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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Nationwide Planning Ltd v Fleming [2003] UKEAT 0940_02_0703 (7 March 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0940_02_0703.html Cite as: [2003] UKEAT 0940_02_0703, [2003] UKEAT 940_2_703

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APPEARANCES

 

For the Appellant	MR H R MARTIN (Representative)


 


MR JUSTICE KEITH:

1. This is the preliminary hearing of an appeal brought by Nationwide Planning Ltd ("the Company") against a finding of unfair dismissal by an Employment Tribunal held at Ashford in favour of Mrs Teresa Fleming. The facts which the Tribunal found are set out in paragraphs 4 to 12 of its extended reasons, and the reasons why the Tribunal found Mrs Fleming's dismissal to have been unfair are set out in paragraphs 17 and 18 of its extended reasons. It is unnecessary to repeat those findings and reasons here. The Tribunal went on to conclude that Mrs Fleming had contributed to her dismissal, and her contribution was assessed at 40%.
2. The Notice of Appeal and the various other documents submitted by the Company have been drafted by the Company itself, and they do not identify with the precision which might have been expected of lawyers what errors of law are alleged on the part of the Tribunal. But one identifiable criticism which is made of Mrs Fleming or her advisers is that the Company was only provided with the evidence on which Mrs Fleming would be relying two days before the hearing. The Company's remedy was to apply for a postponement of the hearing if it was thought that the Company was really prejudiced by the late service of the evidence, and the Company did not do that. In any event, the case was a simple one. The Company was being represented by Mr Hans Martin, its managing director, whose secretary Mrs Fleming had been, and who therefore knew all about the case. Two days was, in the circumstances, sufficient to enable him to factor into his preparation of the case the new material.
3. However, the complaint made against the Tribunal in this context is made in documents which were filed with the Registrar of the Employment Appeal Tribunal yesterday afternoon. The complaint is that, although Mr Martin had had the time to prepare a rebuttal to the evidence which had been served so late on him, the Tribunal did not consider the rebuttal which he prepared, because it was not prepared to look at the documents in which that rebuttal was contained. Assuming that to be correct, however, from what Mr Martin has told us today, we do not believe that the evidence to which the rebuttal was addressed was evidence which went to the issues in the case. The issues in the case were how Mrs Fleming had behaved at the meetings on 25 and 26 July 2001, and whether or not that behaviour had justified her dismissal. The new material did not relate to those issues at all.
4. The Notice of Appeal makes the point that the statements of two witnesses, which were provided to the Tribunal by Mrs Fleming's solicitors, were not referred to in the Tribunal's reasons, even though the statements of two other witnesses, who likewise were not called to give evidence, were referred to in the Tribunal's reasons. Whether or not the Tribunal took into account the statements of the two witnesses who it did not mention, we have no reason to suppose that those statements would have undermined the findings of fact which the Tribunal made. Mr Martin does not say that they would.
5. The Notice of Appeal criticises the Tribunal's findings relating to the letter of 23 July 2001, but the letter was relevant only to how the meetings on 25 and 26 July actually came about. Whether the Tribunal's criticism of the letter was well-founded or not, therefore, it does not bear on the critical question whether the Company acted fairly in summarily dismissing Mrs Fleming for what she said at the meetings on 25 and 26 July, or how she spoke at them. The Notice of Appeal also criticises the Tribunal for reaching what Mr Martin describes as "subjective opinions" about how he behaved, but that was exactly what the Tribunal was there to do.
6. The only point of real substance which the Notice of Appeal raises is that the Tribunal erred in finding that the meeting on 26 July was not a disciplinary hearing. But the Tribunal found that the purpose of both meetings had been for Mrs Fleming to air her grievance with Mr Martin that he had unfairly criticised her work. There was an express finding in paragraph 9 that that had been the purpose of the meeting of 25 July, and there was an express finding in paragraph 18 that that had been the purpose of the meeting on 26 July. If Mr Martin's evidence in the Tribunal had been otherwise, the Tribunal did not believe him.
