England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mr Justice Bean, Mrs R. Chapman, Mr C. Edwards
UKEAT/0119/09/JOJ

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/07/2010

Lord Justice Rimer :

Introduction

1. This is a renewed application for permission to appeal, Mummery LJ having refused permission on the papers on 5 March 2010. The applicant, Dr Peter John-Charles, has appeared in person. His proposed appeal is against an order of the Employment Appeal Tribunal dated 29 July 2009 (Bean J and Members). That order, made after a preliminary hearing at which only the applicant was present (again representing himself), dismissed his appeal against the dismissal of his claims by the Leeds Employment Tribunal (Employment Judge Burton and Members) by a judgment sent with reasons to the parties on 20 October 2008. The hearing before the employment tribunal occupied several days in April and September 2008. The applicant also represented himself at that hearing. The respondents were represented by Dale Martin of counsel.
2. Unusually, I reserved my judgment on the permission application because of insufficiency of time in advance of and during the 30-minute hearing both to absorb the details of the long history of this case and to decide whether any of the applicant's extensive criticisms of the decisions below has arguable substance. The applicant's time for appealing to this court against the appeal tribunal's order was 21 days from 30 July 2009 (the seal date of the order), but like many litigants in person he chose first, on 13 August, to ask the appeal tribunal to review its decision, which on 19 October it refused to do. (He had earlier, with like success, asked the employment tribunal to review its decision). His appellant's notice to this court was, he asserts, filed in time but he says the court then advised him to await the outcome of his review application. Following its adverse result, he says he lodged his appellant's notice on 6 November and was apparently advised to amend it if he wished to appeal against the order of 29 July. The only appellant's notices I have seen do challenge that order, so what his original notice purported to relate to I know not. The notice appears to have been filed on 21 December and so was apparently late.
3. My experience is that it is the exception rather than the rule for litigants in person to file documents in time although they do not enjoy any special indulgence not shared by those who are professionally represented. But in the somewhat confused circumstances relating to the filing that I have explained, I will extend the applicant's time for doing so, although he should not regard that as meaning that I will also give permission to appeal, to which question I now turn. In order to answer that question, it is, I consider, necessary first to summarise the findings of fact and conclusions made by the employment tribunal; and then to summarise the decision of the appeal tribunal. I will then consider the applicant's grounds of appeal.

The decision of the employment tribunal

4. The respondents to the applicant's claim were John Weir and the Governing Body of Thornton Grammar School, of which school Mr Weir is the Headteacher. The applicant, who is of Afro-Caribbean ethnic origin, is a former employee of the school. His claims were for race discrimination (45 allegations) and unfair dismissal. He was recruited by the school on 1 September 2000 as an ICT officer. He had a PhD and was regarded by his interviewers as over-qualified for the post, that of a technician.
5. Difficulties promptly developed and continued between the applicant and Mrs Kingston, the Head of IT, who found he would not readily accept her management of him. Their relationship deteriorated. The tribunal explained the problems that arose and their findings reflect that the applicant was an employee who regarded himself as entitled to decide for himself how to discharge his duties and whether to comply with Mrs Kingston's requests of him. The tribunal's findings between paragraphs 12 and 26 show what a difficult employee he was.
6. On 19 November 2002 he asked for a salary review, to which the response from Mr McGinnis (the finance manager and his ultimate line manager) was that he had always made it clear that he would review the applicant's position once he demonstrated a significant and sustained improvement in his conduct and attitude but Mr McGinnis had not yet noted any. In the same month the applicant refused Mr Weir's request to complete a particular task that Ms Oxley (another technician in the IT department at a level similar to that of the applicant) had been unable to complete by reason of her sickness, one resulting in a three-month absence. Mr Weir, described by the tribunal as 'ever patient', had by now had enough and the possibility of the applicant's dismissal was discussed.
7. Astonishingly, observed the tribunal, instead of dismissing him, the decision was made to give him increased responsibility and a significant pay rise, with the focus of his work to be the Administration Network, a computer system in relative infancy that was used in the running of the school (as compared with the Curriculum Network, which was used by the pupils). The thinking was that this might make him more co-operative. He was delighted and was asked to, and did, prepare a new job description for himself. He continued during Ms Oxley's absence to support the Curriculum Network, which was primarily her responsibility. When she returned in April 2003, she received a pay rise commensurate with that responsibility, at a level that he had formerly enjoyed.
8. The school also decided to employ another IT technician, Mr Bullock. He was to support the Curriculum Network and was told at his interview, in the applicant's presence, that Ms Oxley would be his line manager. The applicant, who was senior to Ms Oxley, believed that he should be the line manager. That was consistent with the duties he had ascribed to himself in the job description, and he regarded the matter as important.
