PAUL D’AMBROSIO T/A LOTHIAN POWER CLEAN v MRS E MCGUGAN [2005] UKEAT 0065_04_2903

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2005] UKEAT 0065_04_2903

Case No Appeal No. UKEAT/0065/04

Venue 52 MELVILLE STREET, EDINBURGH EH3 7HF

Between

PAUL D’AMBROSIO T/A LOTHIAN POWER CLEANAPPELLANT

MRS E MCGUGANRESPONDENT

Before

Lady Smith Mr A J Ramsden Dr W M Speirs

Date 29 March 2005

[1]APPEARANCES For the Appellant Mr P Santoni, Solicitor Of- Messrs Freelands Solicitors 139 Main Street WISHAW ML2 7AUt For the Respondent Mr R Brown, Solicitor Of- Messrs Hay Cassels Solicitors Almada Chambers 95 Almada Street HAMILTON ML3 OEY SUMMARY UNFAIR DISMISSAL Whether claimant dismissed or resigned: whether or not Tribunal calculated compensation correctly, taking all relevant material into account. THE HONOURABLE LADY SMITH: Introduction This case concerns a claim for unfair dismissal.

[2]The judgment represents the views of all three members who pre-read the relevant papers.

[3]We will refer to the parties as claimant and respondent.

[4]This is an appeal at the instance of the respondent against a decision of the Employment Tribunal sitting in Glasgow which was registered on 2 July 2004. The Chairman was Mr J M Hendry, who sat with two members. The claimant was represented by her solicitor, Mr Brown and the respondent was represented by his solicitor, Mr Santoni. She claimed that she had been unfairly dismissed from her employment as an operations manager on 23 May 2002. Background

[5]The first and, it seemed, most contentious issue between the parties was that of whether the claimant had been dismissed or had resigned. The background was, as is evident from the Tribunal's findings and reasons, one of an increasingly tense relationship between the claimant and respondent culminating in a meeting on 8 February 2002 at the end of which the claimant was upset and left the office saying and doing the things set out at a paragraph 14. Thereafter there were communications between them directed at ascertaining her state of health and on 17 May 2002, the respondent wrote to the claimant asking her to attend a meeting to discuss not only her state of health but several matters which clearly concerned her conduct. She did not attend the meeting fixed because her solicitor told her not to do so, something of which the respondent was not aware. The respondent sought to fix a further meeting for 24 May 2002 and wrote requesting her to attend the meeting, indicating that he would regard it as gross misconduct if she failed to do so. Her solicitor wrote indicating that inadequate notice was being given of the meeting and drawing the respondent's solicitor's attention to a copy of the letter of 13 May 2002, hereinafter referred to, which had been sent, originally, to the wrong address. The Issue

[6]There was no doubt that the claimant's employment had come to an end when her solicitor was advised, in a faxed letter dated 23 May 2002 (A14), from the respondent's solicitor, that they were treating her as having resigned, with immediate effect. That letter had been prompted by their receipt, that day, of a letter dated 13 May 2002 from the claimant's solicitor (A9).

[7]The decision of the Tribunal on this issue was in the following terms:

"The first issue for the Tribunal to decide was whether the applicant had resigned or been dismissed. The respondents relied on the terms of the letter of 13 May (A9) from the applicant's solicitor Mr Greener. We had no difficulty in reaching the conclusion that the applicant had been dismissed by the respondent. The letter which is no doubt open to criticism does not state that the applicant is resigning. It states that 'given the circumstances she understandably would not wish to be employed by you'. It goes on to suggest that their client would be open to termination of employment for an agreed settlement. It is no more that a clumsy invitation to enter into discussions. We have some sympathy with the respondent in so far as the applicants actions when leaving work on 7 February were ambiguous as to her likely return but the fact that she continued to submit Medical Certificates, seek Sick Pay and agree to a medical examination should have been ample evidence that she still regarded herself as an employee."

Submissions for the Respondent

[8]Mr Santoni, solicitor, who appeared for the respondent, submitted that the Tribunal's decision that the claimant had been dismissed was perverse because their reasoning showed that they had not taken into account all the relevant evidence. In particular, they were obliged to take account of the claimant's history of illness, of her being off work from 28 December 2001 until 7 February 2002 and then again from 8 February 2002 until 8 July 2002, all due to illness, of her conduct when leaving the office after the meeting on 8 February, of her husband seeking a pay increase so as to enable his wife to stop work, of him having indicated that she would not be returning to work together with the letter of 13 May and the whole chain of correspondence. If they had done so, he submitted, they would have seen that the evidence clearly indicated that the claimant had no intention of returning to work. He accepted that the letter of 13 May 2002 was not, of itself, sufficient evidence of resignation. It required, however, to be looked at in the context of the evidence as a whole.

[9]Mr Santoni then submitted that even if the claimant had been dismissed, the Tribunal had erred in their finding that the dismissal was unfair. It was not clear that they had found that it was a conduct dismissal at all, since they stated that the reason for the dismissal was the respondent's misinterpretation of the letter of 13 May 2002 and even if it was, they were wrong to have found "We had no hesitation that in the circumstances here where the applicant had not yet been able to hear or attempt to rebut the various allegations against her and where the respondent had apparently acted on legal advice the dismissal was unfair." because the claimant had been invited to attend two meetings and had not attended them. They failed to explain why these were not reasonable opportunities for the claimant to hear and attempt to rebut the allegations against her.

