KAREN BURNS v GILL CARRIE T/A FIND HAIR DESIGN [2005] UKEAT 0085_04_2005

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0085_04_2005Case No Appeal No. UKEAT/0085/04Venue 52 MELVILLE STREET, EDINBURGH EH3 7HF
Between
KAREN BURNSAPPELLANTGILL CARRIE T/A FIND HAIR DESIGNRESPONDENT
Before
Lady Smith Miss S B Ayre Miss A MartinDate 20 May 2005
[1]APPEARANCES For the Appellant Mr William Burns, Representative 19 Dean Drive Crossford DUNFERMLINE KY12 8PF SUMMARY UNFAIR DISMISSAL Constructive Dismissal PRACTICE AND PROCEDURE Costs The claimant, a trainee hairdresser employed under a Modern Apprenticeship contract, contended that she had been constructively dismissed and that her dismissal was unfair. The Employment Tribunal held that, far from having breached her contract, the respondent employer had acted entirely properly. The claimant was found to have breached her contract. The claimant was found liable in expenses in the sum of £1,000 in respect of her having brought an action that was wholly misconceived and having conducted it unreasonably and vexatiously. The Employment Appeal Tribunal held that there were no grounds for interfering with the determination of the Employment Tribunal. THE HONOURABLE LADY SMITH: Introduction: This case is about constructive dismissal.[2]The judgment represents the views of all three members who pre-read the relevant papers.[3]We will refer to parties as claimant and respondent.[4]This is an appeal by the claimant against a decision of an Employment Tribunal sitting at Edinburgh, Chairman Ms S Simon, registered with extended reasons on 9 June 2004. The claimant was represented by her father, Mr Burns for most of the hearing before the Employment Tribunal, who also represented her before us. The respondent was represented by Ms S Akhter before the Employment Tribunal but there was no appearance on her behalf in the appeal.[5]The claimant claimed constructive dismissal and the respondent contended that not only had she not breached the contract of employment between them but that the claimant had done so. The respondent also contended that this was a case which was wholly misconceived and had been conducted unreasonably and vexatiously so that an award of expenses should be made in favour of the respondent. The Issues:[6]The essential issue as defined by the Employment Tribunal was whether or not the claimant had been constructively dismissed. They also required to consider whether this was a case in which an award of expenses should be made and if so, of what amount. The Decision Judgment:[7]The Employment Tribunal decided that the respondent had not breached the claimant's contract of employment. No breach of contract having been established the claimant's complaint of constructive dismissal failed and was dismissed. They also determined that the claimant's case was not only not supported by the evidence but was wholly misconceived, entirely without foundation, with no reasonable prospects of success and had been conducted unreasonably, vexatiously and in a manner which led to time wasting. They accordingly made an award of expenses in favour of the respondent. The amount was fixed at £1,000 under reference to the fact that on a conservative estimate, two to three days were wasted during the hearing specifically due to the actions of the claimant's father when he was representing her. The Appeal:[8]The claimant appeals against the Employment Tribunal's decision in its entirety. The Legislation:[9]Section 95(1)(c) of the Employment Rights Act 1996 provides that an employee is to be treated as dismissed by her employer if:
"(c) the employee terminates the contract under which she is employed (with or without notice) in circumstances in which (she) is entitled to terminate it without notice by reason of the employer's conduct."
Rule 14 (1) of the Employment Tribunal Rules of Procedure (Scotland) 2001 provides:
"(1) Where, in the opinion of the tribunal, a party has in bringing the proceedings, or a party or party's representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by a party has been misconceived, the tribunal shall consider making, and if it so decides, may make– (a) an order containing an award of expenses against that party in respect of the expenses incurred by another party; (b) an order that that party shall pay to the Secretary of State the whole, or any part, of any allowances (other than allowances paid to members of tribunals) paid by the Secretary of State under section 5(2) or (3) of the 1996 Act to any person for the purposes of, or in connection with, his attendance at the tribunal."