9. On 27 April 2003 Ms Oxley complained about the applicant to Mr McGinnis. It related to his interference with her supervision of work done by F.H. Browns, a firm retained to do some work over the Easter holiday in relation to the Curriculum Network. Ms Oxley expressed her 'deep sense of unease at working with someone who feels they can bully and intimidate people enough, so that they get what they want'; and also her concern about working with him during the holidays when there were few people in the school. On 30 April Browns also complained about his behaviour. Mrs Kingston wrote a firm letter to him, pointing out that he was not in charge of the Curriculum Network and instructing him to keep off Ms Oxley's turf.
10. On 8 July there was an incident following the applicant's instruction to everyone to log off the Administration Network so that he could do some maintenance work. Mr Barker, a senior teacher, was doing important timetable work on it and did not log off. So the applicant logged him off remotely and thereby incensed him (Mr Barker believed, mistakenly, that all his work would be lost). Mr Barker complained to Mr Weir, who asked Mrs Kingston to instruct the applicant never to do that again to any staff member. The applicant was dismissive of her, asked why Mr Weir could not have spoken to him and said he had not got time to comply with his instructions. He interrupted the discussion to take a telephone call, which so angered Mrs Kingston that she disconnected the call and told the applicant she was talking to him. She claimed that she was then met with a torrent of obscene abuse, which he denied although he at least admitted that the temperature rose. The tribunal accepted Mrs Kingston's account.
11. Mrs Kingston was shocked and frightened and feared for her physical safety. She reported the matter to Mr Weir and told him that she was not going to put up with any more such behaviour. At her request, Mr Weir agreed that the applicant would be taken off the Curriculum Network. Mr Weir and Mr McGinnis relayed that to the applicant, who refused to agree. He also refused to move offices so as to be separate from Mrs Kingston. She had expected him to be suspended. When he was not, she told Mr Weir she was not prepared to come into the school during the holidays.
12. Mr Weir appointed Mr Truelove, the Assistant Headteacher, to investigate the complaints against the applicant and informed the applicant that Mr Truelove would be examining '(i) Failure to carry out reasonable management instructions; and (ii) That your aggressive and intimidating behaviour towards other members of staff has caused considerable distress'. The investigation was, however, put on hold over the summer holidays and on 25 September the applicant made a written complaint to Mr Weir against Mrs Kingston 'for assaulting me by slamming down my hand on the phone and for discriminating against me and victimising me over the past couple of years.' He supported his complaint by six allegations relating to alleged interference with his use of the computer system. In paragraphs 45 to 49 the tribunal explained that all six had an apparently innocent explanation.
13. On 27 September Mrs Kingston wrote to Mr Weir emphasising that if the applicant was to remain in her department, she expected to remain his line manager and also expected him to comply with departmental and school procedures. She suggested that if either Mr Weir or the applicant was not happy with that, the applicant should be moved to another department.
14. More trouble followed. The applicant had reversed work that Ms Oxley had done on the Curriculum Network, which Mrs Kingston asked him to reinstate. He sought to justify his intervention and refused to comply with an instruction to clear a space in his office for the installation of an additional desk. That was the last straw for Mrs Kingston who decided to write to Mr Wilkins, Chairman of the Governors, complaining of the applicant's bullying and harassing and the school's failure in their duty of care towards her to deal properly with his behaviour. Her first draft was dated 8 October and she showed it to Mr Weir, who assured her that her concerns about the applicant would be dealt with and he persuaded her to withdraw her complaint against the senior management, including himself. The letter of complaint that Mrs Kingston then sent to Mr Wilkins on 22 October did not therefore include this head of complaint, and Mr Wilkins passed it to Mr Weir for him to deal with. On 6 November Mrs Kingston wrote again to Mr Wilkins raising further concerns, which he also passed on to Mr Weir. On 19 November she drafted another letter to Mr Wilkins complaining of a lack of progress, but did not send it because on 20 November she received an assurance from Mr Weir that matters were now being investigated. In the meantime, Mr Truelove's investigation had not progressed further and was regarded as superseded by the subsequent written grievances from both the applicant and Mrs Kingston.
15. The school Governors decided to attempt a mediated settlement between Mrs Kingston and the applicant, a decision that the tribunal described as beggaring belief: what needed to be done was to ensure that the applicant recognised and respected Mrs Kingston's management status. The mediation anyway went nowhere. Meanwhile, the applicant/Kingston relationship got worse. She feared there were hidden drives on his computer but he refused her demands for access to it. That led to an instruction by Mr McGinnis to Mr Bullock to re-image the computer.
16. The mediation proposal having failed, the Governors appointed Miss Mills, an independent HR professional, to investigate the cross-grievances, without however clearly defining the scope of her investigation, although Miss Mills had seen the cross-grievances. Although the applicant's grievance referred to discrimination, she at no time looked specifically at that complaint, nor did her subsequent report refer to it. She interviewed the applicant on 26 November. His note prepared for that meeting made no specific allegations of race discrimination, which the tribunal suggested was probably why Miss Mills did not take that particular matter further. Her investigation took until February 2004 to complete.
