Appeal No.EAT/220/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 July 1998

Before
THE HONOURABLE MR JUSTICE KIRKWOOD
MR S M SPRINGER MBE
MRS R A VICKERS

MR K C STEVENS	APPELLANT

MR R A BEDDALL 	RESPONDENT
T/A STUBBINGTON ENGINEERING

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	APPELLANT IN PERSON	

	MR JUSTICE KIRKWOOD:   This is the Preliminary Hearing of an appeal by an employee against a decision of an Industrial Tribunal sitting at Southampton, dismissing his complaint of unfair dismissal and breach of contract.  The Tribunal found as a fact that the employee was not dismissed.  The Tribunal gave its decision on 23 July 1997 when it heard the case and sent Extended Reasons for the decision to the parties on 15 October.

	The grounds of this appeal, which are comprehensive and which we have read, all amount to challenges to findings of fact on the basis that such findings were perverse.  

	An appeal from the decision of an Industrial Tribunal lies to the Employment Appeal Tribunal on a point of law only.  The task of the Industrial Tribunal is to decide the facts of what happened.  The Tribunal does that by considering all the written material before it and by considering all the oral evidence before it.  It must then decide which evidence it accepts and which it rejects; the evidence of which witness it prefers and evidence of which witness it does not accept.  In that way it reaches its conclusions on the facts.  The Tribunal then must apply the relevant law to the facts as it finds them to be.  Findings of fact are in the exclusive preserve of the Industrial Tribunal.  Directions as to the law are open to consideration upon an appeal if the Tribunal got the law wrong.  Findings of fact can only be challenged in this Appeal Tribunal if it can be demonstrated that the Tribunal made a finding of fact in the absence of any evidence at all to support it, or if the Tribunal made a finding of fact in circumstances where there was some evidence but the evidence the other way was so overwhelming that no reasonable Tribunal could possibly have reached the conclusion that was reached.

	In this case the Industrial Tribunal found that the Appellant was employed by the Respondent from March 1991 until March 1997 as a Capstan Setter Operator.  It found that the business of the Respondent was in relation to sub-contract machinery; they had a factory at Fareham and an office in Gloucester.  There were three partners; Mr M Beddall, Mr R Beddall and Mr R Beddall’s wife.  Mr M Beddall was based, so the Tribunal found, at Fareham, where he acted as Quality Control Manager.  In all ten persons were employed there.

	The Tribunal found that Mr R Beddall was involved in sales, commercial work and finance.  The Gloucester office was a small part of the operation being staffed by one employee on one day a week.  

	The Industrial Tribunal specifically accepted the evidence for the Respondent that Mr M Beddall dealt with hiring and dismissing staff and that Mr R Beddall did not.  That is the first finding of fact challenged as being perverse.

	In the Notice of Appeal, the Appellant, Mr Stevens [the employee], says that Mr R and Mr M Beddall were equal partners and employers of the Appellant.  There was no clear delineation of authority between the partners in the eyes of the workforce.  Mr R Beddall was fully involved in the running of the business.  He addressed the workforce.  He wrote correspondence to the Appellant.  Mr R Beddall and Mr M Beddall carefully discussed issues relating to their business.  Therefore, it is submitted, Mr R Beddall had the power and ostensible authority to dismiss the Appellant.  The Tribunal finding that he was not involved in hiring and dismissing staff is wrong and given too much weight of evidence.  Thus, it is submitted, it is perverse.

	On 5 March 1997 the Appellant was certified as unfit for work by his doctor with clinical depression.  The same day he saw Mr M Beddall about his sickness absence.  On 13 March the Appellant saw Mr R Beddall at Fareham to collect his pay.  Mr R Beddall was at the firm on Thursdays to pay the wages.  There was a dispute about the payment of statutory sick pay. According to the Appellant, Mr R Beddall said he was not getting any more.  The Appellant said he would see a solicitor.  The Appellant’s account is that Mr R Beddall said “while you are there, find another job”.  The Respondent’s account (that, indeed, of Mr R Beddall) was that he did not say that.  He said “if we are such an awful firm, why have you been with us for so long?”  According to Mr Beddall the Appellant replied “what did you say then,  I have got to find another job?”  Mr R Beddall said “you know precisely what I said Keith”.

	The Industrial Tribunal having heard the evidence of both sides about that found in favour of the Respondent.  That was of course absolutely essential to the case because it was that event that the Appellant said amounted to his dismissal.  

	The Tribunal found that on 13 March the Appellant wrote to the Respondents a letter in which he said:
“Mr R Beddall’s conduct today which removed my position from the above company.
You will forward SSP1 and my Sick Certificate to the above address by return of post.”

