Feltham Management Ltd & Ors v. Feltham & Ors, Court of Appeal - United Kingdom Employment Appeal Tribunal, December 21, 2017,  UKEAT 0201_16_2112
|Resolution Date:||December 21, 2017|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Feltham Management Ltd & Ors v. Feltham & Ors|
Appeal No. UKEAT/0201/16/RN
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 7 July 2017
Judgment handed down on 21 December 2017
HIS HONOUR JUDGE DAVID RICHARDSON
(1) FELTHAM MANAGEMENT LIMITED APPELLANTS
(2) MR D FELTHAM
(3) MR M FELTHAM
(1) MRS J FELTHAM
(2) B FELTHAM (MAINTENANCE) LTD
(3) MS H FELTHAM RESPONDENTS
Transcript of Proceedings
JURISDICTIONAL POINTS - Claim in time and effective date of termination
SEX DISCRIMINATION - Direct
The Employment Tribunal did not err in law in its findings concerning the date of termination of the Claimant's employment, nor in its findings concerning the effective date of termination. Kirklees Metropolitan Council v Radecki  IRLR 555 distinguished.
The Employment Tribunal did not err in its findings concerning contribution and Polkey.
The Employment Tribunal's findings of sex discrimination would, however, be remitted for reconsideration. The Employment Tribunal did not sufficiently address the explanation given for the withholding of pay which it found to be direct sex discrimination.
HIS HONOUR JUDGE DAVID RICHARDSON
This appeal is concerned with aspects of a Judgment of the Employment Tribunal sitting in Manchester (Employment Judge Slater, Mrs Linney and Mr Chaudhary) dated 25 February 2016. It arises from a family dispute. His Honour Judge Shanks, when he sent the case through to a Full Hearing, first stayed it in order for mediation to be considered. The stay did not bear fruit; hence this appeal.
At the heart of the case are four siblings: Jane, who is the Claimant, and David, Martin and Stephen, who were Respondents at the ET. They along with other family members worked in a family business founded by their father. The family business operated through companies; one such company, Feltham Management Limited, a Respondent at the ET, is of particular importance because it employed the Claimant. In this Judgment I will refer to it as ``the Company'' and I will refer to David, Martin and Stephen by name. Two other family members are also central to the story: Hazel, who is the adult child of David, also working in the business as a Clerical Assistant; and Mr Eckersall, the Claimant's husband, a self-employed joiner who did work for the business without ever being employed within it.
The appeal raises issues which can conveniently be grouped into four sections: whether the ET correctly rejected a contention that the date of dismissal, or the effective date of dismissal, was about 30 October 2014; whether the ET correctly declined to make a Polkey deduction; whether the ET correctly declined to make a deduction for contributory fault; and whether the ET erred in law in making findings of sex discrimination.
I will deal with these issues in separate sections after I have summarised the background facts and given an overview of the ET's Reasons.
The appeal was argued before me orally on 7 July. Mr Jason Braier appeared for the Company, David and Martin. Ms Rachel Wedderspoon appeared for the Claimant. In one important respect further written submissions were required; I gave directions for them and have received them from both parties. This is my Reserved Judgment.
The Background Facts
When his father retired from the business David took over as Managing Director of the Company. The Claimant was employed by it at least from 2002 onwards. She had a written contract of employment from 2006. She was described as Property Letting Manager and Director; and she was a Director of the Company. Until 15 August 2013 she was regarded as a valuable and effective member of management. She was in effect Office Manager.
It was common ground before the ET that there was a sharp disagreement on 15 August 2013. Mr Eckersall had been sending inappropriate texts and Facebook messages to Hazel. On that day Mr Eckersall emailed her and asked her to call him. She did so. He then told the Claimant that he was leaving her because he had feelings for Hazel. The Claimant accused Hazel of inappropriate conduct with her husband; Hazel did not accept that she had done anything wrong. Other family members became involved. Harsh words were said. David, in particular, said to the Claimant that the situation was her fault because she did not take Mr Eckersall's name on marriage, or respect him as head of the house, and undermined him in front of others, and did not welcome him home; perhaps that was why he wanted Hazel. The Claimant, already upset, was upset yet further and left work. She did not attend again.
