Appeal No. EAT/756/02/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 November 2002

Before
HIS HONOUR JUDGE J BURKE QC
MRS A GALLICO
MRS M T PROSSER

MR P MILLER	APPELLANT

GRAHAM WILLIAM SUTCLIFFE AND BRENDA SUTCLIFFE 
T/A EASY WEIGH	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE APPELLANT	

JUDGE J BURKE QC:

1	This is the preliminary hearing of the appeal of Mr Miller against the decision of the Employment Tribunal sitting at Southampton, chaired by Mr Trickey and sent with extended reasons to the parties on 7 June 2002.  

2	By that decision the Tribunal decided firstly that Mr Miller had been unfairly dismissed, as the employers had conceded, secondly, that his claim that he had been automatically unfairly dismissed for asserting a statutory right be dismissed, thirdly, that his claim that he had not been given a written statement or a sufficient written statement of the reasons for his dismissal failed, and, fourthly, that he had contributed to his dismissal.  His contribution was assessed by the majority of the Tribunal at 75%, by the minority member of the Tribunal at 25%.  Fifthly, the Tribunal decided that he should receive £849.83 by way of compensation, that sum having been reduced by 75% from the total loss which he established that he had suffered.  

3	Mr Miller is not here today and is not represented.  He has asked us to decide his appeal on the basis of his Notice of Appeal and Skeleton Argument and the other papers before us and we, of course, will do so having read all of those papers with care.

4	We will deal first with his appeal in respect of his claim that he had not been given a proper written statement of particulars of the reasons for his dismissal.  The Tribunal found at paragraph 6 of their Decision that the principal reason for dismissal was the belief by Mr Sutcliffe, who was one of the co-owners of the Respondent’s business, that Mr Miller had sexually harassed a female employee, whom it is not necessary to name.  In other words, the principal reason was misconduct, the sexual harassment which Mr Sutcliffe believed to have occurred.

5	The employers had set out sexual harassment towards that lady as the reason for dismissal in the letter which they had sent on 1 October 2001, in response to Mr Miller’s request for a written statement of such reasons sent on 28 September, the dismissal having been on 21 September.  At paragraph 6(d) of their decision, the Tribunal found that the particulars of reasons given in the written statement, to which we have referred, were adequate and were true, namely sexual harassment towards Mr Miller’s supervisor.  

6	Mr Miller first of all complains that the Tribunal’s decision on this issue is in error.  (1) because it is not sufficiently reasoned, it is not to put it in employment law argot, Meek compliant;  that is to say, it does not comply with the requirements of the well known decision of the Court of Appeal in Meek v The City of Birmingham District Council;  and (2) he complains that the letter should, but did not, state the whole reasons and not just the principal reason for dismissal.  

7	Neither of these points is arguable in our judgment.  The Tribunal’s decision is brief and succinct but is adequate.  They explain that the statement of reasons in that letter were adequate and were true, namely sexual harassment.  No more was needed in our judgment to inform the parties why they had on this issue respectively lost or won, so as to render this aspect of the Tribunal’s decision Meek compliant.

8	As to the reason, there was only one reason for the dismissal, namely the sexual harassment;  although at paragraph 6(a) the Tribunal find that the principal reason for dismissal was Mr Sutcliffe’s belief in sexual harassment, there is nothing in their findings to show that there was any other reason;  and paragraph 6(d) extinguishes the possibility of any other reason by saying that the letter of 1 October was true i.e. it truly reflected what the reasons were.

9	Mr Miller argues that his letter to the female colleague which contained the content which was regarded as sexual harassment also contained an assertion as to other matters, to which we will return in more detail in a moment, and that therefore there were other reasons for the dismissal.  But, in our judgment, it is not arguable that the fact that the letter had other content within it must have led, or did lead, to the conclusion on the part of the Tribunal that there was some other reason in the employer’s mind for dismissing additionally to the sexual harassment.

10	We turn next, as Mr Miller does in his Skeleton Argument, to his section 5 which puts forward his submissions upon his claim that he had been automatically unfairly dismissed.  Here he specifically argues that his letter which caused the female colleague to report to Mr Sutcliffe and then caused Mr Sutcliffe to summon Mr Miller and dismiss him not only contained the content regarded as sexual harassment but also contained an assertion of a statutory right to a written statement of particulars of his terms and conditions of employment and, indeed, a statutory right to be paid in line with what was required by the statutory minimum wages legislation.  Thus, says Mr Miller, since the letter was the reason for dismissal, he was dismissed for asserting a statutory right or statutory rights and the Tribunal should thus have found, he submits, that at least his assertion of a statutory right was one of the reasons in the letter.  He submits that his assertion of statutory right or statutory rights form part of the letter.  The letter was the reason for his dismissal and, therefore, it was equally probable that his dismissal was on account of his assertion of statutory rights in the first part of his letter as the sexual harassment content in the second part of his letter;  and, he says, the Tribunal did not deal with that point.

