GAMESTEC LEISURE LTD v MR A STONE [2003] UKEAT 809_02_1104

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 809_02_1104Case No Appeal No. EAT/809/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
GAMESTEC LEISURE LTDAPPELLANTMR A STONERESPONDENT
Before
His Honour Judge Birtles Mr K EdmondsonDate 11 April 2003
[1]APPEARANCES For the Appellant Mr Malcolm Davies Solicitor Messrs Andersons Solicitors Queen's Bench Chambers The Rope Walk Nottingham NG1 5EJ For the Respondent Mr Anthony Stone The Appellant in person HIS HONOUR JUDGE BIRTLES Introduction This is an appeal from the Decision of an Employment Tribunal sitting at London Central on 17 December 2001. The Decision was sent to the parties and entered on the register on 25 June 2002. We note that that is some seven months after the actual Decision. The Chairman of the Tribunal was Mr T D Russell and the members were Mr D C Buckley and Mr M E Blick. The Employment Tribunal Decision[2]The Employment Tribunal decided that Mr Stone had been unfairly dismissed on 29 September 2001 and it then went on to award compensation, which included pay in lieu of notice, holiday pay and lost earnings together with smaller matters of contract, such as overtime and payment for a rucksack. The grounds of appeal[3]The grounds of appeal are set out at paragraph 6 of the Notice of Appeal, page 6 of the bundle, and are in respect of three compensatory elements, first, an ongoing net loss between 20 October and 17 December 2000, second, three months further net loss without employment, and third, a continuing shortfall of £65 a week for a further twelve weeks, Mr Stone having obtained alternative employment, making a total of £4,102.41.[4]The ground of appeal is really put in two ways. First, it is said that Mr Stone had in fact resigned by letter dated Friday 28 September 2001, page 25 in the bundle, which letter was received by Mr Vaux, his line manager, on Saturday 29 September and that that resignation was received prior to the dismissal by Mr Vaux on the Saturday morning. It would follow, therefore, that the compensatory element of the award should be limited to 19 October 2001, which was the date that Mr Stone gave in his resignation letter: see Harris -v- Russell Ltd -v- PSG Slingsby [1973] IRLR 221 .[5]The difficulty with that argument is first that Mr Vaux did not give evidence before the Employment Tribunal, and, second, the Tribunal did hear Mr Stone give evidence and be cross- examined but it made no findings of fact at all in relation to:(a) whether the resignation had taken effect before Mr Stone was dismissed, and(b) if it had, what effect that had on the compensatory award.[6]The second way of putting the appeal is that even if Mr Stone was dismissed before Mr Vaux had received the resignation letter, it still indicated Mr Stone's intention to leave on 19 October and nothing had been changed by the dismissal. Again, that argument that there was a limitation on the compensatory element to 19 October 2001, does not appear anywhere in the reasoning of the Employment Tribunal. I think we can safely say that it does not appear anywhere in the Decision that the Tribunal considered the effect of the resignation letter either in limiting the award of 19 October or whether it was a matter they should take into account in exercising their discretion to make an award which was just and equitable in all the circumstances, having regard loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer: see section 123(1) of the Employment Rights Act 1996 .[7]Mr Davies, for the employer, also challenges the Decision of the Tribunal to award Mr Stone four weeks pay in lieu of notice: Decision paragraphs 10 and 12. At paragraph 10 they say:
"In connection with the wrongful dismissal claim the employment tribunal found that the Applicant was entitled to four weeks' notice and had only been paid for one and that he was entitled to be paid for outstanding notice in lieu as well as accrued [other pay]."
We can find no basis and no finding of fact by the Tribunal as to how they came to that conclusion, because at page 23 of the bundle, the contract of employment makes it clear that where the employee terminates the employment, he is required to give four weeks' notice in writing, but where the company terminates the employment, and where the employee has been employed for less than two years (which is Mr Stone's case) only one week's notice is required. We therefore cannot understand the reasoning of the Tribunal in its conclusion in paragraph 10 of its Decision, that Mr Stone was entitled to four weeks' notice. That simply flies in the face of the written factual provisions, and it appears to us, therefore, that this Tribunal has fallen into error for those reasons in assessing compensation.[8]We have considered the question of what we should do. In all the circumstances, we propose to remit this case to a differently constituted Tribunal to assess compensation only, the dismissal having been admitted at the Employment Tribunal. We would expect the company to call Mr Vaux, who is the only person on the employer's side who can give evidence, about the question of the circumstances of the dismissal, whether he had knowledge of the resignation letter, and whether he had received it at the time that he dismissed Mr Stone.[9]There appears to us to be some conflict about this. We appreciate that Mr Vaux has left the company's employment, but that does not preclude him being called. We find it very difficult to see how an Employment Tribunal could deal with the questions that have been raised in the Notice of Appeal without the assistance of Mr Vaux.[10]We note that Mr Vaux's diary was ordered to be produced by the Employment Tribunal, or at least an Order for disclosure made of it. While the offer of a disclosure was made, it would appear that only one page of that diary was produced at the Tribunal hearing: page 30 in our bundle. There is quite clearly a dispute as to whether that is a genuine page and, in any event, we order the production of the whole of Mr Vaux's diary for the months of September and October 2001 for the hearing of the Tribunal. Clearly, if the diary no longer exists, then that is a matter that can be dealt with by the Employment Tribunal.