England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2A 2LL
		17 June 2015

1. LORD JUSTICE JACKSON: This is an application for permission to appeal to the Court of Appeal.
2. The facts giving rise to this application are as follows. The Respondent employed the Claimant as a band 7 psychologist therapist from 9 April 2008 until 19 October 2012. The Claimant in fact resigned on 16 September 2012, but 19 October that year was agreed as the date for termination. The Claimant was employed for most of the time at Merthyr Tydfil, but during the last two months or so she was based at Pontypridd, a post to which she had agreed to move.
3. The Claimant made a claim for unfair dismissal on the grounds that the Respondent had constructively dismissed her by reason of a series of breaches which destroyed the relationship of trust and confidence between the parties. She also made financial claims.
4. The Employment Tribunal sitting at Cardiff heard the Claimant's claim over a period of 4 days in May 2013. Eight witnesses gave evidence, some orally and some in writing. The Tribunal received some 800 pages of written evidence.
5. In its judgment dated 1 July 2013, the Employment Tribunal went through each of the Claimant's complaints with meticulous care. It dismissed almost all the alleged breaches of contract. It found one or two matters proved, but did not regard them as of any great moment. Indeed, it characterised them as trivial.
6. The Tribunal found that the Respondent had gone to considerable lengths to be helpful and supportive to the Claimant, but the Claimant had been unreasonable in her demands. The Tribunal found that the Claimant had sent insulting e-mails to Mrs Bretton, her line manager. She had copied in Mrs Bretton's colleagues, which caused humiliation.
7. After reviewing all of the Claimant's allegations with care, the Employment Tribunal firmly rejected the allegation of constructive dismissal. The Tribunal also rejected the Claimant's various financial claims. The Tribunal then turned to the matter of costs. It found that 20 per cent of the Claimant's claims were misconceived. On that basis, it ordered the Claimant to pay £1,487.50 to the Respondent in respect of costs.
8. The Claimant appealed to the Employment Appeal Tribunal both about the substantive decision of the Employment Tribunal and about the award of costs. The Employment Appeal Tribunal rejected that appeal. It took the view that the Employment Tribunal's findings of fact on the evidence could not be overturned, that the Claimant had received proper warning of her risk as to costs, the costs order was firmly within the remit of the Employment Tribunal and was not one which the Employment Appeal Tribunal might overturn.
9. The Claimant remained aggrieved by the decision of the Employment Tribunal and indeed by the decision of the Employment Appeal Tribunal and accordingly applied for permission to appeal to the Court of Appeal. This matter was considered on the papers by Lewison LJ, who concluded that all of the proposed grounds of appeal were unarguable in his decision dated 18 December 2014.
10. The Claimant is aggrieved by that decision and accordingly applies orally at a renewed oral application for permission to appeal. The Claimant has presented her arguments clearly and concisely. I am most grateful for that. Mindful that she only has limited time, the Applicant concentrated on what she regarded as her best points.
11. Her first contention is that as an employee of the Respondent she was entitled to have her job evaluated and she was entitled to be considered for regrading so that she would move up the ladder from a band 7 psychologist therapist. The evaluation did not take place. That was a breach of contract.
12. The Employment Tribunal did not allow an amendment to the Applicant's pleadings in that regard. It did, however, deal with the substance of the matter in paragraphs 14, 55 and 56 of its decision. The Employment Tribunal came to the conclusion that there was no substance in this head of claim. At paragraph 57, the Employment Tribunal said this:

"Concerning the Claimant's complaints regarding the alleged failure to hold an annual PDR or annual review, in the judgment of the Tribunal from a reading of the statement of employment particulars, this was not a contractual requirement. Such a term does not appear apt for incorporation in any event. The Tribunal heard evidence about the mergers of a variety of health boards and health trusts that took place during the employment relationship and there was consequently a delay in carrying out annual reviews. As a result, the Claimant was offered an annual review by Mrs Bretton and said that she did not want to proceed due to the fact that her grievance was being considered. The Tribunal finds that there is no breach of contract in relation to this complaint. There was no contractual requirement and if there was, it was waived by the Claimant."

