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Cite as: [2005] ScotCS CSIH_19, [2005] CSIH 19

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Marks & Spencer Plc v. Laneres [2005] ScotCS CSIH_19 (11 February 2005)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Marnoch

Lord Mackay of Drumadoon

Lord Emslie

[2005CSIH19]

XA11/04

OPINION OF THE COURT

delivered by LORD MARNOCH

in

APPEAL

under

Section 37(1) of the Employment Tribunals Act 1996

by

MARKS & SPENCER plc

Appellants;

against

Ms. LORRAINE LANERES

Respondent:

regarding

An Order and Judgment of the Employment Appeal Tribunal dated 25 November 2003 and communicated to the Appellants on 15 December 2003

_______

Act: Connal, Q.C., Solicitor Advocate; McGrigor Donald

Alt: Absent

11 February 2005

[1] In this appeal we were informed that the employee/respondent could not be represented for financial reasons but we have nonetheless kept in mind her interests when listening to the submissions advanced on behalf of the appellants. These submissions were advanced under two mains heads.

[2] In the first place it was argued that the Employment Tribunal had not been entitled to make a finding that the present appellants' delay in dealing with the respondent's grievance had amounted to a material breach of contract. In this connection, we can understand the appellants' unease at the manner in which the Employment Appeal Tribunal approached this matter. That approach was as follows:

"In the authorities it is specifically stated that investigation should be both prompt and reasonable. Obviously, quality and depth of an investigation bears upon whether it is reasonable, but we are quite prepared to hold that a mere passage of time, whatever is going on, can categorise an investigation unreasonable if it exceeds the test of promptness to a material extent."

[3] It is, we think, with respect, rather a bold statement that "whatever is going on" may be immaterial to a decision in this area of the law. That said, however, it has to be recognised that the Employment Tribunal, with the benefit of its own experience and having regard, inter alia, to the size of the appellants' personnel department, reached the clear conclusion that there was "no justification whatever for the investigation not to be concluded by 16 February 2001" and that this constituted a material breach of contract. In all the circumstances we do not think that those findings can properly be altered.

[4] The second head of argument was that, whatever else, the Employment Tribunal had been justified in holding that the respondent's resignation had not been brought about by the material breach of contract just mentioned. On this matter the Tribunal, after a careful appraisal of the evidence and the inferences to be drawn from it, by majority reached the view that what caused the respondent's resignation was the prospect that the fellow employee against whom she had stated her grievance was going to escape punishment. We do not ourselves set out the relevant findings and reasoning because they are quoted in full within the written judgment of the Employment Appeal Tribunal which then goes on to say this:

"The question therefore to be determined by us, is whether the Tribunal properly directed itself on the issue of effective cause and we have decided that it did not. We consider that the question of length of time cannot be separated out from the whole issue of resignation in relation to the investigation, and, if it cannot be separated out, it must be included in, as one of the factors. That, in our opinion, is sufficient to determine that it was an effective cause even if there were other factors tied into the matter."

[5] Whatever else this passage may mean, it is difficult to find in it any clearly identified error in law on the part of the Employment Tribunal. On the contrary, as was submitted by Mr. Connal for the appellants, it looks as if the Employment Appeal Tribunal is itself taking a different view of the evidence - which, of course, it is not entitled to do, - Woods v. WM Car Services 1982 I.C.R. 413; Martin v. MBS Fastenings 1983 I.R.L.R. 198 per the Master of the Rolls (Sir John Donaldson) at paras. 10, 17 and 18.

[6] For ourselves, after careful scrutiny of the Employment Tribunal's findings and reasoning, we can detect no error in law such as would entitle an appellate tribunal to interfere with the conclusion which it, the Employment Tribunal, reached on this matter.

[7] In respect of the second head of argument, therefore, the present appeal must be upheld, the judgment of the Employment Appeal Tribunal reversed and the decision of the Employment Tribunal restored.

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