17. Ms Oxley had in the meantime gone off on long term sickness, with Mrs Smith standing in for her, commencing on 12 January 2004. Mrs Kingston was also off sick at about that time. She sent an email to Mr Bullock, with an attachment which she asked him to print off and give to Mrs Smith. The latter warned Mrs Smith of the tensions in the department, pointing out that the applicant only had a supporting role on the Curriculum Network and was not responsible for organising or directing work to be done by Mrs Smith or Mr Bullock. She advised that if there was any interference in her work by the applicant, Mrs Smith should let her know and should also see Mr Weir. Mrs Smith read the note and put it in her handbag, later returning to her office to find the applicant reading it. The tribunal rejected his denial that he had removed it from Mrs Smith's handbag and his different explanation as to how he came by it. They found he had taken it.
18. The applicant's reading of that document led to his letter to Mr McGinnis and Mr Weir on 9 February asking for clarification of the line management responsibilities. Mr Weir passed it to Mrs Kingston, asking her to produce a structure of the IT department, as a result of which on 13 February she prepared a memorandum that she passed to the applicant. It made it clear that Mrs Kingston was Mrs Smith's line manager, who was Mr Bullock's line manager. That provoked a response from the applicant that was distributed among the school's management. It complained that, despite the excellence of his work, Mrs Kingston had for two years victimised and discriminated against him and constantly attempted to have him removed from the Curriculum Network. He accused her of lying and fabrication. He complained of Mrs Smith's promotion - whose skills on the systems and software he described as 'grossly deficient' - to take his position on the Curriculum Network.
19. On 16 February, at a meeting with Mrs Smith and Mr Bullock in the IT office, the applicant repeatedly demanded that Mrs Smith should recognise that he should line manage Mr Bullock. His conduct at the meeting was regarded by Mrs Smith and by Mr Bullock as of a threatening nature (although no particular threat was identified) and the tribunal accepted that it was. Mrs Smith reported the incident to Mr Weir on 23 February, recording her 'outright fear' of the applicant. She was the third member of the IT department to have expressed such sentiments about him.
20. Mr Weir decided that disciplinary action was now necessary. On 2 March he suspended the applicant on full pay, instructing him not to visit the school without prior permission or have any contact with Governors, staff, parents or pupils or to access any of the school computer networks. The tribunal remarked that the single incident provoking the suspension could and should have been dealt with swiftly, saying that most private employers would deal with it in a week: it took the school three years. In the first instance, Mr Weir asked Miss Mills to investigate the matter.
21. The applicant promptly disregarded the contact ban. On 4 March he distributed an email to management setting out his perception of the relevant history, including that his line management responsibilities had been removed from him, which he saw as tantamount to demotion. On 6 March he distributed a further email to several senior managers under the heading 'Racial Discrimination', giving a yet longer history. On 7 March he circulated another email, evincing his wish to appeal against his suspension. On 8 March Mr Weir reminded him of the terms of his suspension and threatened him with further disciplinary action if he continued to breach them. The applicant disregarded that too and distributed a further email on 9 March. On 10 March he emailed Mr Weir to say that he regarded the process of an investigation by Miss Mills as a 'kangaroo court' in which he had no confidence and for which he would attend no meetings. Mr Weir replied by asking him to attend a meeting on 17 March, to which he responded in yet more intemperate terms, making allegations of racism and refusing to attend the meeting. Miss Mills interviewed Mrs Smith, Mr Bullock, Mrs Kingston and Mr Truelove.
22. On 15 March Mr Weir wrote again to the applicant, reiterated the terms of his suspension and again instructing him to attend the meeting with Miss Mills on 17 March, warning him that if he did not that would be an act of misconduct. On 19 March Mr Weir wrote yet again, instructed the applicant to attend a meeting with Miss Mills on 26 March and warned him that if he did not she would have to conclude her investigations and report without the benefit of hearing from him. The applicant responded by an email of 24 March that he again distributed to others.
23. On 22 March Miss Mills attended a meeting with the Board of Governors in order to report on her first investigation. Her view was that no action should be taken in relation to past events. The majority of such events had been brought to management's attention and there had been meetings with the applicant but no record kept of them. He would be able to claim that the complaints had been dealt with at the time. She focused instead on the future.
24. The applicant failed to attend the interview on 26 March although on 6 April he emailed Mr Truelove (his authorised point of contact) to say that he was now be willing to be interviewed.
25. On 31 May Mr Weir wrote to him informing him that no formal disciplinary action would be taken against him in relation to the matters the subject of Miss Mills's first investigation and explaining that expectations as to his future behaviour would be laid down when the suspension was at an end. The applicant responded by saying he had not been told of the outcome of his grievance against Mrs Kingston.
26. Miss Mills interviewed him on 6 June. His response to Mrs Smith's concerns was 'So what, it's a sick joke'.
27. On 5 July Mr Weir wrote to the applicant informing him that the school had decided to take disciplinary action against him. The three allegations concerned (i) the incident on 16 February 2004, relating to his behaviour towards Mrs Smith, (ii) his breaches of the suspension terms by his email communications to the staff, and (iii) his refusal to attend investigatory meetings with Miss Mills. On 7 and 8 July the applicant distributed further emails, in further such breach, responding to the charges and referring to other grievances he held and wished to pursue.
