he appeared to accept that if he had not appealed within the time limit prescribed by the rules of 42 days, that is the Employment Appeal Tribunal Rules 1993, Rule 3, Sub-Rule 2 , then he had to accept that that was the decision which bound the later Tribunal. Accordingly, the first ground raises no issue of law.

[5]The second ground is that the Employment Tribunal failed to ensure that Mrs Morrison produced her tax return to prove her tax status. The relevance of this argument was that it was the contention of Mr Dudson that there was, here, an illegal contract. The contract was one which he claimed was intended to defraud the revenue. Accordingly, being an illegal contract she could claim no rights to be paid compensation for any alleged breach of it. The Tribunal itself considered the question of whether the contract was illegal at paragraph 4. It concluded in the final sentence and I quote; "For there to be such a contract (that is an illegal contract) there would have to be an intention on the part of both parties to defraud the Inland Revenue, and we are satisfied that that is not the case in respect of the Applicant",

[6]They went on to observe, in the final sentence of paragraph 5, that it had not been Mrs Morrison's wish to be paid gross. They repeated that same finding in the last sentence of paragraph 9. It was alleged by Mr Dudson on behalf of Flowers Direct that the reason Mrs Morrison was paid gross, was not because of any default on part of the company but because she herself had requested it in order to suit her tax arrangements. It was this contention which the Employment Tribunal, having heard the evidence, rejected.

[7]Accordingly this appears to us to be a finding of fact. We can only interfere with a Tribunal's decision if it appears to us to have been reached by a misdirection of law or is a decision which is perverse in the sense that no reasonable Tribunal could possibly come to the conclusion before it and it was not a permissible option. The argument as we understand it under ground 2 is not that the Employment Tribunal were not entitled to come to the decision to which they came but that before doing so, it was incumbent upon them as a matter of law to make further enquiries. It would have been a simple matter, argued Mr Dudson, for the Tribunal to have contacted the Inland Revenue or to have obtained the correspondence and the tax declarations and the like passing between the Inland Revenue and Mrs Morrison, it should have done so and been in a position to check that its tentative decision was indeed the correct one. Because the Tribunal did not carry out this investigation, there was, he contends, an error of law. This we think, is a misapprehension of the position of an Employment Tribunal. The Tribunal is there to hear the evidence put before it by both parties. The procedure is adversarial. It may be that on occasions a Tribunal will take an active role to assist one party or the other. That is desirable, but the fact that it is desirable does not make it obligatory, and it would have to be obligatory as a matter of law for there to be any force in this part of Mr Dudsons argument.

[8]Accordingly, although we understand the point that he puts to us, it is not one upon which we as an Appeal Tribunal can see that there is any basis for upsetting the decision of the Employment Tribunal.

[9]The third ground was that the Tribunal failed to calculate that Mrs Morrison's actual total time employed was less than one year. That was subject to the earlier decision which, as we have observed, was not appealed.

[10]The fourth was that the Tribunal refused to consider new evidence, which proved that instead of leaving the employment for three and a half months for time with her family, Mrs Morrison was actually employed elsewhere. That too falls foul of the earlier judgment which was not appealed.

[11]The fifth matter, is one which has given us a little more hesitation as to whether there may be an arguable point. It is argued that the Employment Tribunal did not properly calculate the compensatory award. Mr Dudson argues that as a matter of fact, Mrs Morrison accepted a job with a newspaper delivery firm, during daytime hours after her dismissal from the Respondent. If that was so, he argues, she would be working within the self same hours as those in which, had she not been engaged in newspaper delivery, she would have employed in the service of the Respondent. It is ridiculous, he submits, that there should be an award which in effect provides that somebody should be compensated for not working during hours of the day, when the fact of the matter is that she is indeed working during those very same hours.

[12]The way in which the Tribunal dealt with it was this. They took as a starting point the schedule of loss set out by Mrs Morrison's solicitors in January 2001. They noted that she had taken on other work since her dismissal and set out the net earnings that she had received, both from Westland and elsewhere as a cleaner. She had, before she left the service of the Respondent, apparently worked in part in some capacity with a newspaper delivery firm. According to the Tribunal, she:

"Rearranged her job with the newspaper delivery firm but that appears to be a replacement of her Tesco job, with an additional period with a newspaper company and does not represent earnings which should be set against the loss of earnings from the Respondent's"

[13]We note that there is there no clear identification of the hours that she worked for the newspaper company, nor is there any recognition of the hours during which she had worked for Tesco's. We understand the Tesco's work to have been night work. Accordingly, we have been concerned whether the Employment Tribunal might not have sufficiently expressed itself so that the parties might know why it was that they had, in this respect won or lost, that is had the compensation awarded against them or for them, that was in fact awarded.

[14]However we remind ourselves that Mr Dudson told us that he made the points he has made to us to the Tribunal, that the Tribunal heard the evidence and saw the witnesses and that we cannot expect a decision, particularly one which had already run to some five pages before reaching paragraphs 24, 25 and 26, to be anything other than a note of the decision that the Tribunal had reached, without descending into comprehensive detail. We feel that read as a whole it appears a decision which says enough. The opposite is unarguable. It appears to deal with the arguments. It recognises the suggestion that the job with the newspaper delivery firm might in some way reduce the compensatory award, and rejects it for reasons which it sets out albeit briefly. Accordingly we have come to the conclusion that there is no arguable basis here upon which a finding of fact by the Tribunal could be set aside. In summary, the points raised by Mr Dudson are points, which are either covered by a decision of the Employment Tribunal, against which there has been no appeal and which must be accepted, or they are arguments which ultimately are issues of fact. Because this Tribunal can interfere only in respect of matters of law, we feel unable to interfere with this decision and we can see no arguable basis upon which it could be interfered with. It follows that this appeal must be dismissed.