Appeal No.	 EAT/488/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 June 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR P DAWSON OBE
MR J C SHRIGLEY

PEEL & BOWLER CHOCOLATES LTD	APPELLANTS

MRS D ASHMORE & MRS D ELFORD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR B MORGAN
(Industrial Aide)

	JUDGE PETER CLARK:	The Respondents to this appeal, Mrs Ashmore and Mrs Elford, first commenced employment with the Appellant company, which manufactures chocolate products, in September 1993 on what was known as the ‘Mum’s Shift’, that is from 9.30 am to 2.30 pm, with no requirement to work during school holidays.

	The Appellant’s business is seasonal, high season being Christmas and Easter.   During low season, between March and September, lay-offs were common and accepted by the parties.  

	On 18 March 1997 the Respondents were laid off in common with other staff.   Work for them was not resumed by the beginning of July and the Respondents consulted a Citizen’s Advice Bureau.   As a result, a letter dated 2 July 1997 was sent to the Appellants, notifying the company of an intention on the part of the Respondents to claim a redundancy payment, holiday pay and pay in lieu of notice.   That prompted the managing director, Mr Bowler, to telephone Mrs Ashmore.  He informed her that there would no longer be a Mum’s shift and offered the Respondents work on one of two other shifts, 8am to 4pm or 2pm to 10pm.   Neither was satisfactory due to the Respondents’ child care responsibilities.

	The Respondents returned to the CAB who advised them that in their view they had been constructively dismissed.   As a result the Respondents both presented Originating Applications to the Industrial Tribunal on 11 July 1997, claiming compensation for unfair dismissal, a redundancy payment and pay in lieu of notice and holiday pay.   (The first complaint.)   On 17 July they wrote to the Appellant claiming that they had been constructively dismissed.

	The lengthy lay-off had been caused by the Appellant finding itself in financial difficulties.   A creditors voluntary arrangement was entered into in June, allowing production to restart.   In September the Respondents were offered, and accepted, a return to work on slightly different hours, still allowing them to see to their children.

	Following their return to work on 15 September their original claims came before an Industrial Tribunal sitting at Nottingham on 25 September.   The Tribunal upheld their claims for redundancy, pay in lieu of notice and holiday pay.   Their complaints of unfair dismissal were dismissed.   The Tribunal’s decision, with Extended Reasons, was promulgated on 1 October 1997, (the first decision).

	It seems, according to the findings of a second Industrial Tribunal consisting of the same members, which sat on 19 February 1998, that the Respondents’ actions in bringing the first complaint caused a certain amount of animosity among other members of the workforce.   They had also been laid off but had not pursued Industrial Tribunal claims.   They felt that the Respondents were potentially damaging their own job prospects by seeking compensation which the Appellant could not afford.   The Respondents were sent to Coventry.   They nevertheless continued in work, performing satisfactorily and co-operatively.   

	On 13 October Mr Butterworth, the Chairman of the Appellant, wrote to the Industrial Tribunal saying this:

“We are in receipt of your decision of 25 September in the above case between the applicants Mrs D J Ashmore and Mrs D M Elford.
The decision of The Tribunal is accepted without prejudice to further or pending cases.”

	On 22 October the Respondents ceased work at the start of the school half-term.   Shortly before leaving work they asked for confirmation that they would be starting back again after half-term on 3 November.   Mrs Fretwell, their supervisor spoke to Mr Bowler, who passed the message back to them that he would telephone them when he wanted them to return.   They then left work three hours earlier than normal without objection by Mrs Fretwell or Mr Bowler.

	On 3 November, having received no telephone call, the Respondents went into work.   They were told that there was no work available for them and were given their forms P45.   They were also told to return their locker keys.

	On 13 November they went back to the Appellant’s premises and gave Mr Bowler a letter asking for the reasons for their dismissal.   He referred to the earlier Industrial Tribunal hearing and on 14 November a letter was sent to each Respondent, drafted by Mr Morgan, the Appellant’s advisor, and signed by Mr Bowler which simply read:

“In reply to your letter dated 13/11 1997, we refer you to the recent Tribunal decision in respect of your Peel & Bowler employment.”

	On 15 December 1997 the Respondents each presented a second complaint to the Industrial Tribunal, alleging unfair dismissal.   Their continuity of employment had been broken by their acceptance of the Appellant’s repudiatory breach of contract in July.   Thus they had less than two years continuous employment.   However, in the event, their claim was put under S. 104 of the Employment Rights Act 1996:  that their dismissal was for an inadmissible reason, that is asserting a statutory right, and was automatically unfair.   In short, the reason or principal reason for dismissal was their having brought the first complaint against the Appellant.

	By their Notices of Appearance to the Respondents’ claim the Appellant contended that:

“Upon returning to work her attitude had not been one of full co-operation and having already dismissed herself by pursuing the dismissal case on 25 September, she was informed that her resignation had been accepted on leaving for half-term.”