28. On 9 July Mr Weir informed the applicant that no formal disciplinary action would be taken against him in relation to Mrs Kingston's complaint but that, for the time being and 'for reasons of confidentiality', he could not inform him of the outcome of his complaint against Mrs Kingston.
29. The disciplinary hearing had been fixed for 15 July. On that day the applicant emailed the school saying that two years 'of being shamed, shunned, humiliated and overlooked by Mrs Kingston' had made him ill again. His mistreatment had caused him to suffer from gastric-reflux, which that morning was particularly bad and so he was not able to attend the disciplinary meeting. The hearing was adjourned and the Governors regarded the applicant's email as yet a further grievance that required yet another investigation. Mrs Mitchell of Mitchell Turnbull Associates was appointed to carry it out. She wrote several times to the applicant to meet her, which he declined. The tribunal expressed their understanding of his surprise at the introduction of another investigation, which they said then went no further.
30. On 3 February 2005 – still suspended – the applicant emailed Mr Truelove to ascertain the present position. On 15 February he emailed him again, making an unparticularised grievance of racial discrimination by Mrs Kingston and Mr Weir. On 6 April Miss Mills met the applicant and gave him some feedback as to the outcome of her investigation, following which he complained that he had been suspended for 13 months for 'these pathetic trivial issues' and asserted that, if the school had a case, it should get on with it. On 14 April Mr Weir wrote to the applicant saying that, the outcome of Miss Mills's first investigation was that she had found 'no case to answer in terms of any formal disciplinary action required, both in relation to you and Karen Kingston'. The tribunal found that to be an inaccurate representation of Miss Mills's findings but also that the applicant took great comfort from these words.
31. On 16 April he lodged an appeal against those findings, which served to defer the disciplinary proceedings yet further. On 4 July there was a grievance hearing in relation to the applicant's latest discrimination allegation. The tribunal did not explain what decision was reached but said that on 14 July the Governors decided not to uphold it.
32. On 10 October the applicant was summoned to an adjourned disciplinary hearing on 20 October (adjourned, I understand, from 15 July 2004). At his request it was postponed. His appeal against the various grievance decisions, and also his grievance appeal hearing, were together heard on 12 December. On 20 December he was told that his appeal was unsuccessful.
33. On 27 December he lodged yet a further grievance, this time against the conduct of the grievance hearing. I understand this to relate to the conduct of the hearing on 12 December, the complaint being that the school had failed to consider some documents that he presented late. The Governors appointed Graham Alan to investigate that grievance. He reported on 8 March 2006 that there was no substance to the grievance.
34. On 22 November 2006 Mr Weir wrote to the applicant informing him that the adjourned disciplinary hearing (adjourned from 20 October 2005) would be on 6 December. For reasons that had nothing to do with the applicant, it was (no surprise) adjourned yet again, to 20 March 2007, three years after the suspension. Remarkably, the hearing did take place on that day. The outcome was that the Governors found all three charges (see paragraph [27] above) against the applicant proved (there could be no issue over the second and third charges).
35. The hearing was chaired by Mr Bishop, who wanted to dismiss the applicant. The legal advice was, however, that this might be viewed as an excessive sanction and it was instead decided to administer a final written warning. On 29 March the applicant was informed of their findings, told that his suspension was lifted forthwith and that he should return to work on a date to be arranged with the school. The news of his return alarmed Mrs Kingston, Mrs Smith (now a permanent employee) and, the tribunal inferred, no doubt Ms Oxley as well.
36. On 3 April Mr Weir asked the applicant to attend a 'return to work' meeting on 18 April. On 13 April the applicant lodged an appeal against the final warning. The meeting took place and arrangements were made for the return to work although it was apparent that the applicant was not going to accept the school's stance on where he would be working, what his roles and responsibilities would be and in relation to line management. The school decided to abrogate its management responsibilities by leaving it to ACAS to resolve such issues. A meeting with ACAS fixed for 20 April did not, however, take place.
37. Encouraged once again by such supine management, the applicant again went on the attack. By an email of 23 April to the Clerk of the Governing Body he set out his own requirements for his return to work. He demanded formal reinstatement and a rescission of 'any written warning'. This was not just because the allegations had occurred over three years before, he considered himself 'wholly innocent of anything worthy of a three year suspension.' He also '[continued] to contend that I have yet to be sent a formal final written warning.' He wanted his job description recognised and honoured and wanted to be given the full return of the roles and responsibilities referred to in it – namely that he was the head technician on both the Administration and Curriculum Networks, with supervisory responsibilities over the other technicians. On 24 April he wrote thus to the HR Adviser at Education Bradford:

'I have been attending meetings for six years! That is six years of harassment, victimisation, discrimination, shunning and humiliation. As far as I am concerned Mr Weir is a racist, his School is institutionally racist and so is Education Bradford. I am the one who is requiring that the School state their position prior to the attending of any meeting with ACAS, because I have no intention of wasting any more years.'

