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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Elwick v Kingston Upon Hull City Council [1994] UKEAT 209_94_2807 (28 July 1994)
URL: http://www.bailii.org/uk/cases/UKEAT/1994/209_94_2807.html
Cite as: [1994] UKEAT 209_94_2807
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At the Tribunal
THE HONOURABLE MR JUSTICE MORISON
MR T S BATHO
MRS P TURNER OBE
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
For the Appellant APPELLANT IN PERSON
MR JUSTICE MORISON: This is a preliminary hearing, the purpose of which is to decide whether a prospective appeal brought by Mr Elwick against the decision of an Industrial Tribunal which was entered on the register on 14 December 1993, gives rise to an arguable point of law, such that we can take jurisdiction over it and for the matter to go before a full hearing of the Employment Appeal Tribunal.
This Employment Appeal Tribunal only has jurisdiction to resolve issues of law, which are raised by parties following an Industrial Tribunal hearing. We cannot review the facts or the conclusions arrived at by an Industrial Tribunal unless we are satisfied that the Tribunal have in some way misdirected themselves in law, either expressly or implicitly, by arriving at a conclusion which was perverse.
The application that was made in this case related to the ending of Mr Elwick's employment with the Kingston Upon Hull City Council, by whom he had been employed for 14 years. It is to be noted that throughout his employment, and it has never been suggested to the contrary, he gave loyal and faithful service to his employers.
At the time of his employment coming to an end he had been employed for some eight years and held the position of operation manager at the Ennerdale Leisure Centre. As such, he had authority over a number of employees working at that Centre but he had no powers directly with regard to discipline over those people. Those matters fell within the purview of his area manager, to whom Mr Elwick reported, in this instance a Mrs Winn. One of the fellow employees at the Ennerdale Leisure Centre was a Mr Atkin and in due time, following incidents that occurred, a report was made by Mr Elwick to his superior, Mrs Winn, and a disciplinary hearing was arranged and came before Mr Taylor. It was alleged that Mr Atkin had been guilty of misconduct. The seriousness of it is a matter of judgment for the employers but they treated it as a matter giving rise to a full-scale disciplinary hearing, at which, in effect, Mrs Winn was the prosecutor and Mr Atkin was represented by a trades union official from a union with whom the employers were in delicate negotiations.
The outcome of those disciplinary proceedings was that Mr Atkin was given what is described as a verbal, but I think it must mean an oral warning, as to his behaviour as to one of the matters and in relation to what Mr Elwick regards as the more serious matter and I think we agree that it was the more serious matter, they found that that complaint was not made out. The allegation had not been proved to their satisfaction, so that apparently they did not feel able to take any disciplinary action against Mr Atkin in that connection.
Quite rightly Mr Elwick has emphasized to us during the course of his submission today the safety aspects of the job which he was employed to perform and he says that in order to carry out those duties in a safe and proper way he is entitled to receive the trust and confidence of his superiors including, in particular, presumably, Mrs Winn and Mr Taylor. He says that as a result of their not being prepared to accept what he had to say about the more serious of the two incidents, it being a matter entirely of his own evidence rather than evidence from anybody else, he felt that that trust and confidence had been destroyed so that he was entitled to leave his employment in circumstances which amounted, on their part, to a serious breach of contract and, therefore, he alleged that he had been constructively dismissed.
He presented to an Industrial Tribunal his IT1, setting out in some detail the essence of his complaint against his employers. Again, in some detail the employers presented their rebuttal to his complaint in their IT3 and the matter came on for hearing, after an adjournment, on Wednesday, 24 November 1993.