11	It is quite true that the Tribunal did not deal with it expressly;  they did not need to.  They found as a fact, in paragraph 6, that the principal reason for dismissal was Mr Sutcliffe’s belief that Mr Miller had been guilty of sexual harassment.  They were entitled, on the evidence, so to find that that was the evidence of Mr Sutcliffe;  and they had the letter.  There was, so far as we can see, no evidence that the assertion of a statutory right had any part to play in the dismissal.  Even if the Tribunal thought that it might have done, they clearly did not think that it was the principal reason.  Section 104 of the 1996 Act on which Mr Miller relies, says:

“(1)  An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee –
(a)  ...
(b)  alleged that the employer had infringed a right of his which is a relevant statutory right.”

12	Once the Tribunal have found that the principal reason for the dismissal was not assertion of a statutory right, whatever other reasons there may have been are beside the point.  The Tribunal, as we have said, were entitled to make the finding which they made, there was evidence to support it;  and that meant that Mr Miller’s section 104 claim necessarily had to fail.  We see no arguable error of law, therefore, on the part of the Tribunal in its approach to his section 104 claim.  

13	In section 6 of his Skeleton Argument, Mr Miller returns to his claim in respect of a written statement of the reasons for the employee’s dismissal.  He returns to the point that reasons must be given and not just the principal reason.  We have already dealt with that in referring to the earlier parts of Mr Miller’s Skeleton;  and it is not necessary, in our judgment, for us to go through each and every argument developed by Mr Miller in section 6 of his Skeleton which, for the most part, we have covered by what we have already said.  

14	The Tribunal made a finding as to principal reason, which they were entitled to make, and it is clear from paragraph 6(d) that the only reason was the reason which was also the principal reason.  That being so, the arguments in section 6 of Mr Miller’s Skeleton Arguments do not, in our judgment, give rise to an arguable ground of appeal.  The Tribunal did not misdirect itself in relation to sufficiency of reasons in relation to section 93 and did not arguably err in law.

15	Section 7 of Mr Miller’s Skeleton consists of his suggestions as to what should happen if his appeal is allowed.  He proposes various remissions or directions to the Employment Tribunal;  but that stage is only reached, firstly, if we come to the conclusion at this preliminary hearing that there are arguable grounds, or is an arguable ground of appeal and, secondly, if such appeal on that basis, having gone through to a full hearing, is in some part or in whole successful.  It is not necessary, therefore, to consider any directions at this preliminary stage.

16	At section 8 of his Skeleton Mr Miller returns to the “Adequacy of the Employer’s Statement of a Principal Reason”.  In paragraph 8.1 he says this:

“The ‘principal reason’:  the employer’s belief that the manageress had been sexually harassed, following her allegations to him, involved the acceptance by the Tribunal of the word of the manageress (together with the employer) that such allegations were put to him at that time.  This is a circumstantial finding, as it was not shown that any allegation was referred to during the dismissal (which was witnessed by another employer) and thus could not be ‘shown’ (independently) to have existed at that time.”

We have not found it altogether easy to understand the point that Mr Miller is seeking to make there, but we believe that the thrust of his complaint is that there was not evidence or convincing evidence that the employers had had any report of sexual harassment which they had relied upon as entitling them to dismiss.

17	The Tribunal found as a fact that the employers had received the letter from Mr Miller containing the objectionable material which had been given to them by the recipient of the letter on the very day on which she had received it, after she had telephoned Mr Sutcliffe to tell him what had happened and to complain about it.  It was found as a fact that Mr Sutcliffe did not ask Mr Miller for an explanation or put to him clearly what the allegations were;  and that is the reason why the employers eventually conceded that the dismissal was unfair;  but it was clearly established, and the Tribunal found, that the objectionable content of the letter had been reported to Mr Sutcliffe.  In addition Mr Sutcliffe had heard from the recipient of the letter of an occasion or occasions when she had had trouble from Mr Miller, who was deliberately brushing past her in the shop.  Thus, any criticism on the basis that Mr Sutcliffe did not have at the relevant time the information on which he purported to act appears to us to be unsound.

18	In paragraph 8(2) Mr Miller complains that there is nothing contained in the statement of particulars of reasons for dismissal provided by the employer as to the fact that any complaint or allegation had been made which formed a reason for the dismissal.  That may be true, but there is no reason why, in the letter giving the reason for the dismissal, the employer should set out the history of how he came by his knowledge of the misconduct relied upon or how he has conducted himself, once he has acquired that knowledge.  All he has to do is to state the reason;  and that, according to the Tribunal’s finding, the employers in this case did.