38. The school concluded that he no longer wanted a meeting with ACAS. On 20 May Mr Weir wrote to him requiring him to attend work on 6 June. His response to the Governors on 25 May was that he was not going to return to work until his appeal against the final written warning had been dealt with. On 28 May he emailed Mr Weir saying that he had made a serious claim of race discrimination and breach of contract against him and it was not appropriate for him to return to work without its first being clarified how he was going to be protected from 'further abuse, victimisation, harassment, shaming, racial discrimination and Breach of Contract from Mr Weir and others.' In the first fortnight of June the applicant ignored three successive requests to attend return to work meetings. On 6 July Mr McGinnis wrote to him again advising him of a further meeting arranged for 9 July, and warning him that a failure to attend it would lead to further disciplinary action and a cessation of his pay. The applicant's response was that he was not going to return to work pending the outcome of his appeal against the decision of the 'kangaroo court'. He further said he would not return to work until he had been provided with a written statement of the particulars of his employment, which, said the tribunal, had been provided to him at the commencement of his employment. Mr McGinnis's response on 18 July was to inform the applicant that his pay would cease immediately and that he intended to consider disciplinary action in relation to the applicant's refusal to carry out a reasonable management instruction.
39. The applicant responded with unqualified aggression on 20 July, followed by a further like response on 22 July. He refused to return to the school and said that he considered the cessation of his pay 'as notice that you have terminated my employment ….' He indicated his intention to commence the tribunal proceedings, and did so on 25 July. At a case management discussion on 18 October he questioned whether his employment was at an end. On 14 November the Governors wrote that they believed he had resigned but, if he had not, their view was that he would anyway have been dismissed for repeated misconduct following his final written warning.
40. The tribunal directed themselves as to the law relating to race discrimination claims and their proof, went through each of the applicant's 45 separate allegations and rejected each on the facts. As for his unfair dismissal claim, the tribunal found that on 6 July 2007 the school still regarded the employment contract as alive because they were asking him to come back to work and were threatening him with the possibility of disciplinary action. The later cessation of his pay simply reflected that he was refusing to work, thus entitling the school to stop paying him. The tribunal held that that did not indicate an intention to terminate his employment: on the contrary, in his letter of 18 July 2007 Mr McGinnis told him that disciplinary action would be pursued. The tribunal found that, by his email of 20 July 2007, the applicant performed 'a clear and unequivocal act of resignation'.
41. The only remaining question was whether he was resigning in response to a repudiation of his contract by the school. The tribunal's view was that the respondents did not escape criticism and that, if no other act could have amounted to a repudiation, the three-year suspension of the applicant could have done. Their view was that, had the applicant resigned during that suspension on the basis that the respondents had failed to deal within a reasonable timescale with the disciplinary issues, he would 'almost certainly have succeeded' – which I understand to mean that he would be held as having resigned by way of an acceptance of the school's repudiation of his contract. But he did not. He awaited the outcome of the disciplinary process and the lifting of the suspension and he attended a 'return to work' interview when he took a positive attitude about his phased return to work. By such conduct he waived any prior repudiation of his contract and affirmed it. Nothing that the respondents had subsequently done could have amounted to a repudiation of his contract and so the claim for unfair constructive dismissal failed.

The decision of the appeal tribunal

42. The appeal tribunal's view was that tribunal had been right to regard the applicant's communications of 20 and 22 July 2007 as evincing his resignation. As to whether it was in response to a repudiation by the employers by stopping his pay on 9 July or otherwise, the appeal tribunal agreed with the tribunal that, in the face of the applicant's intransigence about returning to work, the employers were properly entitled to stop his pay. The appeal tribunal also agreed with the tribunal's other reasons as to why the applicant's resignation was not in response to a repudiation.
43. The appeal tribunal dealt with the applicant's assertion that his dismissal was automatically unfair because he was dismissed by asserting a statutory right, namely to be provided with a job description. They pointed out that there is no statutory right to be provided with a 'job description'. The particulars of terms and conditions of employment required to be provided under Part 1 of the Employment Rights Act 1996 are limited, and include a right to be told in writing the title of the job which he is employed to do or a brief description of the work for which he is employed. The two are alternatives. Further, if there was any failure to provide the applicant with any particulars or document to which he was contractually entitled in 2005 (when he claimed he was entitled to a new job description), it was too late to complain about that in July 2007 when he launched his claim. In any event by 2007 it was plain that the problem about his return to work was not about the failure to provide a job description, it was about his refusal to return to work until and unless his appeal against his final written warning had been heard.
