Appeal No. UKEAT/0028/11/ZT
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At
the Tribunal
On
10 June 2011
Before
HIS
HONOUR JUDGE PETER CLARK
SIR ALISTAIR GRAHAM KBE
MS P TATLOW
MR
M SYMONDS T/A SYMONDS SOLICITORS APPELLANT
MISS
S REDMOND-ORD RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
UNFAIR DISMISSAL –
Constructive dismissal
PRACTICE AND PROCEDURE –
Perversity
Finding of fact contrary to agreed evidence leading to Employment
Tribunal preferring Claimant’s evidence to that of Respondent on central
factual issue on which finding of constructive unfair dismissal.
Applying Piggott v Jackson, per Lord Donaldson MR,
[1992] ICR 85, 92D, appeal allowed and case remitted to fresh Employment Tribunal
for re-hearing.
HIS HONOUR JUDGE PETER CLARK
Introduction
1.
The issue in this constructive unfair dismissal claim revolved around a
conflict of evidence given by the Claimant, Miss Redmond‑Ord, and
the Respondent, Mr Symonds. That conflict was resolved in favour of the
Claimant by a Tribunal chaired by Employment Judge Carstairs sitting at Exeter on 15 October 2010. Her complaint was upheld by a Judgment dated
15 October 2010; the Reasons promulgated on
1 November 2010. By a subsequent remedies Judgment dated
3 December 2010 the Claimant was awarded compensation totalling
£6,099.57. Against the finding of unfair dismissal the Respondent now appeals.
2.
Questions of fact are for the Employment Tribunal. However, a Tribunal
will fall into error if it makes a material finding of fact that is unsupported
by any evidence (see Piggott Brothers Ltd v Jackson [1992] ICR 85 92D, per Lord Donaldson of Lymington MR).
It necessarily follows that a finding made contrary to the agreed evidence
before the Tribunal falls into this category.
The Facts
3.
The Respondent is a solicitor and was at the time a sole practitioner.
The Claimant worked as his PA/Legal Secretary between 1 August 2005
and 13 November 2007, when she left for other employment. She
returned to his employ on 4 January 2008.
4.
The finding of fact challenged by the Respondent in this appeal appears
at paragraph 3.6 of the Tribunal’s Reasons, where the Tribunal say this:
“They [the parties] met
on 9 October at the La Tasca Tapas Bar to discuss the claimant’s plans.
The claimant told Mr Symonds that she needed a break and wished to travel
to Africa and to Nepal for voluntary work until February 2010.
Mr Symonds was supportive of this. Mr Symonds denied that the
claimant had mentioned going to Nepal but in cross‑examination, when
confronted with the Claimant’s blog page referring to his having commented that
she should not tell his wife otherwise his wife would want to go, he accepted
that it had been mentioned. Accordingly the tribunal has accepted the claimant’s
evidence that she did tell Mr Symonds that she intended to go to Nepal in January and that he accepted that.”
5.
It seems clear to us that the Tribunal chose to prefer the Claimant’s
evidence on the matters in issue and in particular the question as to whether
she gave Mr Symonds the dates on which she was going to travel at that
meeting in the restaurant. By reason of the expression “accordingly” the
Tribunal has accepted the Claimant’s evidence, and later in paragraph 3.7
where they say:
“Bearing in mind the tribunal’s findings about the Nepal
discussion, the tribunal is satisfied that there would have been no need for a
discussion in December but that there would be such a discussion only after the
claimant returned from the January Nepal journey.”
6.
In short we accept Miss Gardiner’s submission on behalf of the
Respondent that that finding of fact, the change in the account given by
Mr Symonds as found by the Tribunal, was central to their subsequent fact‑finding
exercise. The difficulty is that the Respondent did not deny that the Claimant
had mentioned going to Nepal at that meeting in the restaurant. We see in the
particulars given of the Respondent’s defence in the form ET3 at
paragraphs 12‑13 that it is pleaded that, at the meeting on
9 October 2009, “the Claimant told the Respondent that she had an
opportunity to go to Nepal to work with elephants in the Chitwan National Park.” However, he went on, and this matter is in dispute:
“She had not made any firm plans about undertaking the trip and
she provided the Respondent with no dates as to when she might be away.”
7.
That is the real factual issue in this case. That account is echoed in
Mr Symonds’ witness statement. At paragraph 19 he said this: “We did
discuss her opportunity to go to Nepal to work with elephants in the Chitwan National Park.” We are told, and it is common ground, that the Respondent’s
witness statement stood as his evidence in chief. He was asked one or two
further questions by Miss Gardiner in chief, but none bore on the question
of mentioning Nepal. He was then cross‑examined by Miss Redmond‑Ord,
and we have an agreed note of that cross‑examination which does not bear
on the central point in this appeal. In her helpful skeleton argument
Miss Redmond‑Ord acknowledges that there was never any dispute about
her mentioning Nepal at the restaurant meeting, and she has affirmed that today
in her submissions to us.
Conclusion
8.
It remains a complete mystery as to how the Tribunal got that point so
wrong, but the fact is that they did. Plainly, if it had been of peripheral
significance the appeal might have been determined differently, but we
acknowledge that this finding, completely contrary to the agreed evidence
before the Tribunal, was central to their determination of which account to
believe, and resolution of that factual conflict was in turn central to the
ultimate decision that she was constructively unfairly dismissed and the consequent
remedy Judgment. In these circumstances, following the guidance of
Lord Donaldson, we are bound to allow this appeal and to remit the matter
to the Employment Tribunal for full re-hearing before a fresh Tribunal.