The ET did not make findings as to whether Hazel had in fact behaved inappropriately with Mr Eckersall. Hazel had not retained his messages or her replies. She did not vouchsafe in evidence what she had said to Mr Eckersall. But she had always denied wrongdoing and insisted on a full retraction and apology. She took over the Claimant's work with support from David.
Both the Claimant and her husband were unwell for a period. The Company ceased to pay the Claimant at the end of August; but nothing else was done which might indicate termination of employment, and the Claimant remained a Director, retaining benefits such as the company car and credit card. By September she was trying to mend fences. She met Hazel and apologised for shouting; but this was not sufficient for Hazel and the Claimant was not prepared to go further. By 9 September the Claimant was feeling a little better. She met Stephen on 9 September and said that she would return to work on the following Monday. Stephen said she could not return.
The ET made detailed findings as to what transpired over the following months; it is not necessary to repeat them all here. Suffice it to say that there were attempts to find a way forward involving both the vicar of the church which they attended and another brother, Alan. They were unsuccessful. During this time Hazel wrote a letter which the ET described as unpleasant in tone. The ET found that the letter was seen by David and expressed views which he held as well as her. Material to the issues in this appeal is the following passage:
``Jane has not been sacked. She has not been given her P45. She voluntarily failed to return to work in the weeks after the event. She then announced to Stephen that she would be returning [to work] without the matter being resolved. This was and still is impossible. How can she or anyone else expect things to work after the accusations she had made without her even attempting to make amends - and actually meaning it.''
Eventually, on 19 June 2014, the Claimant wrote a measured letter to David, Martin and Stephen. She proposed mediation and suggested the names of mediators. She said:
``I was in a state of emotional turmoil and was not fit to come into work for three weeks [from the argument in August 2013]. Further, on speaking to Stephen three weeks after that fateful day, I explained to him that I was going to come back into work and was told that I couldn't come back until the situation was `sorted out'. The fact that I had been told not to return until the matter had been sorted out should not then mean that I am penalised in terms of my pay. I do not accept the position that I have not been paid and, therefore, I expect to be reimbursed for all of my pay since that day in August 2013 and for my pay to be reinstated moving forward.''
This letter received no reply at all until 30 October. The reply, signed by David, Martin and Stephen, was written after taking legal advice. It contained the following passage:
``(1) You walked out of the business on Thursday 15th August 2013 and did not come back.
(2) The Company took this as your resignation and as such your employment with the Company ended on that date. ...
(3) There is, therefore, no entitlement for you to receive any salary from 15th August 2013 to the present time and you are not entitled to any salary going forward.''
The letter asserted that any personal benefits had been paid since August 2013 only as a matter of goodwill. Dates were given in the future for the transfer of some benefits (car, medical insurance and phone) and for the cancellation of another (credit card).
The Claimant instructed solicitors. She did not accept that she had resigned; they said so in correspondence. The Company now instructed solicitors; they re-iterated the position in a letter dated 15 December 2014 saying that she had been taken off payroll and a P45 had been issued. She took this letter as dismissing her; and commenced ET proceedings.
The Employment Tribunal's Reasons in Overview
The ET, after making findings of fact and stating the law, reached the following principal conclusions favourable to the Claimant.
Firstly, it found that the effective date of termination of the Claimant's employment was 15 December 2014. By the time of the hearing the Company no longer contended that the Claimant had resigned in 2013; it contended that the effective date of termination was 30 October 2014. If that had been the case the unfair dismissal complaint would have been out of time. The Company appeals.
Secondly, it found that the dismissal was unfair because the Company did not establish a potentially fair reason for dismissal. The Company does not appeal against this finding.
Thirdly, it found that there should be no Polkey reduction. The Company appeals.
Fourthly, it found that there should be no reduction for contributory fault. The Company appeals.
Fifthly, it found that the Claimant was prevented from attending work from September 2013 onwards. She was entitled to her wages from the Company from that time onwards pursuant to Part II of the Employment Rights Act 1996 subject to any period when she was unable to work through...
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