44. The next matter that the applicant argued before the appeal tribunal related to a complaint that the respondents had not included in the bundle for the employment tribunal a document headed '08/07/03 PMJC' which the applicant said was written by Mrs Kingston and which he put to her in cross-examination in order to demonstrate the claimed inconsistencies between this document and her later 2003 statement that also formed the basis of her tribunal evidence. The applicant's further complaint was that the tribunal had not admitted this document in evidence. The appeal tribunal said that it was somewhat puzzled by this, but it also went on to explain that Mrs Kingston's credibility was in issue and that the applicant had used this document to challenge it: and his point was that, whereas this document made no reference to any swearing by the applicant, the tribunal had accepted Mrs Kingston's evidence that he had sworn. On the other hand, the document did refer to intimidatory, aggressive and belligerent behaviour, and the appeal tribunal said that such discrepancies as those to which the applicant pointed were matters for the tribunal's evaluation of Mrs Kingston as a witness; and there was ample basis for the tribunal to prefer her version of events.
45. The appeal tribunal referred next to the fact that the applicant's most recent notice of appeal had raised a large number of points, including that the tribunal's finding that there was no racial discrimination was perverse. They said that arguments to the effect that the findings were perverse did not amount to arguments of legal error on which an appeal lay. The applicant's further complaints were also as to the tribunal's findings of fact. The appeal tribunal also rejected an apparent complaint that a hearing of 12 days duration before the employment tribunal was insufficient to cover what it regarded as an essentially straightforward case.

The applicant's proposed appeal to this court

46. For the oral hearing before me, the applicant produced a long written complaint as to the outcome of the hearings below. It opens by recording his acceptance that he resigned from his employment but asserting that he resigned in response to repudiatory conduct by the employers: in short, that he was constructively dismissed. Before considering the grounds further, I regard it as important to make clear that the decision upon which this court must primarily focus is that of the employment tribunal. The only basis of an appeal to the appeal tribunal was that the employment tribunal had made an error of law. Before this court the same question arises.
47. In support of his application, the applicant has raised again the point that did not impress the appeal tribunal, namely that he was entitled to a new job description in 2005 (during the currency of his suspension) with which the employers failed to provide him. The point finds its origin in a Memorandum dated 6 June 2005 that Mr McGinnis addressed to 'All Staff', although he did not apparently send it to the applicant, who was at that time suspended. It was headed 'Assimilation of Support Staff' and referred to the setting up of a working party for the purpose of assimilating non-teaching staff on to new grades based on National Job Profiles produced by the National Joint Council for Local Government Services. It recorded that new job descriptions and personnel specifications for all staff (subject to certain exceptions) had been produced following consultation between Education Bradford, the Council, headteachers and support staff unions. The implementation date for the new structure was 1 September 2005.
48. It appears that the applicant knew nothing about this at the time but his complaint is that he says that his employers were required, within one month of 1 September 2005, to have given him a written statement of the particulars of the change of his employment particulars, and that in failing to do so they breached both section 4 of the Employment Rights Act 1996 and his employment contract.
49. I have summarised how the appeal tribunal dealt with the point about the applicant's claim to have been entitled to a new job description in 2005. He disagrees with their analysis. But even if he ever had an arguable point in that respect, I do not understand how he can have any real prospect of deploying it to advantage in the Court of Appeal. That is because the major difficulty in his path – to which the appeal tribunal made no reference - is that he raised no section 4 or other complaint in relation to the non-communication of the 2005 re-grading before he resigned; he included no such complaint in his ET1 for the purposes of the tribunal hearing; he made no reference to it in his witness statement in support of his claims; he did not include it in the over 40 issues that he identified at the beginning of the hearing for determination by the tribunal; and, at any rate according to the respondents' record of the proceedings, he did not raise the point in his cross-examination of their witnesses (I take all this from the written submissions provided by Mr Martin, counsel for the respondents, to the appeal tribunal for the purpose of the preliminary hearing). My summary of the employment tribunal's decision included no reference to this point: and that is because it nowhere featured in the tribunal's findings or conclusions. That is because (subject to what I am about to explain) no point based on the 6 June 2005 Memorandum formed any part of the applicant's case before the employment tribunal.
50. It appears, however, from the applicant's application dated 24 October 2008 asking the tribunal to review its decision (which the tribunal refused to do) that, at any rate by the time of the resumed hearing of the tribunal proceedings in September 2008, the applicant did have a copy of the June 2005 memorandum. In that application he complained that, although he had given it to the tribunal at the start of the resumed hearing, he had not been permitted to make reference to it. He wanted to deploy it in support of his case that he had resigned because of the school's omission following such Memorandum to provide his new job description and personnel specification.
51. In these circumstances it appears to me that there is now no scope for the applicant to endeavour to turn any point based on the June 2005 memorandum to advantage. He did not resign because of any alleged omission in this respect on the school's behalf because he was unaware of it. It may be that it would have been arguable by him, had he been permitted to argue the point before the employment tribunal, that his late discovery of this alleged omission could have been invoked in additional support of his claim to have resigned in response to alleged breaches by the school. But what is apparent is that (a) that was no part of his original case before the tribunal, and (b) insofar as he sought to make it part of his case at the resumed September 2008 hearing, the tribunal refused to allow him to do so. There is nothing before me explaining more fully the circumstances in which that refusal came about. But the only inference that can be drawn is that the tribunal was thereby making a case management decision that it was not at that stage going to allow any enlargement of the – already multitudinous – issues between the parties by permitting the applicant to make a new case.
