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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Kennedy (t/a Snappy Snaps) v Warwick [2004] UKEAT 0118_04_2112 (21 December 2004) URL: https://www.bailii.org/uk/cases/UKEAT/2004/0118_04_2112.html Cite as: [2004] UKEAT 0118_04_2112, [2004] UKEAT 118_4_2112 |
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At the Tribunal | |
On 25 October 2004 | |
Before
HIS HONOUR JUDGE D SEROTA QC
MR J MALLENDER
MR G H WRIGHT MBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR KENNEDY IN PERSON |
For the Respondent | MISS ANNA BEALE (Of Counsel) Instructed by: Messrs Gotelee & Goldsmith Solicitors 31-41 Elm Street Ipswich Suffolk IP1 2AY |
The decision of the ET that the Claimant was unfairly dismissed cannot be reversed. There was no improper conduct on the part of the ET. Its procedural decisions were well within the ambit of its discretion.
HIS HONOUR JUDGE SEROTA QC
Factual Background
The Tribunal's Decision on Liability
The Employment Tribunal Decision on Remedies
Grounds of Appeal and Submissions in Support
Mr Kennedy's Ground (D)
"' …the Tribunal accept the evidence of the applicant that his concern was simply that he might not have enough money to enable him and his partner to meet their bills at the beginning of each month'. The Applicant had conceded that this was all part of his illness."
Mr Kennedy submitted this was inconsistent with the evidence and may be wrong in law. He maintained that the Applicant told him "dishonestly on 28 October he could not change his bills because they were Direct Debits rather than Standing Orders." In fact they were Standing Orders rather than Direct Debits. He was also dishonest in claiming his wages were due on 28 October. Mr Warwick was dishonest in claiming time off work. The Employment Tribunal should have regarded Mr Warwick as dishonest but they did not do so. Mr Kennedy maintained that Mr Warwick was also dishonest in stating that he had been off work for two weeks in June 2002 when he had only been off in fact for seven days. This was something that the Employment Tribunal did not deal with. In the circumstances it was perverse for the Employment Tribunal not to find some form of contributory fault.
"We are now currently looking into the fact that Mr Warwick was working while receiving Incapacity Benefit and we had no correspondence from him to make us aware of this fact."
It is evident that this letter was written after a telephone conversation between Mr Warwick and an employee of Jobcentre Plus, Miss Theresa Blair. Jobcentre Plus asked Mr Kennedy to provide details of Mr Warwick's employment with Persil "as up until that point Mr Warwick had been in receipt of Incapacity Benefit with no record of him participating in any kind of Permitted Work." It is said that this is highly damaging to Mr Warwick's credibility and the evidence he gave to the Employment Tribunal. Mr Kennedy also sought to rely upon a further letter dated apparently 3 March 2004 from Miss McCarthy at Jobcentre Plus, again after a further telephone conversation Mr Kennedy had had with Miss Blair in which he had informed Jobcentre Plus that Mr Warwick had been working for Persil since April 2003. Miss McCarthy wrote:
"At the time we were unaware of this information and Miss Blair asked you to provide any details that you had about this, to our office.
The fact that Mr Warwick was working whilst in receipt of Incapacity Benefit is being looked into."
"I initially managed to find a position with Persil Services Limited, a photographic lab within Sainsburys. I applied for this position via the internet through Reed Recruitment. It was a part-time position, 15 hours per week. Under the incapacity benefit scheme, I was allowed to work 15 hours per week. My income went over the £67 per week limit and accordingly, my benefits stopped. I started working for Persil Services on 22nd April 2003 and I stopped working there on 14th December 2003. I had found myself another job with Topps Tiles Limited as a sales selling tiles and flooring adhesives etc. …"
Mr Kennedy maintained that the witness statement could not be correct in the light of the letters from the Jobcentre and the evidence contained in those letters would have impacted on his credibility.
The Applicant's Submissions
"Such an appeal ought only to succeed where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has 'grave doubts' about the decision of the Employment Tribunal, it must proceed with 'great care': British Telecommunications plc v Sheridan [1990] IRLR 27 at paragraph 34.
Over the years there have been frequent attempts, consistently resisted by the Employment Appeal Tribunal, to present appeals on fact as questions of law. The technique sometimes employed is to trawl through the extended reasons of an employment tribunal, selecting adverse findings of fact on specific issues on which there was a conflict of oral evidence, and alleging, without adequate particulars, supporting material or even proper grounds, that these particular findings of fact are perverse and that therefore the overall decision is perverse. …
Inevitably, there will from time to time be cases in which an employment tribunal has unfortunately erred by misunderstanding the evidence, leading it to make a crucial finding of fact unsupported by evidence or contrary to uncontradicted evidence. In such cases the appeal will usually succeed. But no appeal on a question of law should be allowed to be turned into a rehearing of parts of the evidence by the Employment Appeal Tribunal. I am, of course, well aware that this is easier said than done, especially when, as here, neither side was legally represented on the first level of appeal. As the Employment Appeal Tribunal was well aware, unrepresented litigants have understandable problems in separating questions of law from proof of facts and in distinguishing the making of legal submissions from submissions of fact, even giving evidence in the course of submissions.
(i) the evidence could not have been obtained with reasonable diligence for use at the Employment Tribunal.
(ii) it is relevant and would probably have had an important influence on the result of the case
(iii) it is apparently credible."
"As regards money .coming to the plaintiff under a contract of insurance, I think that the real and substantial reason for disregarding them is that the plaintiff has brought them and that it would be unjust and unreasonable to hold that the money which he prudently spent on premiums and the benefit from it should enure to the benefit of the tortfeasor. Here again I think that the explanation that this is too remote is artificial and unreal. Why should the plaintiff be left worse off than if he had never insured? In that case he would have got the benefit of the premium money: if he had not spent it he would have had it in his possession at the time of the accident grossed up at compound interest. …"
Conclusions
"I interrupted to point out to Mr Kennedy who had complaints of automatic unfair dismissal and disability had been withdrawn. He said that he wished to question the Applicant. The Chairman told him that he wished to argue that the complaint to automatic unfair dismissal and disability discrimination had been included maliciously or vexatiously to enable the Applicant to put additional pressure on him to achieve a settlement.
I told Mr Kennedy that there was nothing on the papers, or in the evidence heard from the Applicant to suggest that this was a vexatious or malicious complaint and reminded him that in any event the complaints had long since been withdrawn. I also had it in mind that these matters had already been discussed and dealt with at the commencement of the hearing.
And further that, the Applicant has responded that both had the benefit of legal advice when the proceedings were commenced, cross-examination of Mr Warwick as to why he had included then withdrawn other complaints was no longer relevant to the remaining issues of unfair and wrongful dismissal."
Merits - Ground (C)
Merits - Ground (D)
"17 The Tribunal accepts the evidence of the applicant that he was suffering from depression. As Mr Warwick said "small things became big problems". With regard to his anxieties over whether he would be paid on time Mr Warwick said "That was the whole thing".
We also refer to paragraph 26 of the Extended Reasons:
"The depression of the applicant caused him to be uncommunicative and also lead to his suffering anxieties about when he would be receiving his pay cheque which were not entirely justified but which were nevertheless real."
Remedy - Ground (A)
Remedy - Ground (B)
Remedy – Ground (C)