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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Nidus (UK) Ltd v. Carey [2001] UKEAT 681_01_1209 (12 September 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/681_01_1209.html Cite as: [2001] UKEAT 681_1_1209, [2001] UKEAT 681_01_1209

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APPEARANCES

 

For the Appellant	MR F SCOON (Advocate) Peninsula Business Services Limited Riverside New Bailey Street Manchester M3 5PB


 


MISS RECORDER ELIZABETH SLADE QC:

1. This is the preliminary hearing of an appeal by Nidus (UK) Limited against the decision of an Employment Tribunal which held that a Mr Carey had been dismissed and that he had been unfairly dismissed.
2. The grounds of appeal challenge the finding of dismissal. There are a number of references in the grounds of appeal to the approach of the Chairman of the Tribunal. In effect, the allegation is that the Chairman did not afford the Appellants a fair hearing. In addition a specific complaint is made about a failure in the Tribunal's Decision to refer to certain correspondence.
3. The facts briefly stated are as follows. The employee was suspended from duty on 16 December 1999. Thereafter, it was said on behalf of the Appellants before us, that efforts were made to contact the employee whilst he was suspended. The correspondence placed before the Tribunal did show that letters were written to the employee by the company, in particular, letters of 14 January 2001 and the 7 January 2000, the latter stated that "We have tried to contact you on numerous occasions during the past few weeks to no avail".
4. It appears that the employee went to see the Citizens Advice Bureau who wrote letters on his behalf including on 3 February 2000 a letter asking "Has our client been dismissed?". That question was never specifically answered and on 6 March 2000 the Appellants before us wrote to the employee stating "If you feel you are entitled to additional hours please send us a valid time sheet and the final payroll will be completed and a P45 issued".
5. Mr Scoon, who presented the company's case before us, also represented the company before the Employment Tribunal. He says that it was argued before the Tribunal that there was no dismissal in these circumstances. He says that no argument was advanced before the Tribunal that if there had been a dismissal then the dismissal was a fair dismissal. He points out that the employee's conduct was relied upon in argument before the Tribunal to support a contention that if there was a finding of unfair dismissal then there should be substantial deductions from the award by reason of contributory conduct.
6. In argument before us Mr Scoon contends that the Tribunal erred in finding that there was a dismissal. He contends that the failure by the employee to contact the company following his suspension was a breach of contract by him. He refers to the employee's inaction as constituting a breach of contract and, in effect, suggested to us that the Tribunal erred in failing to hold that that inaction itself brought the contract to an end and therefore the finding of dismissal was made in error. He also points to the fact that no reference was made in the Tribunal's decision to the letters of 7 and 14 January which were written by the company to the employee evidencing its attempt to contact the Applicant.
7. Complaint is made about the conduct of the Tribunal Chairman but no argument has been addressed to us as to how that conduct had an effect on the conclusions reached by the Tribunal, save perhaps for the refusal of the Chairman to allow an amendment to permit the Respondents to alter their Notice of Appearance from an acceptance that there had been a dismissal to a denial of dismissal.
8. Turning first to the contention that the finding of dismissal was reached in error of law, in our judgment there plainly was no error of law in the Tribunal's conclusion that there had been a dismissal in this case. It could have reached no other conclusion on the evidence which it recorded (and which we are told was presented to it) other than there had been a dismissal.
9. On the argument present to it on behalf of the company, the employee had been suspended and it is said that during his suspension, by reason of his activity, there was a breach of contract by the employee. The word "inaction" was used, as I have said earlier.
10. As a matter of law a unilateral breach of contract does not bring a contract of employment to an end. That breach has to be accepted in order for the contract to come to an end and that is what the Tribunal in this case had concluded had occurred and had occurred by, as it found, the time of the writing of the letter of 6 March 2000 since, as it found in paragraph 11 of its decision, there is a reference in that letter to a P45 and a final payroll.
11. In our judgment there is plainly no error of law in the conclusion of the Tribunal that there had been a dismissal in this case. In paragraph 12 of its Decision the Tribunal state:

"Since there was no attempt by the Respondents to justify that dismissal, we cannot find that it was anything other than unfair and unreasonable within the meaning of section 98(4) Employment Rights Act 1996.

12. There is no ground of appeal in the grounds presented to us attacking the conclusions of the Tribunal on the fairness of the dismissal. In circumstances where no reason is advanced by an employer for the dismissal the conclusion which this Tribunal reached was hardly surprising but, as we say, there is no ground of appeal in the Notice of Appeal attacking the conclusion on the unfairness of the dismissal.
13. That, in itself, is sufficient to dispose of this appeal but we turn briefly to the allegations relating to the conduct of the Tribunal and the failure of the Tribunal to mention the two letters of 7 and 14 January 2000.
14. It appears to us that there is a perfectly respectable argument that the conclusion of the Tribunal in paragraph 11 of its Decision that "We were not satisfied that the Respondents made efforts to contact the Applicant" was a conclusion which was not warranted by the evidence presented to it, namely the evidence of those two letters and in that sense it could be said that the conclusion was a perverse conclusion. However, having regard to the matters which we have explained earlier in this judgment, unfortunately for this Appellant, that possible perversity in the factual finding is not a material perversity and did not and does not affect the outcome of this case.
15. So far as the allegation relating to the conduct of the Chairman is concerned, we note that there are no comments by the Chairman on the allegations made about his conduct but we also note that he was invited to comment by letter dated 23 August in readiness for today's date, 12 September, a relatively short period of time over what may have been a holiday period.
16. Since we have had no comment from the Chairman on the allegations relating to his conduct we have been unable to form a view as to the conduct which is described in the Notice of Appeal. We simply observe that, obviously, as all Tribunal Chairmen are aware, it is necessary for them to conduct proceedings with the utmost courtesy and consideration for those who appear before them and to the parties. For the reasons we have expressed earlier in this judgment this appeal must be dismissed.