Appeal No. EAT/0782/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 March 2002

Before
HIS HONOUR JUDGE PETER CLARK
MS J DRAKE
MR K M YOUNG CBE

MRS G WHITLOCK	APPELLANT

MR K T DOBSON	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A MAYNARD
(Solicitor)
Messrs Andrew Maynard & Co
Solicitors
6 Gay Street
Bath
BA1 2PH	
For the Respondent	MISS A PALMER
(of Counsel)
Instructed By:
Messrs Stone King
Solicitors
13 Queen Square
Bath 
BA1 2HJ	

JUDGE PETER CLARK:
1.	In this case Mrs Whitlock complains of unfair dismissal by her former employer, Mr Dobson, by whom she was employed as a full time assistant in his newsagent shop.  The claim was resisted, among other grounds, on the basis that there was here no dismissal.  Originally the complaint came before a Tribunal sitting at Bristol under the chairmanship of Ms Tess Gill on 3 November 2000.  The Respondent did not attend on that occasion.  That Tribunal accepted the evidence of the Appellant as to a critical telephone conversation which took place on 9 June 2000 between the Appellant and the Respondent.

2.	On their finding of fact they concluded that the Appellant had been dismissed; that her dismissal was unfair and went on to award her compensation in the sum of £4,861.94.  That decision (the first decision) was promulgated with extended reasons on 21 November 2000. 

3.	The Respondent applied successfully for a review of the first decision.  A review hearing took place before a second Tribunal chaired by Mr D M Simpson on 20 April 2001.  On that occasion the Respondent appeared and the Tribunal heard oral evidence from both the Appellant and Respondent as to the relevant telephone conversation between them.

4.	It is clear from the extended reasons for the Simpson Tribunals review decision that there was a critical factual dispute between the parties as to what was said during that conversation.  It is recorded at paragraph 6.5 of their reasons, under the heading FACTS, as follows:

“On the 9 June 2000 the applicant telephoned the respondent for the first time since her illness and had a conversation with him in which the only words which she was certain were spoken by the respondent were “parting company.”  The context of these words was not recalled.  The respondent’s recollection of that conversation, which he found astonishing, is that the applicant told him that she would not be returning to work and proposed to live on benefits and help look after her grandchildren.”

Unfortunately, the Tribunal makes no clear findings of fact as to precisely what was said between the parties on that occasion.  Plainly the matter was in dispute.  

5.	In these circumstances the Tribunal expressed their decision on the issues of whether or not the Appellant was dismissed by the Respondent, that is whether there was an actual dismissal within the meaning of section 95(1)(a) of the Employment Rights Act 1996 at paragraph 8 in this way:

“The issue we have to determine is whether or not there was a dismissal.  It is not a question of constructive dismissal but one of actual dismissal, which requires an intention on the part of the respondent to bring the employment contract to an end.  As we have established, the burden of proof in this respect lies with the applicant.  We are not satisfied, on the balance of probabilities, that the respondent had any intent to bring such a contract to an end or otherwise to dismiss the applicant and the Originating Application, on the grounds of dismissal, must therefore itself be dismissed.”

6.	Accordingly, the unfair dismissal claim was dismissed.  In this appeal against the review decision 2 points are taken on behalf of Mrs Whitlock:
(1)	the Tribunal failed to make a necessary finding of fact as to the precise contents of the disputed telephone conversation on 9 June 2000.  See Levy v. Marrable and Co Ltd [1984] ICR 583
(2)	the Tribunal applied the wrong legal test in determining whether or not a dismissal had taken place.  It is common ground between the advocates before us, based on the Court of Appeal decision in Sothern v. Franks Charlesly and Co [1981] IRLR 278 and a number of EAT authorities, that the principles to be applied are accurately summarised in Harvey on Industrial Relations and Employment Law D1-229 as follows:
(i)	the intention of the speaker is not the relevant test.
(ii)	if the words used by the speaker are on their face ambiguous then the test is how those words would have been understood by a reasonable listener in the context of the surrounding circumstances.  Thus the test is objective; it does not depend upon the subjective intention of the speaker or the subjective understanding of the listener.

7.	In these circumstances it is contended that the Tribunal has fallen into a double error.  They have applied the wrong legal test to an unresolved conflict of fact.  In seeking to sustain the review decision, Miss Palmer accepts that the Tribunal applied the wrong test and that they ought to have made the relevant findings of fact in relation to the disputed telephone conversation.  However she submits that on the evidence of the Appellant recorded at paragraph 6.5 of the review decision of reasons, the result, if the correct test is applied, would inevitably be the same and accordingly she invites us to dismiss the appeal on the basis of the principles set out by the Court of Appeal in Dobie v. Burns International Security [1984] ICR 812.  

8.	We are unable to accept that submission.  It seems to us that this case turns on first, the relevant finding of fact and secondly the correct application of the law to that finding of fact.  We could only affirm the decision notwithstanding the two errors of law, which we find the Tribunal to have made, if the result is plainly and unarguably correct.  It can hardly be that if on the Appellant’s evidence alone the Gill Tribunal found that she had been dismissed.  

9.	In these circumstances we shall allow the appeal and remit this case to the Employment Tribunal for sadly, a third hearing.  Ms Palmer submits that it should return to the same Tribunal, Mr Maynard opposes that suggestion.  We think this is one of those cases where no advantage would be gained by sending it back to the same Tribunal, it being a short case.  On the other hand, there is the disadvantage that a perception may arise, the case having been decided against the Appellant in the first instance that she will be unfairly disadvantaged if the same Tribunal hears the case on the remission.  In these circumstances we shall direct that the case be heard by a fresh Tribunal, that is a pannel consisting of none of the members of either the Gill or the Simpson Tribunals.