Appeal No.	EAT/1019/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 March 2001

Before
MR RECORDER BURKE QC
MRS R CHAPMAN
MR D A C LAMBERT

VIVERS RESTAURANT LTD	APPELLANT

1) MS G DAUZ 
2) RIVALMINSTER LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS PAMELA WALSH
(Solicitor)
Messrs L Bingham & Co
Solicitors
New Loom House
101 Backchurch Lane
London E1 1LU

MR RECORDER BURKE QC:

1	By a decision promulgated on 12th July 2000 the Employment Tribunal sitting at London North and chaired by Mr Roose, dismissed the Respondent’s claim that she had been unlawfully discriminated against on the grounds of her sex, but found that she had been constructively and unfairly dismissed by her employers, the present Appellants.  The Appellants now appeal against that latter finding; and this is the preliminary hearing of that appeal.

2	The employee was employed as a waitress by the Appellants at the Holiday Inn Hotel, Wellbeck Street in London.  She worked four hours a day during the mornings on five days per week.  Ms Walsh who has appeared for the Appellants today tells us that she also had another job.  The Tribunal found that, in the autumn of 1999, the employee had a number of serious medical problems as a result of one of which she was an in patient at St. Mary’s Hospital from 6th to 8th of October.  She then recuperated at home and returned to work on 19th October.  She handed to her employers a medical certificate which she had obtained from the hospital.  It purported to show that she had been in the hospital from 5th to 18th October, whereas in truth she had only been in hospital between the 6th and the 8th of that month.

3	She later obtained a further medical certificate from her GP, covering her absence from work for all of the period of her absence save for the period in which she had been in St. Mary’s Hospital (with the exception of two days).  However, there is no doubt that she had fraudulently altered the hospital certificate, although the hospital certificate bears on its face a specific warning against so doing in terms which indicated to the reader, that knowingly giving wrong or incomplete information might lead to prosecution.  Neither the Tribunal nor for that matter, we, in so far as it is a matter for us would suggest that her alteration of the certificate was not a serious matter. 

4	The employers subsequently discovered what the Respondent had done.  It was discovered, it seems, on or about 5th November, the employment Tribunal found that, on 9th November, in consequence of what they had discovered, the employers at first dismissed the employee but later on the same day rescinded that dismissal and issued instead a final written warning which was based on the forgery of the certificate and also on alleged poor performance.  We are told that there was an issue before the Tribunal as to whether or not there ever had been a dismissal on 9th November and that that issue was resolved by the Tribunal by the finding that we have just described.  

5	The Tribunal found that, between 9th November and 25th January 2000 when the employee’s appeal to the employer against the final written warning was heard, that the employers had behaved in a hostile and oppressive manner towards the employee.  The Tribunal found that on 25th June the last in a series of incidents amounting to hostile and oppressive behaviour occurred in the course of the hearing of the employee’s appeal.  The Tribunal did not specify precisely what it was that went wrong at that hearing; but according to Ms Walsh what went wrong was that at that hearing the employee alleged that she had been dismissed on 9th November a matter which she regarded obviously as unfair and as giving her the right to be agrieved, but the employers had denied they had done so.  In correspondence, as the Tribunal found, on 27th January the employee indicated that what had happened on 25th January was the last straw because it had become clear to her from the attitude of the two brothers, Mr Paul and Mr Ronnie Bou-Abdallah, who were in effect the employers, that the relationship of employer and employee had irretrievably broken down.

6	The Tribunal found that the employers, after discovering what had happened in relation to the hospital certificate, immediately had concluded that the employee was a criminal and had not taken into account that she was so ill as to be in hospital for two or three days and thereafter to be recuperating at home and had, after the dismissal had been withdrawn, treated her in a hostile, unfriendly and oppressive manner, culminating in the event which occurred at the appeal hearing, which, the Tribunal found, reaffirmed rather than set on one side the attitude of the brothers towards her and her continued employment as had been demonstrated on a number of occasions since 9th November.  

7	The Notice of Appeal put forward eleven grounds of appeal; to some extent they overlap but we will try to isolate them and refer to each.