13. The Tribunal also considered in some detail the Applicant's claim to be entitled to a regrading. It noted that those who were above the Applicant in the managerial chain did not support the proposition that she qualified for regrading. Accordingly, there was no breach of contract in that regard.
14. The Applicant draws my attention to paragraphs 31 to 35 of the Employment Appeal Tribunal's decision which she says do not deal properly with this head of claim and this part of her appeal to that Tribunal. The Employment Appeal Tribunal came to the conclusion that the Employment Tribunal's findings of fact concerning job evaluation and regrading were not open to challenge on appeal.
15. Accordingly, even if the proposed amendment should have been allowed by the Employment Tribunal, the matter had in fact been dealt with and the Applicant's claim could not have succeeded. I do not accept these criticisms of paragraphs 31 to 33 of the EAT judgment which seem to me to be legally correct. I agree with their analysis.
16. Miss Laville submits that her evidence about regrading and job evaluation was not taken into account by the various tribunals and was dealt with superficially. I am afraid I do not accept that argument. It seems to me that although the Applicant's evidence ran to considerable length, it was considered. It was dealt with concisely. That was all that the Tribunal was required to do.
17. Miss Laville then submits that the Employment Tribunal and the Employment Appeal Tribunal went wrong because they failed to accept numerous breaches of contract which the Applicant alleged or sought to allege. She submits that the second paragraph of the Employment Tribunal's order made at the start of the hearing in July 2013 was flawed. That paragraph reads:

"The Claimant's application to amend her claim to bring an unlawful deduction from wages claim is dismissed."

18. The Applicant argues that there was no need to amend because this matter was covered in her claim form and if amendment was required, it should have been allowed.
19. In developing that submission, the Applicant took me to her original claim form and in particular to the second paragraph. On the second page of paragraph 5.2 of her claim form there is a very brief reference to the disagreement about grading and job evaluation in that sentence. It seems to me that that was adequately dealt with in fact by the Employment Tribunal.
20. So far as leave to amend is concerned, this is very much within the discretion of the first instance tribunal. It would be wrong in principle for the Employment Tribunal in a case like this to allow an amendment which would expand the hearing or worse still necessitate an adjournment. That gives rise to massive costs on all sides and wastage of tribunal time.
21. It seems to me that the Employment Tribunal was right to refuse permission for the proposed amendment. In any event, the gist of what the Applicant wished to argue about was there in her claim form and it was dealt with by the Tribunal and indeed by the Employment Appeal Tribunal as well.
22. The Applicant took me to an e-mail at pages 106 and 107 of the bundle which contains a number of allegations for which she did get leave to introduce by way of amendment. She refers in particular to paragraph 4, paragraph 10 and paragraph 11.
23. It seems to me that all was well on that front. Those paragraphs were considered by the Employment Tribunal. In the course of the Tribunal's decision rejecting the principal claims for breach of contract, all of those paragraphs were dealt with.
24. The Applicant submits that when she moved to Pontypridd she was not issued with a job description and that was a breach of contract. Undoubtedly the Applicant did take on a new role at Pontypridd. She was asked to do so and she agreed to do so. That is established by the Employment Tribunal in its decision and confirmed by the Applicant in her submissions to this court this morning.
25. The Applicant submits that she did not receive at Pontypridd the role she was expecting or the management structure that she was expecting. She was only there for a very short time before matters came to a head and she tendered her resignation. The Employment Tribunal does not find any material breach of contract in that regard.
26. These are issues of fact which the Court of Appeal cannot reopen. Unfortunately, there has been an unhappy relationship between Miss Laville and her employers. There are criticisms made on both sides. The Employment Tribunal has gone into these matters with an open mind and in a fair way and has, broadly speaking, come to the conclusion that the employer's version of events is correct and should be preferred over that advanced by the Applicant. Obviously it is distressing for anyone to have their factual case rejected, but it is quite impossible to reopen findings of fact after a very detailed hearing in a case like this before the Court of Appeal.
27. If I were to give permission to appeal to the Applicant, her appeal would undoubtedly fail and she would be landed with a huge bill of costs payable to the Respondent. It would be no kindness for me to give permission to appeal.
28. I should add that the costs order made by the Employment Tribunal was considered and upheld by the Employment Appeal Tribunal. In her full skeleton argument, the Applicant is critical of that costs order. However, I think that it was a proper order with which the Court of Appeal will not interfere.
29. There are many other complaints and arguments which Miss Laville has advanced in her various skeleton arguments and in her grounds of appeal. I have considered all of those matters and I am afraid that I do not see force in any of them. In this short judgment, I deal only with the particular points on which Miss Laville focused in oral argument.
30. For the reasons which I have given, this application for permission is refused.