The Employment Tribunal took these legislative provisions into account. The Facts:[10]The facts of this case are set out carefully, in detail and at some length, in the extended reasons of the tribunal and we do not propose to rehearse them here. It is sufficient for present purposes to record that the claimant was employed by the respondent as a trainee hairdresser at her salon in Dunfermline under the Modern Apprenticeship scheme from 13 April 1999 until 18 June 2001, when she resigned. Her contract included terms in which she had agreed that she would work to the best of her ability, observe her employer's terms and conditions of employment and to be diligent and punctual. She accepted that she had not, however, wholly complied with these requirements in the months immediately prior to her resignation. It is evident from the findings of the Employment Tribunal that there were, in particular, problems regarding unexplained absence from work, regarding the claimant being unfit for work due to the consumption of alcohol and regarding the claimant having lied to the respondent regarding where she was at one time that she did not turn up for work. Eventually the claimant was facing disciplinary charges and was suspended from work.[11]The claimant had various grievances including one relating to the conduct towards her of a male member of staff and some relating to relationships with two other female members of staff. The Employment Tribunal heard extensive evidence regarding these matters and were clearly satisfied that the respondent had dealt with these properly and appropriately.[12]Regarding the matter of expenses, again the Employment Tribunal have dealt with the underlying facts carefully and in some detail. They express the clear view that the claim was wholly misconceived and never had any reasonable prospects of success. They also record a number of matters of concern ranging from the terms in which the claimant's father had written to the local newspaper to his conduct before and at the hearing which included the wasting of a good deal of time on irrelevant matters. The Claimant's Case:[13]The claimant's father sought, in the appeal, to go over much old ground, beginning with the refusal of an earlier tribunal and the one which presided over the hearing on evidence to sustain his motion to strike out the respondent's case. He also seemed to be submitting that the respondent should not have been allowed to make the motions to strike out which she did. He was offended by these motions. He did, though, when it was pointed out to him, acknowledge that the claimant's case had not been prejudiced as the respondent's strike out motions had been unsuccessful. Paragraphs 5, 6, 7 and 8 of the notice of appeal related to the strike out motions.[14]He sought, under references to paragraphs 1, 2 and 3 of the notice of appeal, to argue that the Employment Tribunal should have found that the claimant was unfairly dismissed. The first paragraph was directed to a statement of the law that is relevant in a case where, unlike the present case, it is established that resignation has occurred due to some conduct on the part of the employer. The second paragraph was to similar effect. The third paragraph was directed to a comment in the case of Stanley Cole (Wainfleet) Ltd v Sheridan [2003] IRLR to the effect that a final written warning is an extremely serious matter. A final written warning had been given to the claimant in the present case.[15]Paragraph 9 of the notice of appeal related to the fact that the Employment Tribunal had allowed the respondent to give what was referred to as 'further oral evidence' on the ninth day of the hearing. By this time, the claimant had, it seems, withdrawn instructions from her father. He did, however, confirm that the claimant was given the opportunity to cross examine the respondent. He did not suggest that the respondent gave evidence of any materiality that day. The foundation for this ground of appeal seemed, rather, to be that the claimant's father had not been able to find any authority indicating that it was possible to recall a witness.[16]Finally, Mr Burns sought to submit that there should not have been an award of expenses. It had been his and his daughter's case that the claim was for the protection of employee's rights. If awards of expenses are made, members of the public will, he said, be discouraged from using the services of the Employment Tribunal.[17]He informed us that they had, at the outset, been approached by ACAS and that there had been a subsequent exchange of correspondence in which he tried to settle the claim by securing payment of a sum of money for his daughter. He advised us that the respondent's agents had written saying that they would not make payment of any compensation but, given that they had incurred expenses, they would, if the claim stopped at that stage, not seek an award of expenses. They had gone on, he advised, to say that they would be looking for an award of expenses if the case continued. He had, however, just thought that that was a scare tactic. He had, accordingly, clearly been put on notice by the respondent of her intentions regarding expenses at a very early stage.[18]As regards the argument that had been advanced before the Employment Tribunal to the effect that no award should be made since the respondent had insurance cover for costs, after some discussion, Mr Burns said he accepted that there was no point in suggesting that the respondent had not incurred costs. His argument had proceeded on a misunderstanding of the meaning and import of what had been said in the case of Commissioner of the Metropolitan Police v Logan (EAT/1005/02, unreported) to which reference is made in paragraphs 244 and 245 of the Employment Tribunal's reasons. Conclusions:[19]We can record that, contrary to the experience of the Employment Tribunal, Mr Burns' attitude and demeanour before us were respectful and appropriate. He did not seek to waste time and had obviously tried his best to understand the applicable law.[20]However, nothing said by Mr Burns identified any error of law on the part of the Employment Tribunal. Separately, having carefully considered the terms of the Employment Tribunal's findings, reasons and decision, we cannot fault it. Indeed, it represents a diligent and thoughtful piece of work in the course of which the relevant law is properly understood and appropriately applied.[21]The appeal will, therefore, be dismissed.