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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Aynge v. Trickett (t/a Sully Club Restaurant) (Practice And Procedure - Preliminary issues - Amendment) [2018] UKEAT 0264_17_0702 (7 February 2018) URL: http://www.bailii.org/uk/cases/UKEAT/2018/0264_17_0702.html Cite as: [2018] UKEAT 264_17_702, [2018] UKEAT 0264_17_0702 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE SHANKS
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MS JULIE AYNGE (The Appellant in Person) |
For the Respondent | MR JON STANLEY (Representative) Bayside Employment Relations Limited 26 Windsor Esplanade Cardiff CF10 5BG |
SUMMARY
PRACTICE AND PROCEDURE - Preliminary issues
PRACTICE AND PROCEDURE - Amendment
The Claimant worked in a pub/restaurant owned by her parents of which the Respondent was the licensee. On Saturday 15 October 2016 there was a row between them during the evening shift and the Claimant left before the end of the shift; on Sunday 16 October there was a further interaction. The Claimant brought a claim for unfair dismissal stating in her ET1 that her employment ended on 15 October 2016 and referring to events on both 15 and 16 October. Both sides put in witness statements dealing in detail with events on 15 and 16 October. On a fair reading of the Claimant's witness statement, it would have been open to a Tribunal, depending on what other evidence was accepted and how the various exchanges were analysed, to find that there had been an express or constructive dismissal on either 15 or 16 October.
The hearing was listed for two days; the Claimant represented herself, the Respondent was represented by a consultant and was present with two other witnesses to the events. Instead of hearing all the evidence the Employment Judge acceded to a submission that the Claimant had effectively conceded in her witness statement and oral evidence that she was not expressly dismissed on 15 October 2016 and that, this being her only pleaded case, the claim should be dismissed on the basis of a "preliminary issue".
The EAT decided that the Employment Judge had taken an unduly technical approach to the pleadings and not taken sufficient account of the fact that the Claimant was representing herself and the domestic context of the events he was dealing with. In particular:
(1) It was not clear that the Claimant had really conceded that she was not expressly dismissed on 15 October 2016 or that it would have been fair to hold her to such a concession;
(2) On a fair reading of the pleadings it would have been open to the Employment Judge to decide the case on the basis of a constructive dismissal or a dismissal on 16 October 2016;
(3) In any event he ought to have at least considered allowing an amendment to reflect the various possibilities if that was necessary.
In the circumstances the Claimant had not had a fair hearing and the case would be remitted to another Employment Judge.
HIS HONOUR JUDGE SHANKS
"Keith Trickett took over and employed me 1st September 2016, and dismissed me on 15th October 2016 just over 6 weeks later. Not given a reason for dismissal, no warnings, nothing in writing, no process or procedures done. Told that night "this is your last shift tonight" "that's it we're done". The spurious reason was that Keith's dog was in the restaurant during food service and I didn't manage to get it out. Dog wouldn't come when called. Told Keith shouldn't be in the restaurant and it's not my dog. He lost his temper [which] made me feel very demoralised, and said "that's it we're done". The next day on the Sunday I went to collect my wages and to see if my job was defiantly [by which I think she means "definitely"] terminated and was told by Keith "we would of got rid of you in the first week if it wasn't for your parents! We [have] been putting up with you". In the first week I did everything [to] help as much as I could, I was excited about the change, they had plenty of good ideas and seemed to be ok with my work, so was a shock for Keith to say that."
"… Everything went ok until Saturday 15th October. Julie [that is the Claimant] came into work and seemed very offish and agitated and aggressive. …"
There is then a description of matters and this:
"… She then went back up to the bar. 5 Minutes later she came back into the kitchen and shouted at Jackie [which is Mr Trickett's partner] your f…ing dog is in the restaurant, Jackie said tell her to get out and she will go, Julie replied at the top of her voice it's not my f…ing dog so I told Julie in front of three other witnesses to get back up to [the] bar, and this would be the last busy night shift she would work. So she went back to the bar, two minutes later she went up to Jackie in the restaurant and said if I'm f…ing sacked I'm going now, Jackie said Keith didn't say you were sacked he said this is the last night shift you would work. She then walked back down to the kitchen and shouted at me, if I'm f…ing sacked I'm going now. I then said again to Julie in front of the witness, I didn't say you were sacked I said this is the last busy night shift, you would work, from now on you will be on day shifts and Julie left the kitchen. Ten minutes later a customer came down to the kitchen to see if he could get served at the bar, Jackie went up to the bar to see where Julie was and she had walked out leaving a full bar unattended with cash in the till and customers waiting. I then had to get someone to manage the restaurant so that Jackie could look after the bar. I didn't see Julie then until the Sunday [which as I understand it was the following day, 16 October] I was in the restaurant Jackie was serving at the bar. Julie walked up to Jackie and asked for her wages and where I was, Jackie told her I was in the restaurant, whilst Jackie was getting her wages out of the safe. Julie shouted across the restaurant bar at me, so I'm f…ing sacked am I. I said no you walked out Jackie came up handed me her wages, she turned and went to walk out I said I will get your tips money for now and Julie said stick them up your ass and walked out and I haven't seen or heard from her since.
After finding out that Julie was taking me to a tribunal, I then asked the other staff members to see a copy of their contract of Employment, so I knew where I stood with Julie to find out that no one has ever had [an] employment contract from the previous employer.
All witnesses to all the events that happened are willing to give statements."
"I went back into the kitchen to clarify what he meant. I asked if that was it after tonight. He said I had mis-heard him and that he said "This is your last busy shift tonight. You're not working a night shift again". I said "that's unreasonable". Then he shouted at me about spilling cream to which I apologised. If I realised I would have cleaned it up straight away. Then he shouted at me again that customers are not coming in because of me, because of one incident that happened months ago that Mark Sheppardson brought up on a Wednesday evening. Then Keith told me to get out. I was upset and shaking, I got my bag and jacket, Jacquie was wiping a table, I said to her "I am very upset" and that I was going. She smiled at me and said "whatever". On the way out from the front bar Sandra and Tony were at the bar who I served before going out, this was about 9.40pm when I left. I did speak to my dad that night around 11pm when he got back from being out and he said he would talk to Keith. I messaged my cousin when I got home after I was unfairly dismissed."
"I asked if we could talk in the restaurant because I was hoping to sort this out, not in front of the few customers in the front bar. Keith was very abrupt with me and said he would have got rid of you in the first place if it wasn't for your parents, we've been putting up with you. As he said this he was bashing his fist down on the counter, mocking the way he did this before and saying "how do you like this?" banging his fist down. I left straight away upset and in disbelief again."
"18. In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a tribunal may have lost jurisdiction on time grounds; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand in hand with it, can be provided for both by the parties and by the tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. That is why there is a system of claim and response, and why an employment tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings."
It seems to me in this case that the essence of the case was that the Claimant had been unfairly dismissed as a consequence of the events on 15 and 16 October 2016 and that she had sufficiently raised that in her ET1.