It is rare for the Employment Appeal Tribunal (EAT) to find that a tribunal decision is perverse. In Stone v Burflex (Scaffolding) Ltd, however, it held that the employment judge had acted perversely when he decided that Mr Stone had not asserted a statutory right in the face of evidence which showed that he had.
Thompsons was instructed by Mr Stone’s union, Unite the Union, to act on his behalf.
Basic facts
Mr Stone started work for Burflex at the end of October 2017 as a scaffolder’s labourer. He was paid at the rate of £200 per day when he was working away, a sum agreed orally with the company. The only written document setting out his pay stated that he was entitled to £10 per hour but he had not signed it.
On 29 October 2018, Mr Stone submitted a grievance letter complaining that his wages had been cut and asked for a meeting to discuss a decision to pay him on a different basis. He was then asked to attend a meeting with two managers the following day (30 October). According to the transcript of the meeting, Mr Stone said towards the end that he needed to speak to his union representative and left. Soon after, however, he was summoned by another manager who told him that “Your service is no longer required, I have to let you go, I have to finish you. I was just told to finish you”. The company denied that any such conversation had taken place and claimed that Mr Stone had resigned.
Mr Stone brought a claim for unfair dismissal for asserting a statutory right (in this case, not to suffer unauthorised deductions from his wages) under section 104 of the Employment Rights Act 1996.
Tribunal decision
The judge found that Burflex had not agreed to pay Mr Stone £200 per day, and that he was only entitled to be paid £10 an hour (about £80 a day).
As for the meeting on 30 October, the judge decided that the two managers had not seen Mr Stone’s letter of 29 October before asking him to come and see them. Based on the transcript of the meeting, he found that Mr Stone had not complained about being paid less than he was entitled to, but rather about a lack of transparency regarding the way his pay fluctuated. As such, he concluded that Mr Stone had not positively asserted that his statutory rights had been infringed.
Although he found that Mr Stone had been dismissed, the judge decided that he had been dismissed on the ground of redundancy or some other substantial reason, as the principal reason for his dismissal was related to the availability of work and the withdrawal of a concession to provide him with alternative work.
Mr Stone appealed, arguing that the decision was perverse.
EAT decision
Allowing the appeal, the EAT held that it “made no sense” for the judge to conclude that the managers had not seen Mr Stone’s letter of 29 October, not least because it was clear from a witness statement from one of the managers that the meeting on 30 October was called in response to it.
It was also perverse for the judge to conclude that Mr Stone had not made an assertion of his statutory right to payment of £200 per day. On the contrary, he had made it plain on numerous occasions that he believed he was entitled to that daily rate.
As for the judge’s reason for dismissal, the EAT held that it contained errors of law. Firstly, the employment judge had not asked himself why the company had decided to withdraw the concession; and secondly, he had introduced a reason for dismissal which neither party had raised in their submissions.
Comment
We all have off days, and this decision illustrates that (contrary to a belief held by some) that judges are human too. Perhaps the more interesting aspect though, is the important procedural safeguard it involves. The employment judge decided that he was going to make a finding which neither side had argued for. Although it is permissible to do so, the mistake he made was not to tell the parties that, or to give them the opportunity to make submissions about it. Luckily, Mr Stone had his trade union’s backing to appeal. Another claimant without the same support could easily have lost out.