England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		The Royal Courts of Justice The Strand London Wednesday 12 December 2001

Wednesday 12 December 2001

1. LORD JUSTICE SEDLEY: This is an application for permission to appeal made by Mrs Martin in person, as she has been all along.
2. Mrs Martin, a married woman, went back into the labour market when her children were old enough for her to do so and obtained a job as a switchboard operator with the Surrey Sussex National Health Service Trust at Crawley Hospital. The job was advertised as requiring experience and initiative and was described as "a very responsible and challenging post". It sought in particular people who were able to work on their own.
3. Mrs Martin took the job but, in due course, became perturbed at the way in which the supervisor, Mrs Cook, was dealing with a fellow employee who, as a result of an incident, had been told that she, the fellow employee, had sole responsibility for initiating emergency procedures as the operator on duty. Mrs Martin became concerned that if this applied to her too (as manifestly it was likely to) it was placing a quite unfair burden upon her and one which she ultimately believed went beyond what could be contractually demanded of her. She raised the issue and, in a series of events around a meeting, which I do not need to go into, was dissatisfied with what she felt was the high-handed way in which Mrs Cook was dealing with her and resigned.
4. An employee who resigns from a job may have been unfairly dismissed if they were driven to resign by the inappropriate or non-contractual conduct of the employer or people in authority in the employing organisation. That was Mrs Martin's case, and she took it to the Employment Tribunal. She feels now that she was disadvantaged by not being represented there, and it is true that there are cases in which it is a real disadvantage to be unrepresented. But here the issues of law were uncontroversial. The question was a question of fact, and I have described what it was.
5. Mrs Martin gave her evidence, and so did Mrs Cook. In addition, Mrs Dolding, the fellow employee whose treatment had sparked Mrs Martin's concern, was present and her statement was before the Tribunal. Since it was not challenged, Mrs Martin did not think it necessary to call Mrs Dolding to give evidence, and she now feels that this harmed her case. I think I can assure her that it did not. The events involving Mrs Dolding, and the underlying rights and wrongs, were not important in Mrs Martin's case. What was important was that there had been the incident with Mrs Dolding and the correspondence ensuing from it, which Mrs Martin had seen and showed to the Employment Tribunal. Whatever the rights and wrongs of it, it was what Mrs Martin felt about it that mattered, because it was that which had sparked Mrs Martin's own enquiry about her position.
6. The Employment Tribunal rightly focussed upon that, but went on to hold that there had been no bullying or inappropriate conduct such as legitimately entitled Mrs Martin to take herself as having been driven from her job, that is to say constructively dismissed. The Employment Appeal Tribunal, presided over by Judge Serota, on a preliminary hearing held that the appeal of which Mrs Martin had given notice was one which was not capable of succeeding. The Employment Appeal Tribunal's own decision is carefully reasoned and runs to a number of pages in detail. It is sufficient for me to say that, having read the papers, and in particular having read the detailed written arguments which Mrs Martin feels happier with than in making oral submissions (although I have been helped by her oral submissions too today) there is simply no point of law which is capable of being appealed in this case.
7. I know Mrs Martin feels that it is unjust to deny her an appeal in a situation where the Employment Tribunal has found the facts against her and she disagrees fundamentally with their appraisal of the facts. In particular, I have no doubt, Mrs Martin disagrees with the Employment Tribunal's view that Mrs Cook was not a bullying person and had not bullied her. But that is exactly what the Employment Tribunal is there to make up its mind about. Tribunals are not infallible: I think they would be the first to recognise that they have to do their best with the evidence before them, and we all know that we can get things wrong. But it is to them, and to them alone, that Parliament has entrusted the job of fact-finding. It is only if a question of law arises from the facts they have found that the Employment Appeal Tribunal has jurisdiction. It seems to me, for the reasons I hope I have now explained to Mrs Martin, that there is no such point of law here. The, as I appreciate, unwelcome and contested findings of the Employment Tribunal are determinative of what happened, and what the Employment Tribunal found to have happened does not amount in law to an unfair constructive dismissal.
8. In those circumstances I would be doing Mrs Martin no favour by giving her permission to appeal. Unlike the tribunals so far, in which costs are not paid by an unsuccessful party, this is a court in which the unsuccessful party ordinarily pays the successful party's costs. I do not think Mrs Martin would thank me if I gave her permission to appeal in a case which she was bound to lose, with a five-figure costs bill to pay as the price. That is why we have a filter procedure like this and why it is appropriate that at this stage I should say there is no ground for giving permission to appeal.
ORDER: Application refused