8	First of all, it is contended on behalf of the employers in this appeal that the Tribunal failed to take into account that the medical certificate itself said that the alteration of the document was a criminal offence and the seriousness of what, in relation to the certificate, the employee had done.  It is said that in describing the employee as naïve and foolish the Tribunal were being too lenient toward her.

9	It is important in relation to this ground and other grounds which have been put before us to remember that appeals to this Appeal Tribunal must be based on errors of law.  It is for the Employment Tribunal to find the facts; and it is for the Employment Tribunal in a constructive dismissal case to consider whether on the facts there has or has not been demonstrated for example, as was alleged by the employee in this case, that there has been a fundamental breach of the implied term of trust and confidence which lies at the heart of the employment contract.  It is not the duty of the Tribunal to set out each and every item of fact in its decision, it is obliged to give reasons, which are sufficient to demonstrate to the parties why they have won or lost.

10	So far as this first ground of appeal is concerned, it is quite clear to us that the employees conduct was the reason for disciplinary steps being taken against her on 9th November; but the seriousness of what she had done did not justify and could not arguably justify what the employers were subsequently found to have done after they had taken the decision not to dismiss her but to give her a final written warning.  Ms Walsh today has stressed more than once the seriousness of the employee’s conduct and it may well be, that had the employers proceeded, on the basis of that conduct, to dismiss the employee and had then stood by their dismissal they would have been able to justify what they had done.   Whether they would or would not had been able to justify dismissal at that stage did not come before a Tribunal and has, therefore, never been considered on its merits because they in fact recanted their dismissal and instead gave the employee a warning.  It is surely not to be suggested and we did not detect that Ms Walsh was in fact suggesting that, the employment relationship having continued on the basis of that warning, in some way or another oppressive and hostile conduct on the part of the employers towards the employee was less serious because she had earlier committed the misconduct which we have described.  We see no basis for concluding that the Tribunal did fail to take into account the seriousness of the employee’s conduct; but nor do we see any arguable basis for concluding that if the Tribunal had failed to treat that misconduct as serious, as it was, such failure would or could have affected the view they took of the employer’s subsequent conduct.

11	The second ground which is put forward that the Tribunal failed to take into account that all the documentary evidence showed that the employee did not consider herself as having being dismissed on 9th November until she asserted that she had been dismissed, it is said for the first time, at the hearing on 25th January of her internal appeal.   We have no doubt, and indeed Ms Walsh has accepted, that, it being clear before the Employment Tribunal that there was an issue as to whether or not the employee had been dismissed on 9th November, she was cross-examined closely as to the correspondence from 9th November onwards.  It is said that that correspondence does not allege that she had been dismissed.  No doubt the Tribunal had that in mind, heard her cross-examination, and heard the evidence of the employers; having done so it made a finding on the evidence that she had in fact been dismissed on 9th November.  This is a classic case of a ground of appeal which asks us to review factual findings when there was evidence on which the Tribunal could make the finding that it did, namely the evidence of the employee that she had been dismissed on 9th November, (albeit, as was common ground, any such dismissal had later been recanted).

12	By the third ground the employers complains that the Tribunal had failed to take into account or properly to take into account the fact that on 12th December the employee arrived late for work and responded to an enquiry as to why that was so by shouting at Mr Ronnie Bou-Abdallah and calling him a pathetic failure who was trying to get rid of her.  However the tribunal made express findings as to what happened on 12 December.  They found at paragraph 9 of its decision that:

“The Applicant arrived at work as 7.30 a.m. to be told by Mr Ronnie Bou-Abdallah that she was half an hour late.  Instead of dealing with the matter quietly in private, he provoked a scene in the restaurant, which was witnessed by a number of other employees.  No other employees had previously been dealt with in this way”.

That was plainly a finding on the evidence that the Tribunal was entitled to make and it was clearly an incident of importance in the Tribunal’s total consideration of what had happened, illustrating the oppressive and hostile conduct of the employers.