52. The applicant of course disagrees with the tribunal's decision, and asserts that it was wrong. But I regard that as an impossible submission. It was a decision that the tribunal were properly entitled to make and their making of it represented no error of law that can be the subject of an appellate challenge. That is the short answer to the June 2005 memorandum point, and the point is made no better by the applicant's assertion that the school's failure to disclose it earlier was deceitful. That point, if it has any arguable substance, could have been put to the tribunal in aid of his application to raise the new case, and no doubt was. But the application failed. The Court of Appeal is not going to second-guess the procedural correctness of the tribunal's decision to refuse to allow the new point to be raised and hold that the decision was wrong. The decision was one that fell squarely within the tribunal's discretion in its case management of the proceedings.
53. The applicant then makes the further point that he had received a revised job description in 2002 (one he wrote himself) yet points out that when on 30 April 2007 the Clerk to the Governors wrote to him about his return to work he said that 'Your role as Network Administrator will continue in line with the provisions of your Job description of 2001.' The applicant asserts that that constituted a demotion for no reason, since (so he asserts) it amounted to a 3-scale salary decrease from the job description of 2002 and an unknown potential decrease from the job description to which he was entitled with effect from 1 September 2005.
54. For reasons given, insofar as the applicant seeks to rely on the alleged 'unknown potential decrease', that was not a point he was allowed to take before the tribunal and he cannot take it now. So far as the rest of his complaint is concerned, I am not persuaded that there is any arguable substance to it. First, I am not by any means convinced that the Clerk's letter conveyed any intention to inflict a salary decrease on the applicant. As I understand it (and I may perhaps be wrong), the applicant had a job description in 2000 when he originally joined the school and a revised one in 2002 that he drew up himself. I suspect that the Clerk's reference to '2001' was a mistake. But there is, on what I have seen, anyway no basis for a suggestion that the school had it in mind to reduce his salary.
55. It may be that is how the applicant now chooses to read the Clerk's letter. There is nothing to show he so read it at the time. At the time he was conducting himself as an employee in what can only be regarded as an insubordinate manner. The tribunal found that, on 18 April 2007, he had agreed that he would return to work. The basis on which he was to do so was to be left to ACAS to resolve, but that did not happen. On 23 April he dictated his own requirements for such a return. On 30 April the Clerk wrote his letter, saying that he inferred from the tone of the applicant's recent email that he longer wished to consider a meeting with ACAS; if so, the Clerk proposed a phased return to work commencing on 8 May. There followed the applicant's intemperate email of 3 May, in which he did not suggest that a salary reduction was to be imposed on him. He did not return to work. His email of 25 May indicated that he did not consider that he could return to the school so long as his appeal against the disciplinary hearing of 20 March was still pending. On 28 May he responded to Mr Weir's request that he should make a phased return to work commencing on 6 June by asking for clarification on six items, including his 'role and responsibilities (please see my attached Job Description)'. He asserted that it was not appropriate for him to return to work pending the outcome of Mrs Smith's grievance. The school's response was that all six points would be explained to him by Mr McGinnis on his return to work on 6 June; and it repeated its requirement that he should return to work on that day. He failed to do so, and on 7 June Mr McGinnis wrote to him expressing his disappointment at that and explaining that 'the purpose of the meeting on 6^th June 2007 was to discuss with you, all matters relating to your return to work.' Mr McGinnis made another request that he attend a meeting with him on 11 June. The applicant's response on 8 June was that 'the matters relating to my return to work require the school to clarify the following', and he then set out the same six matters as before. He did not attend the meeting on 11 June. He was refusing to comply with proper requirements to return to work and was refusing the opportunity to discuss with the school the very matters about which he was concerned. If he had regarded the Clerk's letter of 30 April as imposing a salary decrease on him (which he at no time asserted), he had every opportunity to discuss it with the school. He refused to take that opportunity up.
56. In these circumstances, I regard the applicant's apparent assertion that the Clerk's letter of 30 April 2007 amounted to a repudiatory breach of contract as unfounded. It may be that it contained a mistaken reference to 2001 rather than 2002. It does not, however, bear the interpretation that the applicant now puts on it. Moreover, he had, but refused to take up, every opportunity to discuss with the school 'his role and responsibilities' upon return.
57. If and insofar as it is the applicant's wish to argue in the Court of Appeal that the Clerk's letter of 30 April constituted a repudiation of his employment contract that he belatedly accepted by his resignation on 22 July 2007, I observe first that it is far from clear that that is how he put his case to the employment tribunal. Their reasoning in paragraph 201, where they deal with the constructive dismissal case, makes no reference to it. The tribunal did, however make clear findings of fact that, following the lifting of the suspension, the school committed no breaches of the contractual obligations it owed to the applicant sufficient to justify his claim that he resigned in response to repudiatory conduct by the school. And that, in my judgment, is the end of this point. The tribunal has decided the facts against the applicant and he cannot, as he now seeks to do, re-open them and seek to argue them afresh in the Court of Appeal.