7. The fact that it is claimed that Mrs Fleming attempted to have someone present at the meeting on 26 July does not mean that that meeting must have been a disciplinary hearing. It would have been equally possible for her to want someone to be present when she was airing her grievance. We note that Mr Martin claims that Mrs Fleming was told on 25 July that she could be dismissed for aggressive and insubordinate behaviour. But even if she was told that (and the Tribunal did not find that she was), that is very different from being told that the meeting on 26 July was to consider whether she would be dismissed for that behaviour. In short, therefore, there is in our view no basis for asserting that the Tribunal's finding that the meeting on 26 July was not a disciplinary hearing was a finding which no Tribunal could reasonably have reached.
8. The Company's next attack on the Tribunal's decision relates to the compensation which the Tribunal awarded Mrs Fleming. The grounds advanced for challenging the Tribunal's finding of fact that Mrs Fleming had made reasonable attempts to secure alternative employment are misconceived. The Tribunal was entitled to rely on hearsay evidence. It is true that the Tribunal erred in thinking that Mrs Fleming had used the reference of 20 January 2002 to obtain her new job. After all, she started that job on 10 September 2001. Mrs Fleming, though, had relied on the reference in the Tribunal merely to show that Mr Martin's criticism of her work was unfair and the Tribunal's error cannot be said to have undermined its finding that Mrs Fleming had done what she could to find alternative work.
9. Nor, in our view, did the Tribunal err in the way in which it factored Working Family Tax Credit into the award. The Company accepted in its letter to the Tribunal of 22 July 2002 that it had been paying Working Family Tax Credit to Mrs Fleming, though it called the payment "Family Income Benefit". The fact that the Company may have been unable to recoup the amount which it had paid to Mrs Fleming, since it employed less than five people, is unfortunate from the Company's point of view, but Mrs Fleming was entitled to be compensated for what she had lost, and that included her Working Family Tax Credit. As it is, the Tribunal must be taken to have found that her Working Family Tax Credit would have continued for some time after her employment came to an end. And to the extent that the Company claims that the Tribunal failed to give credit for the Working Family Tax Credit which Mrs Fleming was paid in her new job, that is simply wrong: paragraph 21 of the Tribunal's reasons shows that sums which were deducted from her award to reflect the income from her new employment included Working Family Tax Credit.
10. The point was made today, as we understood it, that Mrs Fleming received less Working Family Tax Credit from her new employment than she was entitled to, and that she thereby failed to mitigate her loss by applying for the appropriate Working Family Tax Credit. That is not a point which we can assess, but the fact remains that Mr Martin accepts that the point was not made to the Tribunal. He says that he was prevented by the Tribunal from making the point to it, but he could have made the point to Mrs Martin in his cross-examination of her to the effect that during her new employment she had failed to mitigate her loss by applying for the appropriate Working Family Tax Credit.
11. In the documents submitted yesterday afternoon, Mr Martin argued that the Tribunal should not have found that Mrs Fleming's salary was £180 a week, and that, even if it had been, her net salary on that gross income would have been £163 a week, rather than £130 which the Tribunal used to calculate her award. We do not know what the evidence before the Tribunal was on these topics, but Mr Martin accepts that Mrs Fleming had earned £180 a week gross during the five weeks immediately preceding her dismissal, and on the assumption that that was the evidence before the Tribunal, it would have been open to the Tribunal to treat that as being what her average weekly gross earnings had by then become. We were minded, in the light of what Mr Martin says her net salary would have been on a gross salary of £180 a week, to increase Mrs Fleming's award, but we have resisted the temptation to do that.
12. Finally, Mr Martin relied in the documents which he submitted yesterday on a novel procedural failing on the part of the Tribunal. The hearing of the claim was originally fixed for 19 February 2002. That was inconvenient for Mr Martin and he requested the Tribunal to arrange a new date. A new date was fixed for 4 July 2002, which was when the hearing actually took place. Mr Martin's point is that that was an unreasonably long time ahead, and it meant that Mrs Fleming's ultimate award was increased by what Mr Martin describes as "an unreasonable amount". That argument is completely fallacious. The Tribunal found that, by 20 April 2002, Mrs Fleming's income had returned to its pre-dismissal level. Accordingly, no award was made for any supposed losses after that date.
13. For these reasons, therefore, the appeal does not raise any arguable errors of law on the part of the Employment Tribunal. Accordingly, it should not go forward to a full hearing and it is therefore dismissed.