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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Home County Property Centres Ltd (t/a Philip Lodges Estate) v Clarke [2002] UKEAT 0527_02_3110 (31 October 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/0527_02_3110.html Cite as: [2002] UKEAT 527_2_3110, [2002] UKEAT 0527_02_3110

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APPEARANCES

 

For the Appellant	MR DAMIAN BROWN (of Counsel) Instructed by: Messrs Kagan Moss & Co Solicitors 6 Coldbath Square Rosebery Avenue London EC1R 5NA


 


HIS HONOUR JUDGE J BURKE QC

1. This is the Preliminary Hearing of the employers' appeal against the Decision of the Employment Tribunal sitting at London (South), chaired by Mrs A Martin and sent to the parties with Extended Reasons on 5 April 2002. By that Decision the Tribunal found that the employee, Mr Clarke, had been unfairly dismissed.
2. We propose to let this appeal go through to a full hearing but on very limited and circumscribed grounds. In order to explain those grounds we need to give a short judgment.
3. Mr Clarke was employed as Branch Manager of a branch of the employers' business of estate agency. He was working under a contract of employment which provided for 5 weeks notice to terminate.
4. The Tribunal found that from October 2000 to June 2001 there were negotiations about a new fixed-term contract for two years. Unusually, perhaps, it was the employers who wanted to procure such a commitment from the employee and the employee who was reluctant to agree to it. It is plain that the inability to achieve agreement, as the employers saw it, was something about which they were unhappy.
5. There were other disagreements. On 13 May 2001 the employers gave Mr Clarke, the employee, a warning about disruptive behaviour, although there was no disciplinary process or even discussion or meeting about the matters in respect of which they gave him the warning. On 17 May the employee set out in a long letter why he had done nothing wrong and why he did not accept the warning; and on 23 May the employers responded to that letter from the employee.
6. Meanwhile, the employers had discovered a small number of emails, the Tribunal found, sent by the employee to a junior employee which are crude, albeit more childish (one might justifiably comment) than anything else. There was nothing done about that at the time. There was no confrontation and no disciplinary procedure in relation to that.
7. While in June, a month after the discovery of the emails, the employee was on holiday. His employers sent a letter terminating his employment on 5 weeks notice. The letter said:

"Certain matters which have come to light recently would each, in isolation, have rendered you liable to instant dismissal"

but gave no further details. They were asked to give further details; and in a letter of 29 June they set out a whole host of very general criticisms without any particularity; in neither letter was there any express reference to the emails.

8. The employee claimed that he had been unfairly dismissed. At the Tribunal hearing the employers put forward as the main reason for his dismissal the sending of the emails, albeit there had been no disciplinary process in relation to them, no confrontation about them and no meeting between employer and employee in respect of them. We are tempted to say, although perhaps we should not at this preliminary stage, that there is not very much in them anyway.
9. The Tribunal found as a fact, in paragraph 7 of their decision, that the real reason for the dismissal was not the sending by the employee of the emails but the failed negotiations about a revised fixed term contract.
10. While the Notice of Appeal and the Skeleton Argument suggest that there was no finding of a reason or that in making that finding the Tribunal was substituting its own view for that of the employers, Mr Brown, on behalf of the employers today has fairly and properly accepted that that finding was not perverse, was one which the Tribunal were entitled to reach, and is not one the employers can go behind. That acceptance in itself, which does not involve a concession beyond Mr Brown's proper performance of his duty (because we would have taken precisely the same view without the concession) of itself eliminates a substantial part of the Notice of Appeal as being unarguable.
11. The Tribunal made that finding, and all their other findings, having heard only the employers. They did so because, at the conclusion of the employers' case, that case having of course gone first because this was a straight and ordinary and not a constructive dismissal case, a submission of no case was made by Counsel on behalf of the employee and the Tribunal concluded that they were able to reach the findings that they did without hearing from the employee.
12. There are many authorities which say that the circumstances in which a Tribunal can accept the submission of no case rather than hearing both sides must be exceptional and that it is very rare that they should do so; but there are cases in which the employers' position at the end of their evidence is obviously hopeless and the Tribunal are entitled in such circumstances to accept a submission of no case and make their decision on the basis of what the employers have said alone.
13. We do not think that, as a free-standing point in this case, it is arguable that the Tribunal should not have accepted the submission of no case. However, Mr Brown has made a point today which is, at least in part, in Ground 8 of the Notice of Appeal, and which we regard as arguable. It is the only point which we regard as arguable in this appeal. It is this. The Tribunal, having found what the real reason for dismissal was, says Mr Brown, did not go on to consider whether that reason was a potentially fair reason within section 98 (1) of the Act and in particular whether it amounted to some other substantial reason, and did not go on to consider whether, if the reason was a potentially fair reason, it was fair or unfair to dismiss for that reason.
14. The Notice of Appearance in this case does refer to some other substantial reason so that the point was, to use a word which is shorthand only in this setting, "pleaded", and it is arguable that, at least theoretically, the failure of the negotiations might be said to have amounted to some other substantial reason, in which case the Tribunal would have had to have gone on to consider whether it was fair or not to dismiss for that reason.
15. The Tribunal did consider fairness but appear to have considered fairness, or arguably appear to have considered fairness, only in the context of the emails which was not, on their findings, the reason or the principle reason for the dismissal.
16. If the Tribunal had to consider fairness, as they did not in the context of what they found to be the real or principle reason for the dismissal, it may have been that they would have wanted or ought to have wanted to have heard both sides so that, in the context of the particular arguable ground of appeal which we have identified, we can see that it is arguable that the Tribunal ought to have heard what the employee had to say. In that context then, but not as a free-standing point, the criticism that the Tribunal only heard one side has an arguability to it.
17. Mr Brown has, and so does the Notice of Appeal, made some other points. Probably we have, in what we have said, already given enough indication of why they are not arguable points. He has pointed out, or he has suggested, that the Tribunal did not properly approach the burden of proof in that they put a burden of proof on the employers in respect of fairness. We do not think that it is arguable that they did make that mistake but in any event, on their findings, they may have been looking at fairness in the wrong context.
18. Mr Brown submits that the Tribunal came to a perverse decision in concluding that there should be a reduction of 25% for contributory fault because the Tribunal appear to have come to the conclusion that there had been no previous warnings when there had been a warning.
19. In paragraph 4 the Tribunal say that "no complaints had been received from customers and no complaints about profitability" and that there was no problem with the Applicant's performance. In so far as the warning appears to have been based on complaints about his performance perhaps that finding is not wholly accurate; but in their finding as to the reduction of 25% for contributory fault the Tribunal do not seem to have been relying in any sense on the absence of any warning – certainly they do not say so – and we see nothing arguably perverse about their decision as to contribution; at least in the sense that it can be attacked as being perverse by the employer.
20. Thus, in our judgment, the only argument which can be run at a full hearing is that which we have identified, which arises out of paragraph 8 of the Notice of Appeal. The other arguments put forward in the Notice of Appeal do not, in our judgment, contain any arguable grounds.
21. Amended Notice of Appeal in 14 days to be approved by me. 2 hours, Category C. Standard Skeleton Arguments directions.