[10]Mr Santoni's third submission, which reflected his third ground of appeal did not add anything to his submissions in support of his first ground. Whilst he drew attention to the paragraph 25 being in terms that the reader might have thought the claimant's solicitor gave evidence when he did not, that error, if error it be, did not give rise to any substantive submission to separate effect.

[11]Mr Santoni submitted fourthly that since it was plain that the claimant did not intend to return to work, there should have been a reduction in compensation to the extent of 100%. He did not present any argument in support of his fifth ground of appeal.

[12]As regards his sixth ground of appeal, Mr Santoni submitted that the Tribunal's calculations were wrong because they failed to take account of the clear evidence as to the claimant's earnings post dismissal that was contained in her P60 (A22). Submissions for the Claimant

[13]Mr Brown, solicitor for the claimant, submitted that it was evident from the whole terms of the Tribunal's extended reasons that they had taken account of all relevant matters when considering whether the claimant had been dismissed or had resigned. It was not perverse of them to determine on that evidence that she had been dismissed. Regarding the matter of fairness, Mr Brown accepted that it was not spelt out in terms by the Tribunal that they regarded the dismissal as being on account of the respondent's view of the claimant's conduct. However, it could, it was said, be gleaned from the explanation that they do give and from their reference to s.98(2)(b) of the Employment Rights Act 1996, that that was what they did. It was then open to them to take the view that the respondent had simply not given the claimant sufficient opportunity to explain herself and they had latched onto the letter of 13 May 2002 in a way that involved them going too far too fast.

[14]Regarding the apparent oddity of the Tribunal's reference to the claimant's solicitor's understanding of her intentions in circumstances where he had not given evidence, Mr Brown explained that the claimant herself had offered evidence to that effect.

[15]Regarding the submission that the deduction to allow for the possibility of the claimant not returning to the respondent's employment in any event, Mr Brown submitted that the extent of the deduction was a matter for the Tribunal's discretion and ought not be interfered with.

[16]Regarding the submission in respect of the calculations carried out by the Tribunal, Mr Brown did not, ultimately, seek to defend what they had done and seemed to accept that it was impossible to reconcile their figures with that which appeared on the P60. Decision

[17]We are not persuaded that the Tribunal's decision was perverse either as regards the issue of dismissal or resignation or as regards that of whether or not the dismissal was unfair. Whilst the reasoning contained in paragraph 31 is not, perhaps, a model of clarity, it is evident that they did take account of the claimant's conduct on 8 February and they gave consideration to the content of the correspondence that ensued thereafter. However, more importantly, the respondent's argument taken at its highest was not that the history prior to the letter of 13 May 2002 showed that the claimant resigned in terms of that letter but that that history showed that she was intending to do so. He did not submit that the letter of 13 May was itself to be read as a resignation letter and we do not see that evidence of an earlier intention of resigning at some unspecified date and in some unspecified circumstances could be relied on as elevating the letter to having the status that, for the respondent's resignation argument to be successful, it required to have Accordingly, even if the Tribunal had ignored any of the earlier history, that would not have vitiated their decision on this matter.

[18]As regards the matter of fairness, we do not see that the Tribunal erred. They have taken into account the circumstances of the dismissal which were that prior to it, the claimant had had one opportunity to attend a meeting to discuss the points set out in the respondent's letter of 17 May 2002. Whilst it is the case that from the respondent's standpoint, all that they were aware of was that she had attended for that meeting without giving any reason (they not having received her solicitor's letter of 20 May 2002 – A11), their own reaction was to afford her a second opportunity, as is clear from their letter of 22 May 2002 (A12) which called the claimant to a further meeting for 24 May. In the event, as we have already noted, rather than go ahead with that planned meeting, they reacted to the letter of 13 May 2002, received on 23 May, by dismissing her. In these circumstances, we consider that the Tribunal were well entitled to find as they did. In one respect they appear to have erred, that is in referring at line 29 to the respondent acting on legal advice. We consider that they must mean to refer to the claimant and we cannot see that that matter was of any relevance, since the respondent was unaware of it. That does not, however, in our view, detract from the central matter which is that in the whole circumstances as we have summarised them, they were entitled to hold that the dismissal was unfair.

[19]As regards the submission regarding the deduction that should have been made from the claimant's compensation to allow for her not returning to the respondent's employment in any event, we agree with Mr Brown. The extent of any such deduction so as to achieve a just and equitable result is within the Tribunal's discretion. Mr Santoni did not submit that the failure to make a 100% deduction was perverse nor did he submit that no reasonable Tribunal could have failed to do so. We are not persuaded that it would be appropriate for us to interfere.

[20]The Tribunal's compensation calculations do, however, give us cause for concern because the figures brought out on the P60 to which we have referred do not appear to have been taken into account and no explanation is given by the Tribunal for their not having done so. It appears that, if they were, then the award would fall to be valued at £1288 before applying the deduction of 25% not at the significantly higher figure brought out by the Tribunal. We note the issue that is recorded at the end of paragraph 26 but its existence highlights even more, in our view, the need to take account of clear documentary evidence such as that which is contained in the P60. We will, accordingly, allow the appeal to the limited extent of remitting back to the same Tribunal for a rehearing only of the issue of what compensation should be awarded to the claimant, which award will be subject to the 25% deduction already determined.