	On 4 February 1998 the Appellant wrote to the Tribunal suggesting that the forthcoming hearing, fixed for 19 February, be cancelled because the Appellant had no case to answer.   The letter went on to advance a further and different case on behalf of the Appellant, namely that the Respondents had told their supervisor on 22 October that they were leaving three hours earlier than normal and that the supervisor had indicated to them that they were in effect dismissing themselves and that they did not object to that conclusion.

	The Industrial Tribunal hearing the second complaints concluded, in Extended Reasons dated 9 March 1998,  (the second decision), that in fact the Respondents were re-employed in September with a view to their working up to Christmas.   That they left work on 22 October with every intention of returning after half-term and nothing was said to the contrary.   When they returned on 3 November and were handed their P45s they were dismissed by the Appellant.

	Having found that the Respondents were dismissed on 3 November, the question then for the Tribunal was what was the reason or principal reason for dismissal?

	The Tribunal found that the Appellant had given a number of inconsistent reasons for dismissal.   We have referred to the Appellant’s letter of 14 November, the Notices of Appearance and the letter of 4 February.   Before the Tribunal it seems that the Appellant took the line that the Respondents were laid off due to a down turn in work, rather than that they had dismissed themselves, either by proceeding with the first complaint or by leaving three hours early on 22 October.   Further, the Appellant’s witnesses accepted that the suggestion that the Respondents had been unco-operative was untrue.   Another suggestion, made in evidence by the Appellant’s witnesses, that the Respondents had asked for their P45s was rejected by the Tribunal as being, in their view, untrue.

	Having found the various reasons for dismissal put forward by the Respondent to be unsatisfactory and in some cases untrue, the Tribunal looked for the real reason and concluded that it was because the Respondents had brought their first complaints and pursued them to a successful conclusion and that the Appellant believed, wrongly as a matter of law, that having broken their service the Respondents did not qualify for unfair dismissal protection.    That was a reason falling within S. 104  and the dismissal was automatically unfair.   The Tribunal proceeded to assess compensation payable in each case.

	Against the second decision the Appellant now appeals.  

	At the outset Mr Morgan has sought to adduce in evidence before us a document which was not before the Industrial Tribunal.   It is an undated statement to which a number of signatures are appended, which reads:

“STATEMENT
We the undersigned Employees of Peel & Bowler Chocolate Ltd during the dates of Monday, 15 September 1997, to Wednesday, 22 October 1997 to 12.00 noon (five weeks plus three days) refute any suggestion that we demonstrated any animosity during the Peel and Bowler worktime given to Mrs D Ashmore and Mrs D Elford.”

	We have considered that application in the light of the guidance provided by Popplewell J, in Wileman & Minilec Engineering Ltd [1998] ICR 318, following the Court of Appeal approach in Ladd v Marshall [1954] 1 WLR 1489, when considering an application to adduce fresh evidence before the Employment Appeal Tribunal.   The test is whether the new evidence has become available since the conclusion of the Industrial Tribunal hearing and could not reasonably have been adduced at the trial before the Tribunal and that the evidence is relevant, probative and likely to have an important influence on the case.   In our judgement the Appellant fails to pass that test.   The evidence could have been adduced before the Industrial Tribunal had an application been made for an adjournment to meet the case advanced by the Applicants;  it is not probative without calling the individuals who have appended their signatures to the statement and it is unlikely, in our view, to have an important influence on the outcome of the case.

	As to the grounds of appeal themselves, we have read the appeal submission in writing, which has been prepared by Mr Morgan.   We say at once that the document challenges a number of the findings of fact made by the Industrial Tribunal.   It challenges the finding that there was a dismissal and the Tribunal’s finding as to the reason for that dismissal.   However, as we pointed out to Mr Morgan in the course of his oral submissions, the jurisdiction of this Tribunal is limited to correcting errors of law, it is not an opportunity to revisit the factual issues which were ventilated and decided upon by the Industrial Tribunal.    In our judgement the appeal raises no arguable point of law to go forward to a full appeal hearing.

	The other complaint made by Mr Morgan is that the Industrial Tribunal panel which, as we have indicated, was of the same composition as at the first hearing appeared, through the Chairman, to have indicated that its collective mind was made up at the start of the second hearing.   We think it is clear from the Tribunal’s Reasons that they carefully considered the evidence that was called before them and, where necessary, made findings of fact on the basis of that evidence.   We reject the suggestion that the Tribunal had reached a pre-determined conclusion in this case bearing in mind the way in which they have expressed their Reasons.   Of course it may very well be that having sat on the first hearing the Industrial Tribunal and its Chairman was more familiar with the background to the matter than might otherwise have been the case.   However we do not regard that as disabling the membership of that Tribunal from sitting on the second occasion.

	Finally Mr Morgan submits that the Industrial Tribunal’s Reasons are irrational.   Having carefully considered them we are all of the view that they are perfectly rational.   The findings of fact and the conclusions drawn from those findings are, in our view, within the permissible range of options open to an Industrial Tribunal.   In these circumstances we have no alternative but to dismiss this appeal.