	On 19 March 1997 the Respondent wrote back to the Appellant asking if he was resigning by virtue of the request for the Form SSP1 and asking for a formal letter of resignation if that were the case.  The letter also contained an official warning concerning what was described as the Appellant’s “unacceptable attitude” on the 13th March.

	The Tribunal expressed these findings in paragraph 9 of the Extended Reasons:
“..... On 13th March he met with Mr R Beddall for the purposes of collecting wages and on 17th March he met Mr M Beddall when collecting his tools from the Respondent’s premises.”

In paragraph 14(b) they said this:
“There was other evidence of confusion on the Applicant’s part in relation to his meeting with Mr M Beddall on 17th March when attending the Respondent’s premises to collect his tools.  The Applicant alleged that Mr Beddall was verbally and physically aggressive towards him.  This was denied by Mr Beddall.  We accepted Mr Beddall’s version, particularly since the Applicant admitted to not being very well at the time and being taken aback, he says, by the sheer force of Mr Beddall’s words.  The Applicant admitted that he himself lost his temper.
It was, of course, unfortunate for the Applicant that he was unwell in this way and this, together with his admission of confusion and being close to breakdown at the meeting on 13th March, casts some doubt in our minds as to the ability of the Applicant to record and remember what has been said.  This contrasted with the evidence of the Beddall brothers which was given clearly and persuasively.”

	The second pleaded ground of appeal is that the reference to 17 March was wrong.  The meeting occurred either on 26 or 27 March and in that sense the finding is perverse.  It seems to us, in hearing this matter on an ex parte basis, that it may well be right that the reference to 17 March in the Extended Reasons is an error, and the proper reference should be 27 March.  But it is not an error of a kind that goes to the heart of the decision of the Industrial Tribunal and is not something from which an appeal can properly be founded.  More particularly, the Appellant contends, that the whole of those findings to which I have referred, are based on a misunderstanding of evidence.

	The third ground of appeal is in relation to paragraph 11 of the Extended Reasons, in which the Tribunal said:
“..... The Applicant told the Tribunal that he went to the office where Mr R Beddall was situated and was given his wage packet.  The Applicant knew that invariably Mr R Beddall was at the Fareham premises on a Thursday when he paid the employees.”

This third ground of appeal is not really addressed to those two concise sentences, but is addressed to argument that was before the Industrial Tribunal, so we are told, that the Appellant had deliberately, and in a sense voluntarily, gone along to the office on 13 March when it was the Appellant’s case that he had to go because the Respondent employer had refused to hand his wage packet over to somebody on his behalf.  We fail to see how that argument set out in the Notice of Appeal begins to impugn the finding of fact that the Industrial Tribunal made.

	In paragraph 14 of its Extended Reasons the Industrial Tribunal makes a number of specific findings in sub-paragraphs (a) to (j) which really go to credibility and those findings in the sub-paragraphs follow this passage in the reasons:
“..... We found that the Applicant was not able to show that it was more likely than not that he was dismissed and that words were spoken by Mr R Beddall in the manner alleged by the Applicant for the following reasons which have led us to prefer the evidence of the Respondent in this case to that of the Applicant, having had the benefit of seeing and hearing the witnesses give their evidence:”

The balance of the Notice of Appeal goes to challenging not all, but almost all, the sub-paragraphs in the Extended Reasons that follow.

	Nowhere is it suggested in the Notice of Appeal that the finding was made in the absence of any evidence; rather, it is the case that the Appellant contends that the Industrial Tribunal, time and again, drew wrong conclusions from the evidence before it.  

	We have listened to Mr Stevens undertaking what we recognise to be the difficult task of addressing us on his Notice of Appeal which he did for some seventy minutes.  He was represented before the Industrial Tribunal by a solicitor and Counsel.  He told us that he in fact gave his solicitor all the relevant material.  It is his view, however, that the Barrister whom he only met, he tells us, for approximately a half hour before the hearing, really did not know or understand much about the case.  However, it was a repeated theme of Mr Stevens oral submissions to us that “all this was brought up in Court”.  

	It seems clear to us that nothing of any material significance has been addressed to us in the Notice of Appeal or in the oral argument upon it, that is, in any sense, new.  

	I return to where I began this short judgment by explaining the function of the Industrial Tribunal as to findings of fact and as to application of the law.  There is no suggestion here that the Industrial Tribunal applied the law wrongly.  The suggestion is that it made findings of fact which were perverse.  I indicated what perverse means in this context.  It does not mean findings of fact with which the Appellant disagrees.  Nor does it mean findings of fact that the Appellant for himself finds outrageous.  It means findings of fact reached in the absence of any evidence, or in the light of evidence, totally overweighed by evidence going the other way.  This is not such a case.  We are completely unpersuaded that there is an arguable point of law to go to a full hearing of this appeal and therefore this appeal will be dismissed at this stage.