58. The applicant wishes next to argue that his long suspension amounted to punishment, causing him 'shame, stigma, humiliation and career stagnation'. It was, he says, a breach of his contract of employment. The tribunal was in principle sympathetic to his criticism of the length of the suspension and indicated that the school's conduct in relation to it could have been regarded as repudiatory of the contract of employment. But they explained that the applicant did not, as he might have done, accept any such repudiation and resign from his employment; they found as a fact, in paragraph 201, that following the lifting of the suspension he waived any such prior breach and affirmed the employment contract. At that point it became too late for the applicant to attempt to re-wind the clock and treat the suspension as a justification for his resignation. That was a conclusion of fact to which the tribunal was fully entitled to come and its making involved no error of law. There is nothing in this point either.
59. The applicant wishes next to argue, as I follow it, that the school's failure following the lifting of the suspension to conduct a prompt disciplinary hearing into his appeal against the decision to give him a final written warning amounted to further conduct justifying his resignation. There is no mention of this point in the tribunal's reasons, although it is referred to briefly by the appeal tribunal in paragraph 33. The appeal tribunal there made the point that this was merely part of the problem about the applicant's return to work, a problem which 'as it is quite clear from the findings of fact by the Tribunal, was [the applicant's] refusal to accept any instructions from the employers until and unless, at the very least, an appeal against the final written warning had been heard, a process which would no doubt have been an extremely lengthy one and possibly until other terms laid down by him had been agreed as well.'
60. The appeal tribunal's summary of the position is a fair one. During the run up to his resignation the applicant was, unjustifiably, seeking to dictate the terms of his return to work and refusing, equally unjustifiably, accept the instructions from his employers as to such return. If and so far as one such term was the holding of the appeal prior to such return, he was not entitled to insist on that, and I do not see that the fact that, at the return to work meeting on 18 April 2007, he said in response to Mr Weir that he would like the appeal to take place before his reintegration back to work was something that committed the school to going along with that. Accepting for present purposes that he was continuing to insist on that, his problem is that the employment tribunal found as a fact that the employers committed no repudiatory conduct justifying his resignation in July 2007. That was a finding the tribunal was entitled to make and it cannot be said to have been vitiated by an error of law.
61. Next the applicant argues that he was dismissed for asserting statutory rights (his section 4 rights and his right of appeal) so that his dismissal was automatically unfair. There is, I consider, nothing in this. It is in principle difficult to make such an assertion good in a case in which there has been no actual dismissal, but only an alleged constructive dismissal. It is particularly difficult to make it good on the facts of this case in which the employers were not refusing to hold any appeal and were expressing themselves ready and willing to discuss with the applicant all the matters he specifically raised with them as requiring clarification before his return to work. The tribunal's findings of fact are quite inconsistent with the making good of this case, and the Court of Appeal is not going to re-open the questions of fact and make different findings.
62. The next point that the applicant raises is a challenge to the tribunal's finding that by his conduct following the lifting of the suspension the applicant had waived any right to treat the suspension as repudiatory. His elaboration of this point in his written submission appears to me to add up to nought, and I propose to say no more about the point than that he is faced with a rational finding of fact by the tribunal which the Court of Appeal will not re-open.
63. Finally, the applicant raises an argument, spread over nearly two single-spaced pages, to the effect that both the tribunal and the appeal tribunal erred in questioning his motive in requesting an appeal of the decision to give him a final warning. I cannot see that either tribunal questioned his motive in this respect, but this protracted submission anyway adds nothing of substance to the applicant's application.
64. To the extent that the applicant also challenges the appeal tribunal's decision on the other matters to which it referred, but which the applicant did not re-address in his most recent written submission, I say simply that he has identified no errors of law on the part of the employment tribunal that justified any appeal against its decision to the appeal tribunal, let alone to this court. The challenges are all to the tribunal's findings of fact, whereas no appeal against such findings lies to the appeal tribunal. There was evidence upon which all could be made and to the extent that the applicant challenges them as perverse there is no real prospect of his making that case good.
65. I propose to refuse permission to appeal to this court on all grounds. I recognise that the applicant will be disappointed by that, because he plainly feels that he has been the victim of studied ill-treatment by his employers over the whole unfortunate period of his employment with the school. He has, however, had the benefit of a hearing lasting (I think) about 12 days before the employment tribunal, whose task it was to find the facts and to make the decisions on the relevant issues. The tribunal carried out that task with apparent care and conscientiousness. The applicant may not like the findings of fact that the tribunal made, but he is fixed with them. No appeal lies to the appeal tribunal on matters of fact, and I have not been persuaded by him that he has identified any error of law by the employment tribunal that merits a yet further appeal from the appeal tribunal to this court.
66. I refuse the applicant's application for permission to appeal.