Appeal No.	 EAT/724/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 April 2002

Before
HER HONOUR JUDGE A WAKEFIELD
MS J DRAKE
MR D J HODGKINS CB

HERITAGE FAIRWAY LTD	APPELLANTS

MR M R BAGG	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR DAMIAN McCARTHY
(of Counsel)
Instructed By:
Messrs Fitzhugh Gates
Solicitors
3 Pavilion Parade
Brighton
East Sussex BN2 1RY	
For the Respondent	MS CATRIN LEWIS
(of Counsel)
Instructed By:
Messrs Farrington & Webb
Solicitors
12A Marlborough Place
Brighton
East Sussex BN1 1WN	

JUDGE A WAKEFIELD:

1	This is an appeal by Heritage Fairway Ltd against a decision of an Employment Tribunal sitting at Brighton by which it was decided that the present Respondent, Matthew Bagg, had been unfairly dismissed and should receive from the Appellants a basic award of £690 and a compensatory award of £5,433.

2	The grounds of appeal relate both to the finding of unfair dismissal and to the amount of the compensatory award.

3	The brief background facts were that the Respondent was employed from 26 July 1996 by the Appellants as a welder/fabricator/sheet metal worker.  Following a relocation of the Appellants’ workshop in July 1999 the Respondent’s relationship with the Appellants’ Directors, Mr and Mrs Trott, had deteriorated.  On 24 May 2000 the Respondent and Mrs Trott had a disagreement and on the following day the Respondent left the Appellants’ employment.

4	The Employment Tribunal dealt with these events and their sequel at paragraphs 35 to 37 of their Decision as follows:

“35  Mrs Trott told the Applicant to ‘Sod off home and torment someone else’.  The Tribunal is satisfied that in using those words the Respondent had clearly become upset and aggressive towards the Applicant because he had refused to do what was asked of him and she had not been prepared to listen or accept his reasons for that.  Furthermore, Mr Barnes confirmed to the Tribunal that after the Applicant had left the premises, Mrs Trott had attended on Mr Barnes and told him that the Respondent had paid the Applicant £20,000 for nothing but at least she knew whom the Respondent could reply on in the future.  Mr Barnes relayed these remarks to the Applicant when he attended on Mr Barnes at his house later that evening to discuss what had happened.
36  The Applicant believed that Mrs Trott had dismissed him but nevertheless attended for work the following day to ascertain his position.  Mr Trott asked him to attend on him in his office.  When he did so the Applicant explained his concern as to what Mrs Trott had done and said the previous day.  Mr Trott then told the Applicant that he could not have a situation where a £6,000 machine was left outside the workshop.  He was told by Mr Trott that he had a bad attitude and it was rubbing off on other people.  He told the Applicant that he was either with Mr Trott and his wife, or against them.  The Applicant replied:  ‘Pay me now and I will go’.  Mr Trott replied that a cheque would be in the post.  The Applicant then left the Respondent’s premises.
37  The Respondent sent a letter to the Applicant, delivered by hand the same day.  It was delivered to the Applicant with no explanation offered to him.  A copy of the letter was available to the Employment Tribunal.  It stated, inter alia, as follows:
‘… we can certainly not continue to execute or ignore your blatantly obstructive behaviour as it has been affecting everyone who works here along with some of those already left.
I am not unhappy at your decision to leave although I would have hoped for a different outcome and a more positive approach to your undoubted skills and qualities which we have recognised and tried to reward but I think we now realise that you have not been happy with your position here or with the new demands it has been necessary to make’.
These are the facts found by the Employment Tribunal.”

5	In those circumstances the Employment Tribunal found that the Respondent was dismissed by the Appellants on 25 May, alternatively that he was constructively dismissed by them on that date.  In the grounds of appeal, those findings are attacked as being errors of law or perverse.  It is said that the exchanges on 25 May could not properly be interpreted as Mr Trott dismissing the Respondent.  Alternatively it is said that the events of 24 and 25 May did not breach the trust and confidence between employer and employee such as to give rise to constructive dismissal.  

