Appeal No. EAT/596/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 June 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR R SANDERSON OBE
MR T C THOMAS CBE

SNELL & WILCOX LTD	APPELLANT

MR S M SUTCLIFFE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING EX-PARTE

Revised

	APPEARANCES

For the Appellant	MR G LUCIE
(Of Counsel)
Instructed by
Messrs Griffith Smith
Solicitors
47 Old Steyne
Brighton
East Sussex
BN1 1NW	

JUDGE PETER CLARK

1.	By an Originating Application presented to the Employment Tribunal on 10 November 2000 the Applicant, Mr Sutcliffe, complained of unfair dismissal and disability discrimination on the part of his former employer, the Respondent Snell & Wilcox Ltd.  He gave as his dates of employment 6 September 1999 – 14 September 2000, just over one year’s qualifying service for the unfair dismissal complaint.

2.	By their Notice of Appearance the Respondent contended that the employment had terminated on 14 August 2000, thus giving the Applicant less than the necessary qualifying service for unfair dismissal purposes.

3.	That point was taken as a preliminary issue before a full Employment Tribunal sitting at Southampton on 23 February 2001.  By a decision with extended reasons promulgated on 20 March 2001 the Employment Tribunal upheld the Applicant’s contention as to the effective date of termination.  Against that decision the Respondent now appeals.

4.	The issue turned, factually, on the events of 14 August 2000, as to which there was a dispute between the Applicant on the one hand and Mr Naylor and more particularly Mr Smith, senior managers of the Respondent, on the other.

5.	It was common ground that all 3 met on that day.  The Applicant’s version was that it became clear that he was to be dismissed.  His case was that Mr Smith told him that he would be dismissed with one month’s notice, but would not be required to work that notice period.  Mr Smith told him in terms that he was not being summarily dismissed.

6.	The Respondent’s witnesses gave a different account of the relevant conversation.  Mr Smith, in a witness statement dated 15 January 2001, said:

“We explained to the Applicant that his contract of employment was being terminated with immediate effect.”

He went on:

“We made it clear to the Applicant that this was to be his last day of employment and that he could leave the premises of the Company once he had collected his personal belongings.  We told him that the Company would be paying a month’s salary in lieu of notice, in line with our Standard Terms & Conditions of Employment, together with salary for the period 1 to 14 August in the month end payroll.”

And that account was corroborated by Mr Naylor.

7.	It was also common ground that on 23 August Mrs Rayfield of Human Resources wrote to the Applicant, setting out reasons for his dismissal in response to a written request by him dated 18 August.  That letter began:

“Further to the termination of your contract on Monday 14 August …..”

8.	That was followed by a letter dated 25 August 2000 which, the Employment Tribunal found, suggested 14 September was his last day of service.  On the other hand his P45 gave his leaving date as 14 August.  The Employment Tribunal thought that those pieces of evidence cancelled each other out.

9.	What would have been determinative of the issue in favour of the Respondent was a letter dated 14 August 2000 and produced in evidence by Mr Smith.  It was signed by Mr Smith, addressed to the Applicant and began:
“Further to the discussion with John Naylor and myself today, this letter is to confirm the termination of your employment with Snell & Wilcox with immediate effect i.e. 14 August 2000.”

10.	Mr Smith’s evidence about that letter was that it was written on the afternoon of 14 August.  He told the Tribunal that he drafted it and typed it himself and that he had given a copy of it in an envelope to the Applicant by hand on that day.  He said he also supplied copies to John Naylor and to Mrs Rayfield.  When asked about the circumstances of handing over the letter to the Applicant he said:

“I believe you were in the upstairs laboratory on the same floor as you go in.  You may have been with Pringar Boon [another employee]”.

11.	The Applicant in evidence denied ever having been given the letter or having seen it before the Employment Tribunal hearing.

12.	The Employment Tribunal found that there were a number of difficulties with Mr Smith’s evidence about the letter.  First, it was not mentioned either in his witness statement or that of Mr Naylor prepared for the purpose of the Employment Tribunal proceedings.  It did not appear in the bundle of documents prepared by the Respondent’s solicitor for the purposes of the Employment Tribunal hearing but thirdly, they did not believe that the Applicant would have denied receiving the letter.  They found as a fact that it was not given to the Applicant or Mr Smith.

13.	As to the conversation at the meeting on 14 August they preferred the evidence of the Applicant.  Having done so, they concluded that he was orally dismissed with 1 month’s notice on 14 August.  He was not required to work that notice.  Consequently, the effective date of termination of the contract of employment was 14 September.  He had sufficient service to pursue his claim of unfair dismissal.

14.	In this appeal Mr Lucie, on behalf of the Respondent company, has sought to persuade us that it is arguable that the Employment Tribunal’s decision was Wednesbury unreasonable in the sense either that the Employment Tribunal took into account irrelevant factors or failed to take into account relevant factors or that the decision was otherwise perverse in one or more of the senses helpfully collected by Mr Justice Mummery, as he then was, in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 at 443.

15.	Those are 3 different ways of putting essentially the same point, which is that the Employment Tribunal ought to have taken into account the fact, as submitted by Mr Lucie, that the letter of 14 August, even if not given to the Applicant, was the only contemporaneous written documentary evidence saying what was said to the Applicant on 14 August and conversely that the Employment Tribunal failed to give any weight to the contents of that letter for the purposes of determining as a matter of fact what was said at the meeting on 14 August.

16.	Further submissions are made along the lines that the Employment Tribunal was wrong to draw an adverse inference from the fact that the letter had not been included in Mr Smith’s witness statement nor included in the bundle of documents prepared for the purpose of the Employment Tribunal hearing.  

17.	We have carefully considered those submissions, each of which has been tested in the course of oral argument and we have concluded that there is no real prospect of this appeal succeeding at a full hearing.  It is axiomatic that the Employment Tribunal is the Tribunal of fact.  Appeals to this Employment Tribunal are limited to questions of law only.  We have no difficulty in accepting the Employment Tribunal’s reasoning which led them to accept the Applicant’s evidence in preference to that of Mr Smith and Mr Naylor.  The circumstances in which the letter of 14 August came before the Employment Tribunal were indeed highly unusual.  It is strange, as the Employment Tribunal point out, that the letter was not referred to in the witness statement of either Mr Smith or Mr Naylor, to whom Mr Smith said he had sent a copy, nor in the bundle prepared for the hearing.  It is right to say that the Employment Tribunal did not go as far as to say that the document had been fabricated for the purpose of these proceedings.  They did not need to do so.  The critical finding in our judgment appears in the Tribunal’s reasons at paragraph 22 when they say this:

“Finally, we should say that our confidence in the accuracy of the recollection of Mr Smith and Mr Naylor was damaged by the late production of the letter of 14 August and for that reason also we prefer the evidence of the Applicant to their evidence as to what passed at the meeting on the 14th.”

18.	The Employment Tribunal had the task of resolving a straight conflict of fact.  They did so permissibly and in these circumstance this appeal is dismissed.