Appeal No. EAT/880/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 25 July 1995

	Before

	THE HONOURABLE MR JUSTICE TUCKEY

	MR J D DALY

	MR J H GALBRAITH CB

LEEDS PRIVATE HOSPITAL LTD	APPELLANTS

MRS L SAYLES	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	DR G LIGHTNING
Managing Director

	MR JUSTICE TUCKEY:   Following a hearing on 21 June 1994 the Industrial Tribunal at Leeds found that the Applicant, Mrs Sayles, had been unfairly dismissed by her former employers, the Leeds Private Hospital Ltd.  They made certain awards of compensation in her favour as a result of that decision.  The hospital appealed that decision to this Tribunal on grounds which we will come to in a moment.  

	The appeal was listed for a preliminary hearing before His Honour Judge Hull QC and two lay members on 25 November 1994.  At that hearing the Appellant hospital did not attend and the appeal was dismissed.  It is clear that a day or so before the Appellants, who had wanted to be represented by their Chairman and Managing Director, Dr Lightning informed this Tribunal that, as a result of his being required to attend Leeds Crown Court that day for another case, he would not be able to attend.  The Tribunal nevertheless proceeded to consider the appeal in his absence.  Subsequently Dr Lightning asked for a review of the decision because there were good reasons for his not being able to attend.  We have proceeded today as if this were a preliminary hearing and have not therefore, sought to review the decision made on 25 November 1994.

	So we have only been concerned, as we tried to make clear to Dr Lightning from the outset of this hearing, to consider whether the Industrial Tribunal arguably made any error of law which merits this appeal going forward to a full hearing.

	The facts have to be considered under two headings.  Firstly, the history leading up to the hearing before the Tribunal and secondly, the facts giving rise to the complaint of unfair dismissal.  As to the first, the Tribunal first fixed 21 June as the date for the hearing of Mrs Sayles' complaint on 9 February 1994.  On 13 May 1994, Dr Lightning wrote to the Tribunal saying that this date was no longer convenient for him because "a very important other commitment" had arisen.  A Tribunal Chairman replied that they were not prepared to change the date because the fixed hearing date should take precedence over other business. There followed an exchange of correspondence between Dr Lightning and the Tribunal in which he tried to get them to change their mind, but they would not do so.  So it was that on 21 June when the case came on for hearing before the Tribunal, the Company were not represented.  Dr Lightning was not there nor was any witness who might have been able to give evidence on behalf of the Company.  Mrs Sayles was present at the hearing.  She was represented by someone from the Citizens Advice Bureau, and gave evidence.  

	Mrs Sayles had been employed as a theatre sister at the hospital from 10 September 1990 until her employment ended on 9 December 1993.  The events leading to her leaving centred around a disciplinary hearing on 9 September 1993 to which she was summoned. Dr Lightning and a Sister Thwaite, who has worked in the hospital for some time, were present.  Three complaints were made against Mrs Sayles.  The Tribunal found that at the end of the hearing.  Dr Lightning got angry and shouted at Mrs Sayles.  He threatened to dismiss her on the spot.  She was invited to resign and give three months' notice as required by her contract of employment.  Later that day she told Sister Thwaite that she had three months to find somebody to replace her.  But the following day she told Sister Thwaite that she did not want to resign.  Dr Lightning refused to accept withdrawal of her resignation and insisted that she worked out her notice.  That is why she continued to work until 9 December.

	Having found those facts, the Tribunal considered whether there was a dismissal or  resignation.  In their reasons they set out the relevant test laid down in Kwik-Fit (GB) Ltd v Lineham [1992] IRLR 156.  This case says that where words or actions of resignation are unambiguous, an employer is entitled to treat them as such and accept the employee's repudiation of contract at once unless there are special circumstances.  

	The Tribunal then said "We find that the circumstances here amount to special circumstances and that there was no intention [on the part of the Applicant] to resign".  They point out that the very next day she retracted her resignation and conclude that they are satisfied that the decision was made in the heat of the moment and with no intention to resign.  So they found dismissal, not resignation.  They found that there was some element of misconduct and so conduct was the reason for dismissal, but that it was procedurally unfair in view of the way she had been dealt with at the disciplinary hearing of which she had no notice.  They went on to make an award of compensation.

	Dr Lightning says firstly that the Tribunal acted unreasonably and perversely in refusing the adjournment.  Had there been an adjournment it would have enabled him to present the case he has elaborated to us and call Sister Thwaite from whom he has produced a recent statement.  

	The answer to that point is simple.  It is well within the discretion of a Tribunal to decide whether or not it will adjourn.  In this case there was a period of correspondence in which it was made perfectly clear that the Tribunal was not going to adjourn and that its hearing date would have to take precedence over any other commitment which Dr Lightning had, not least for the reason that the date for the hearing had been fixed long before Dr Lightning had undertaken any other commitment.  The nature of this commitment was never disclosed. 

	So the decision not to adjourn was not unreasonable or perverse.  As to the decision on the merits Dr Lightning argues that it is a perverse decision and wholly unfair.  He says Mrs Sayles resigned; that there was nothing unfair about the way she was dealt with; and that  the Tribunal's award of compensation is excessive because she could have found a job as a nurse very quickly after leaving his employment.

	These are matters, we are sure, he would have raised if he had attended the Tribunal.  But he has only himself to blame for the fact that he did not do so and it is not open to him to raise these points of fact before us.

	We are only concerned to see if the Tribunal misdirected themselves in law and/or reached a perverse decision, that is to say a decision which no reasonable Tribunal could have reached on the material before it.

	We can detect no error of law in this Tribunal's approach.  There was ample evidence upon which they could make the findings they did and therefore, the decision is not perverse.  
	Dr Lightning focused his attack on the conclusion that there were special circumstances which entitled the Tribunal to conclude that what the Applicant had said following the disciplinary hearing was not resignation.  We have looked at the paragraphs of the Tribunal's decision in which they considered the evidence on this point.  It is clear that they had well in mind that this might not have been a dismissal but on the facts they concluded it was.  We can see nothing arguably wrong in law with this conclusion.

	It follows that Dr Lightning has no arguable point of law and this appeal must be dismissed.