6	We do not agree.  The Employment Tribunal made findings of fact based on their assessment of the credibility of the witnesses for the respective parties, those findings being open to them on the evidence as presented.  We are quite unable to accept that the Appellants were wrongly prevented from giving relevant evidence as to an alternative reason for a breakdown in trust and confidence, namely that the Respondent grew hemp near the office of Mrs Trott.  It is quite apparent from witness statements, to which we have been referred today and which were before the Employment Tribunal, that any such activity of the Respondent was at his home and was unrelated to his working environment.  Furthermore, no warning had ever been given to him by the Appellants, nor was the matter referred to in the Notice of Appearance and the accompanying documentation.  Such evidence was, we conclude, irrelevant to the issues before the Employment Tribunal and was rightly excluded by them.  

We are satisfied that the Employment Tribunal were entitled, on the basis of the evidence which they accepted, to find that the Respondent was dismissed and/or constructively dismissed on 25 May.

7	The Appellants never having put forward a reason why such dismissal was fair, the Employment Tribunal rightly found that it was unfair and moved on to deal with compensation.  There is no challenge to the amount of the basic award.  As to the compensatory award, the amended grounds of appeal at paragraph 15 read as follows:

“15  The Tribunal failed to consider whether such an award was ‘just and equitable’ having regard to the following:
(1)	The fact that the Applicant had been growing hemp near Mrs Trott’s office;
(2)	The Applicant took papers belonging to the Appellant when he left the Appellant’s employment which caused them much disarray and financial loss.”

8	The allegation as to hemp growing, as already mentioned, we find to have been irrelevant and properly excluded from consideration, including on the question of remedy.  

9	As to the taking of papers, the only evidence as to this which was before the Employment Tribunal was the final sentence of Mr Trott’s Witness Statement which reads as follows:

“Later, on inspecting the books it appears that Matthew may have rubbed out and altered some of the dimensions but fortunately we have been able to overcome any problems with vigilance, although it has undoubtedly cost us a considerable amount of time and money.”

From what the Appellants’ Counsel has told us today it is quite apparent that no attempt was ever made before the Employment Tribunal by the Appellants to quantify this alleged loss.  It is nevertheless argued in this appeal that “using a broad brush approach” and on the basis of the just and equitable basis upon which the compensatory award must be calculated under section 123 of the Employment Rights Act 1996, the Employment Tribunal should have made a percentage reduction of an unspecified amount to the compensatory award to take account `of this alleged misdemeanour of the Respondent.  It is correct to say that the Employment Tribunal does not in its Decision make any reference to this question of the taking of the documents in its discussion of remedy, nor to any loss which may thereby have been caused to the Appellants.  In paragraph 7 of its Decision, referring in general terms to allegations which they discounted, the Employment Tribunal said this:

“7  The perception of the Respondent’s directors was that they had shown favour towards the Applicant during his employment with them and that he had failed to meet their expectations.  The disappointment was such that the Applicant was, in the course of the hearing, faced with serious, unsubstantiated allegations voiced by the Respondent’s directors largely based on hearsay about his conduct, which were not relevant to the factual issues before the Employment Tribunal.  Some of these allegations raised issues of potential criminal acts by the Applicant.  The Employment Tribunal was concerned as to the reasons why such matters had been raised by the Respondent and could only conclude that they had been raised to attack the Applicant’s character and credibility.  This was not, in the Employment Tribunal’s view, to the credit of the Respondent’s directors as the matters were not relevant to the Employment Tribunal’s deliberations and it was not prepared to allow the parties to become engaged in any dispute about such matters in a public arena when it was not necessary to do so.”

10	In dealing specifically with remedy the Tribunal said this at paragraph 47:

“47  The Employment Tribunal had, in reserving its decision, received all appropriate information from the parties to enable it to address the question of remedy in a case where the Applicant, if he was successful, had confirmed that he sought compensation and did not seek reinstatement or re-employment.  The Employment Tribunal thus finally deals with the matter of remedy in what is set out below.”

Had the Appellants sought to quantify the loss said to have been caused to them by the temporary loss of some paperwork, we would have been sympathetic to them in this aspect of the appeal in that the Employment Tribunal did not specifically refer to this point in their Decision, nor did they make any reduction in the compensatory award in consequence of proven loss.  However, since the Appellants proved no such loss, the evidence being far too vague in our view to justify any percentage reduction in the Respondent’s award, this ground of the appeal also fails.

11	The appeal is dismissed.