Appeal No. EAT/0143/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 March 2002

Before
MR COMMISSIONER HOWELL QC
MR P DAWSON OBE
MR D J HODGKINS CB

MISS L FRIEND	APPELLANT

HAZEMEAD LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED	
For the Respondent	MR JONATHAN MANSFIELD
Solicitor
Instructed by:
Messrs Clarkson Wright & Jakes
Solicitors
Valiant House
12 Knoll Rise
Orpington
Kent
BR6 OPG	

MR COMMISSIONER HOWELL QC

1.	We have before us for Full Hearing an appeal by Miss Lisa Friend against the decision of the London Central Employment Tribunal sitting on three days in June to October 2000 on her claim for unfair dismissal against her former employers Hazemead Limited which is an agency in the entertainment industry.

2.	She had been employed with Hazemead as secretary from 27 October 1997 until her summary dismissal on 29 February 2000 by Miss Chudleigh who is the director and for practical purposes leading light in the Hazemead, which is an agency handling artists in the entertainment business. In particular, one of the distinguished artists whose affairs are mentioned in the story was Mr Freddie Starr.

3.	The Tribunal found that the circumstances of Miss Friend’s dismissal had been because Miss Chudleigh was not satisfied with her capability following her failure to carry out express instructions about an amendment to a contract involving Mr Starr.  There were other grounds of immediate dissatisfaction on the day Miss Friend was dismissed, in particular that she had failed to issue a second reminder to Miss Chudleigh about a doctor’s appointment that Miss Chudleigh had to go to, but that was very much a subsidiary part in the Tribunal’s assessment of what led to her dismissal.

4.	However, the Tribunal found that the actual manner of Miss Friend’s dismissal had been unfair because Miss Chudleigh as they record in paragraph 16 of their Extended Reasons had simply decided to dismiss Miss Friend in anger without giving her a chance to explain her position.  That the Tribunal held was not acceptable in the circumstances that Miss Friend had been employed by the Respondent for over two years.  She should have been given an opportunity to state her case before a decision was taken whether or not she should be dismissed for what was certainly a serious error.  On that basis the Tribunal found that her dismissal was unfair.  

5.	That finding is not in dispute before us on this appeal.  The only issue that we have to consider is that defined by the Employment Appeal Tribunal on the preliminary hearing, which is whether the Tribunal’s approach to the question of compensation which they went on to consider in paragraph 18 of their Extended Reasons involved any material error of law.  Paragraph 18 records so far as material that the Tribunal considered that the compensation should be limited to only one week’s pay plus two weeks’ pay in lieu of notice, as they said  expressly “having regard to Polkey.”  That was a reference to the well known principles in the case of Polkey v A E Dayton Services Limited [1988] ICR 142 on which the Tribunal had correctly directed themselves at an earlier point in paragraph 1 of the Extended Reasons sent to the parties on 24 November 2000.  The Tribunal’s reasoning in the paragraph of their decision in which they determined the compensation issue was stated fairly shortly as follows:

“18   The Tribunal had concluded that there had been no contribution to the dismissal but the Tribunal was satisfied that even after a chance had been provided for Miss Chudleigh to cool down she would still have reached a decision that Ms Friend should be dismissed for capability having regard to earlier warnings and the seriousness of this particular matter.”

6.	The Tribunal’s reference to earlier warnings relates back to two matters which they recorded, that in June 1999 and again in December 1999 warnings had been given both to Miss Friend and to another secretary employed in the agency, a Miss Bookman, about numerous matters.  Those are not identified in the Tribunal’s decision itself, but identifiable from the terms relied on in the Respondent’s notice of appearance before the Tribunal at page 17 of the appeal file before us, referring to typing mistakes, errors in taking messages and filing documents and other matters all of which can be grouped under the heading of carelessness in secretarial matters.

