Appeal No.	 EAT/853/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 December 1996

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR J A SCOULLER
MR P M SMITH

HOME CARE CONSTRUCTION LTD	APPELLANT

MR S HARVEY	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS E CAMERON
SOLICITOR APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME	

	MR JUSTICE MORISON (PRESIDENT):  The purpose of this hearing is to determine whether the employers in this case have an arguable point of law in their appeal against a decision of an Industrial Tribunal held at Southampton on 18 June 1996 which concluded unanimously that the Applicant had been unfairly dismissed.

	This is an example of a case where the employers are in a small way of business, their relationship with their staff is somewhat informal and, possibly, that may be partly the cause of the trouble with which they are now confronted.

	The application was, as I have indicated, for unfair dismissal and the first question which the Industrial Tribunal had to decide was whether there had been a dismissal at all.  The circumstances giving rise to the alleged dismissal are fully set out in the Industrial Tribunal’s decision.  It all centred, as they corrected indicated, on what took place during a telephone conversation on one particular evening on, I think, 8 January 1996.  That was a telephone conversation between Mr Jennings, who is the proprietor of the business and the Applicant.  The Applicant had asked Mr Jennings for a lift that morning but had been refused it.  It was a wet day.  During the course of the telephone conversation words were exchanged which led the Tribunal to conclude that Mr Jennings had dismissed the Applicant on the telephone, paragraph 18 of the decision.  The precise words that were spoken were, of course, entirely a matter for determination by the Industrial Tribunal.  It will be appreciated that the line between a dismissal and words which do not have the effect of a dismissal, is sometimes a very narrow one.  It is also clear that the test of whether there has, in fact, been a dismissal, where the facts are in dispute, is not whether the individual believed that he had been dismissed but an objective test.  

	Against that background, I turn to the findings of fact made by the Industrial Tribunal.  According to the Applicant, he had had a discussion in the telephone conversation about guaranteed payments in relation to a booklet he obtained from the Job Centre.  The Tribunal say this:

“According to the Applicant, Mr Jennings said, ‘If that is how you feel, I can no longer  employ you’.”

It seems to us that that language is quite consistent with there being a dismissal even though the “if” could be construed as being conditional.  They go on:

“That was the end of the conversation and the applicant understood that he had been dismissed.”

There was then evidence from the friend of the Applicant that she had telephoned Mr Jennings immediately afterwards and asked if he had sacked the Applicant.  Mr Jennings was reported as saying:

“‘No, I can no longer offer him employment.  She asked what the difference was, but Mr Jennings did not reply.”

	The Tribunal were entitled, it seems to us, to conclude that that was supportive of the Applicant’s belief that he had been dismissed.  Indeed, that was his understanding at the end of the conversation.

	According to the evidence of Mr Jennings, the Applicant wanted a lift to work.  Mr Jennings could not guarantee it and this is the account Mr Jennings gave, he said:

“I cannot continue to employ you if you want a guaranteed lift to work.”

	We can quite understand an argument that that conversation itself was not capable of amounting to a dismissal but if the words were “I cannot continue to employ you as you want a guaranteed lift to work”, that plainly would be capable of constituting words of dismissal and there are a whole series of different permutations and possibilities and much would depend on the conditionality or otherwise of the word “if” in the sentence that Mr Jennings was alleged to have spoken.

	The Industrial Tribunal at paragraph 16 go on to say:

“Whichever version of the disputed telephone conversation we accept, we are satisfied that at the end of the conversation the applicant reasonably understood that his employment had been terminated.”

	Miss Cameron has argued first of all that that statement cannot be right, that on the version of the employer there was no dismissal.  Secondly, she says that they have adopted a subjective view, that is, asking what the Applicant believed and that they ought not to have concluded on the material before them that there had been a dismissal.  We consider that the argument that they had approached the matter subjectively, instead of objectively, is not correct in the circumstances.  The force of the word “reasonably” is to show that the Tribunal have applied an objective test to the Applicant’s state of mind.  That is all that is required as a matter of law.

	In relation to whether there was material on which they could conclude there was a dismissal, there is no doubt, as it seems to us, that there was material on which they could so conclude.  As we have already indicated, the conversation with the Applicant and with the friend of the Applicant, were both conversations confirmatory of a dismissal situation.  

	That leaves only the statement that “whichever version of the disputed telephone conversation we accept” about which complaint is made.  It seems to us that there are grounds for criticising that statement, but that would depend precisely on the extent to which the word “if” in the employer’s statement really was truly conditional because, as we have indicated, “I cannot continue to employ you as you want a guarantee lift to work” would be a statement of dismissal.

	Accordingly, we ought not to search too astutely to find fault with that which has been expressed by an Industrial Tribunal.  There were three Members of the Tribunal, all of whom have obviously looked at this case and all of whom, having heard the evidence, and seen the witnesses, concluded that there was a dismissal.  We can only interfere with a decision if there is a misdirection in law.  We are not persuaded that there is any arguable misdirection in law, despite what Miss Cameron has ably submitted to us and in the circumstances we are bound to dismiss this appeal.