13	The fourth ground of complaint is that the Tribunal’s finding that the employers refused to deal with the employee’s grievance at the appeal hearing on 25 January was not borne out by the evidence.  We have tried to see if we could find such a finding in the decision; we cannot find it.  It would seem that the Tribunal’s criticisms of the events of 25th January were probably based on the employers’ refusal to accept that they had dismissed the employee, a fact which as we have indicated she regarded as giving rise in her mind to a grievance.  The employers denied that they had dismissed her.  She said that they did.  She turned out to have been right because her evidence about that was accepted; and if the employers denied dismissing her, as it is accepted that they did on that occasion, then they were mistaken or untruthful; and one could well understand why the tribunal might see (and it is up to the tribunal to say whether they did so see it) that denial as something which added to and could be a last straw accumulated with the behaviour of which the employee had been complaining over the previous weeks as set out in the Tribunal’s findings. 

14	The fifth ground relates to 18th January when, it is said, that Mr Paul Bou-Abdallah asked the Applicant to stay and continue some tasks, but the Applicant shouted at Mr Paul Bou- Abdallah, stating that he was not her boss.  The complaint is that the Tribunal ignored these actions of the Applicant.  This ground is similar to that in relation to 12th December.  The Tribunal expressly found at paragraph 11 that:

“11 On the morning of 18 January Mr Paul Bou-Abdallah, forming the view that the Applicant was slacking, followed her around, stood over her in an oppressive manner and behaved towards her in a manner which had not been exhibited to others. ”

Those are findings of fact and we can see no arguable basis on which they can be attacked.  It cannot be said that they were not supported by evidence, because they were supported by the evidence of the employee.  

15	The sixth and seventh grounds both relate to the internal appeal hearing.  It is said that the Tribunal erred in law in finding that at that appeal hearing, the Bou-Abdallah brothers had behaved in such a way as to amount to the last straw and that the Applicant’s behaviour at the meeting was rude and oppressive, calling the brothers liars merely because they did not accept that they had dismissed her.  We have, in effect, already dealt with this argument.  The Tribunal made findings about what happened at that meeting.  They found that what happened was the last straw; there was evidence on which they could have so found; and we see no basis on which it could arguably be said that their finding was wrong in law or was perverse.

16	The next ground refers back to the point, to which we have also referred already, that the employee did not ever claim that she had been dismissed in November 1999 until            25th January of 2000.  We have indicated before that the Tribunal had to decide whether or not the employee had been dismissed on 9th December; they decided that she had been dismissed on that date despite the fact, as asserted by Ms Walsh that that was inconsistent with the correspondence.  The tribunal was then entitled to go on to conclude that, in denying that they had dismissed her, but the employers were continuing to display towards the employee the attitude which on the findings of the Tribunal they had displayed since 9th November.

17	It is next asserted that the Tribunal erred in failing to consider the behaviour of the employee in blaming the Appellants for the difficulties which arose, when it was clearly documented in evidence that at the Tribunal that the employee had acted in a manner inconsistent with her contract of employment.  This argument appears to take us back to the first ground, in which we expressed our views as to the submission that the tribunal had failed to regard the employee’s breach of contract with sufficient seriousness.  The fact that the employee had acted in breach of contract in October could not be said to be a justification or excuse for the conduct which the Tribunal found on the evidence to have occurred after 9th November.  The conduct of the Appellants after 9th November was, of course, their conduct and not the employee’s conduct.  

18	Finally, in the last ground of appeal, it is asserted that the Tribunal erred in considering that the normal actions of the employer on 12th December, 18th January and 25th January were capable of constituting a fundamental breach of contract.  There is no suggestion on the Appellant’s behalf that the Tribunal misdirected itself as to the law relating to constructive dismissal or as to the test, which applied.  The Tribunal plainly directed itself correctly in law, and having so directed itself, it was entitled to weigh the evidence to decide whether or not the facts demonstrated a fundamental breach of the implied term of trust and confidence.  There was evidence available to them on which they could have found that they were satisfied that such a breach had occurred.  They did so find, and we see no basis on which it could arguably be said that their finding was perverse or that it was unsupported by evidence.  

19	For those reasons, there are no arguable grounds in this appeal and it is dismissed.