19	In paragraph 8(3) Mr Miller makes the point that the employer’s Notice of Appearance contained particulars which made no reference to a report of a complaint from the recipient of the letter or any particulars of that complaint.  It is true that the Notice of Appearance does not refer in terms to any complaint from the recipient of the letter.  What it does say in the relevant part is that the employers were relying upon “a long-running campaign by the Applicant directed towards the Respondent’s Newport shop manageress, which took the form of unwanted attention to that manageress, and a harassment which caused the manageress considerable disquiet”.  That was sufficient in our judgment.  There was no need for the Notice of Appearance to identify the evidence any further.  If Mr Miller had wanted further details he could have asked for further particulars;  whether he would have got them is another matter;  but the Notice of Appearance did not say and did not need to say or arguably need to say how Mr Sutcliffe had got hold of the material which justified him in making that assertion in the Notice of Appearance;  that was a matter for evidence at the Tribunal.

20	At paragraph 8(4) Mr Miller complains that no details of the allegation, in particular the “brushing past”, were made known or raised prior to the date of the Tribunal hearing and that they only for the first time appeared in one of the witness statements provided by the employers, which was presented on the morning of the hearing.  That may well be true and we are prepared to accept that it was;  but the evidence was, so far as we can tell, given without complaint or objection.  Certainly, Mr Miller does not say that he objected to it.  If he did, the objection must have been overruled;  and no criticism is made of the Tribunal for doing so;  the evidence was heard and the Tribunal were entitled to proceed on the basis of that evidence.  

21	At paragraph 8(5) Mr Miller says that the Tribunal appear neither to have accepted or rejected the alleged “brushing past” and in that state of uncertainty as to the employer’s reasons the Tribunal should not have decided that there was a potentially fair reason or to have concluded against Mr Miller.  The Tribunal in fact at paragraph 5(k) do find that there was a “brushing past”.  They say, in terms:

“There was, however, the allegation of brushing past Miss ... which she confirmed in her evidence to the Tribunal to have been the case, and we accepted what she said.”

22	In paragraph 8(6) Mr Miller says that the Tribunal rejected his claim that the employer was unable to show that he held a potentially fair reason at any time, since the allegation of harassment was not reported i.e. made known by him;  i.e the employer before or during or indeed following his dismissal.  That point, with respect to Mr Miller, involves a confusion.  The fact that he was not given an opportunity to understand the allegations that were made against him and to respond to them was what rendered the dismissal unfair;  but it did not deny the existence of a potentially fair reason.  The Tribunal found, as they were entitled to do, that there was a potentially fair reason;  but they went on to find that, because Mr Miller had not been given a fair opportunity to deal with the allegations against him, the dismissal was in fact unfair.  That was a wholly proper approach and does not contain any error of law.  

23	In paragraph 8.7 Mr Miller complains that the Tribunal stated in relation to the letter that the letter spoke for itself;  and he says that, since the employers were not regarding the letter as a sufficient reason in itself because they were relying on other matters, the letter itself could not constitute a reason.  Again, that is to mistake the correct analysis.  The reason for dismissal was not the letter, it was the sexual harassment or misconduct of which the employers believed Mr Miller was guilty.

24	We have carefully looked at each and every paragraph of the whole of Mr Miller’s Skeleton but, in particular, paragraph 8 with all its subparagraphs.  In our judgment none of it gives rise to any arguable ground of appeal.

25	In paragraph 9, Mr Miller addresses, in relation to the assessment of contribution, the employer’s conduct.  He first of all returns to his point about a statutory right.  He says that the true reason for the dismissal was his exercising of a statutory right.  We have dealt with that already.  The Tribunal found that it was not and, therefore, could not consider that element of Mr Sutcliffe’s case when it came to consider contribution.  He also makes the point that the employer’s dismissal procedure was defective.  The Tribunal found that it was defective and plainly had that in mind in its conclusion that the responsibility for this dismissal had, in some share or another, to be distributed between Mr Miller, on the one hand, and the employer on the other.  Mr Miller then says, again, that the decision was erroneous because it failed to pay any attention or sufficient attention to the part of his letter which complained about the employers and did not contain sexual harassment.  That argument, for the reasons we have already put forward, is simply not tenable.  The Tribunal had rejected Mr Miller’s argument as to the real reason for the dismissal and found that the real reason for the dismissal was sexual harassment.  From that the Tribunal’s task was then to examine Mr Miller’s conduct, that is to say, what he had actually done to see whether it was unreasonable, blameworthy or culpable and then to see whether, and to what extent, that conduct had contributed to the dismissal.  That the Tribunal did.  In effect in this part of Mr Miller’s Skeleton he is seeking to resurrect his earlier arguments which we have dealt with and rejected;  and there is nothing in section 9 which, in our judgment, amounts to an arguable ground of appeal. 

26	Finally, Mr Miller refers to the fact that his assertion as to statutory rights was not only in relation to his entitlement to a statement of his terms and conditions of employment, but also to his rights under the minimum wages legislation.  Recognising that that point was one which was made, we have, in dealing with that part of his case, built in both of his assertions of statutory rights into our consideration and have not limited our consideration to only one or other of them.

27	We have taken time and care to go through Mr Miller’s arguments.  We have considered them all.  None of them, in our judgment, gives rise to an arguable ground of appeal.  Accordingly this appeal is dismissed.