7.	The particular piece of alleged carelessness which the Tribunal found proved and which gave rise to Miss Friend’s actual dismissal was recorded in paragraph 12 of the Extended Reasons as follows:

“In February an agreement was reached on behalf of Mr Starr for him to take part in a particular performance.  The preparation of the contract was a matter for the promoter and the first version of the contract contained two important errors.  First, reference was not made to the contracting party being Mr Starr’s company rather than Mr Starr himself and secondly it stated that payment was to be made after the performance and not before as had been agreed.  Miss Chudleigh was due to go on leave and she therefore made it absolutely clear to Ms Friend that these matters had to be rectified.  However, when an amended version of the contract arrived, only the first matter had been rectified.  The contract arrived while Miss Chudleigh was absent on leave.  Ms Friend prepared the normal paperwork which comprised a Contract Advice Note which reflected the terms contained in the contract prepared by the promoter.  Accordingly the Contract Advice Note reflected the payment provision that payment was due following Mr Starr’s performance.  However, Ms Friend simply placed that paperwork in Miss Chudleigh’s in-tray without writing any further more to highlight the promoter’s failure to correct that part of the contract.  When Miss Chudleigh came into the office Ms Friend did nothing to bring the matter to Miss Chudleigh’s attention.”

8.	Before us on the appeal Miss Friend has not appeared in person but has submitted a skeleton argument on the issues directed for full hearing, and all of the points in her skeleton argument we have taken into account.  The issue we have to consider is whether the Tribunal focusing apparently in paragraph 18 of their Extended Reasons simply on their prediction as to what Miss Chudleigh would have done once she had cooled down provided an adequate explanation and an adequate consideration of the relevant issue on compensation for an unfair dismissal, and to what it was just and equitable in all the circumstances to award (the amount they did award amounted I think in total to £1759), or whether they had failed to address the question of whether a fair procedure would still have resulted in a reasonable dismissal.
	
9.	Having taken account of all the points raised in Miss Friend’s skeleton argument we have concluded that the arguments presented to us by Mr Mansfield who appeared before us today on behalf of the Respondents are correct and that it cannot be said now that the matter has been fully considered that the Tribunal fell into error of law in the way they approached the question of compensation.

10.	In the first place we accept Mr Mansfield’s argument that what is said by way of formulation of the question in paragraph 18 of the Tribunal’s Extended Reasons cannot fairly be read in isolation from the reference to a fair dismissal and to the test under the Polkey case in other parts of the decision in particular in paragraph (1) of the formal part of the decision itself where the Tribunal record that they expressly concluded that:

“The Respondent would have fairly dismissed the Applicant with notice a week after the dismissal occurred.”

11.	In paragraph 1 of the Extended Reasons where they direct themselves in impeccable terms as to the issues they have to consider including in particular:

“If the dismissal was unfair for a procedural reason, whether a fair dismissal would have occurred at a later date and, if so, when, having regard to the decision of the House of Lord in Polkey v A E Dayton Services Limited [1988] ICR 142.”

12.	And finally the record in paragraph 19 of the discussion between Counsel for Miss Friend herself and the Tribunal on the issue of compensation, where it is recorded that Counsel made clear that his agreement on the amount for compensation on the basis awarded by the Tribunal was “without prejudice to the possibility of an appeal in respect of the Tribunal’s conclusions to the effect that that dismissal would have been decided on fairly [our emphasis] a week later on the Polkey point.”  

13.	In our judgment those passages make it clear that the formulation recorded in paragraph 18 the Tribunal’s Extended Reason ought not to be read in isolation and they give no ground for us to infer that the Tribunal misdirected themselves as to the test they should be applying in assessing the question of compensation.  We also found our decision on a third material consideration, which is that the Tribunal as they recorded in paragraphs 2 and 3 of their Extended Reasons, heard evidence from Miss Chudleigh herself; and in our view it has to be implicit in their finding that a fair dismissal would have been imposed by her after a short further period, that they were rejecting any possible suggestion there might otherwise have been that any such conduct by her would have been unreasonable for an employer to adopt.

14.	Paragraph 3 of the Tribunal’s Extended Reasons records the Tribunal’s assessment of Miss Chudleigh herself, where having heard her evidence they say:

“Miss Chudleigh, who set up the Respondent herself many years ago, is an employer who has extremely high expectations, possibly expectations which are extremely difficult to meet, and who has no compunction in making known her feelings in what could be described as the strongest possible terms which can appear harsh to onlookers.”

15.	That in our judgment amounts to a clear picture painted by the Tribunal of a demanding employer who can be harsh when her accepting standards are not met, but it does not in our judgment amount to any finding, or give ground for any inference, that she is an employer who is incapable of making a reasonable decision on the question of capability, after what the Tribunal referred to as a suitable cooling-off period from the immediate heat at the moment on 29 February 2000.  That being so we have been unable to see having fully considered the matter that there is any error of law on the part of this Tribunal in the way they approached the question of compensation and we accordingly now dismiss the appeal.