What happened on that occasion and we are grateful to Mr Elwick for telling us in detail what exactly happened, was this: at the outset, Mr Elwick was invited to give his evidence and he was sworn in and gave his evidence largely, we think, unprompted, by questions from his own representative, a Mr Williamson, from a different union to that which had been involved on behalf of Mr Atkin at the disciplinary hearing. Mr Williamson provided some support to Mr Elwick but only asked one or two questions of him during the time when he gave his evidence in chief. He was then subjected to a certain number of questions from the solicitor who was acting for the Kingston Upon Hull City Council and after that Mr Williamson was given the opportunity to re-examine him. He told us that the Tribunal throughout the course of this procedure asked only one or two questions of him. That was the end of his evidence and as he had no witnesses to call to give oral evidence, that was the end of his case that he had been constructively dismissed.
Where an employee is alleging that he has been constructively dismissed, it is for him to prove that he was so dismissed to an Industrial Tribunal and, therefore, unlike the case of a normal unfair dismissal application where the burden of proof lies on the employer, it is for the employee to commence the evidence and to satisfy the Tribunal on a balance of probabilities that the employers have so conducted themselves towards him that he was entitled to walk off from his employment.
Accordingly, the Tribunal were entitled at the end of Mr Elwick's evidence to consider for themselves whether he had done enough in the course of giving his evidence to persuade them that they ought now to hear what the employers were going to say because if Mr Elwick had not been able to persuade them that there was an arguable case for unfair dismissal, then they were entitled to stop the case at that stage.
As we understand it, having concluded his evidence, the Tribunal indicated to Mr Elwick that they would rise for a few minutes in order to consider the matter and they came back and indicated that, subject to any submissions that might be made by Mr Williamson, they were minded to dismiss the complaint. Whereupon, as we understand it, Mr Williamson, to use the expression which has been used by Mr Elwick, skirted round the case in the sense that he gave a brief summary of the way he put the case on constructive dismissal. That case was rejected by the Industrial Tribunal, who came to the clear conclusion that on Mr Elwick's own evidence, there was not a case for saying that the employers were in breach of contract.
Unfortunately, the position is this: Mr Elwick and his representative had believed that they would be in a position to cross-examine the witnesses who were going to give evidence, had they overcome the initial hurdle and, therefore, there were some points which would have been stressed more if they had known that the case was going to be stopped at half-time, which they could and would have mentioned if they had known what the Tribunal was actually going to do. For example, they wanted to cross-examine Mr Turner on the basis that he was going soft on Mr Atkin in order to satisfy Mr Atkin's representative, Mr Gibling, because of the delicate state of negotiations which was taking place between them. Secondly, he would have wanted to have cross-examined Mr Turner about the use of the word "short-term" in the IT3 which the employers had put in. Further, in relation to Mrs Winn, they would have wished to have questioned her about the conflict of her contemporaneous memorandum and the written statement of evidence which had been supplied to Mr Elwick for the purposes of an earlier hearing, in case she had not appeared to give evidence herself and they would have wished to have questioned her closely about what she is said to have said to Mr Elwick about what Mr Taylor had said to her after the disciplinary hearing to the effect that he had in fact believed what Mr Elwick had told him at that disciplinary hearing.
In addition to that, they would have wished to have referred to a short-coming in the disciplinary hearing that the representative for the prosecution, if I could call it that, Mrs Winn, had not been given an opportunity to put forward a summary of their case before the Tribunal arrived at its conclusion. They would have argued that fact that it was unprecedented to send a memorandum of the sort which she sent to Mr Taylor and they would have wished to have cross-examined the employers very carefully about why it was that they had apparently lost the written response which they had given to the Department of Employment when there had been a debate between Mr Elwick and the employers as to his entitlement to unemployment benefit. Furthermore, Mr Elwick would have wished to have cross-examined them about why it was that they had allowed a grievance raised against him by Mr Atkin to fester, as he put it, for so long and he would also have liked to have cross-examined the parties about the minutes of the disciplinary hearing.
The difficulty that we have in this case is that we are satisfied that so far as the Industrial Tribunal were concerned, they were entitled to take the course which they did. They were not obliged, as it seems to us, to go through to the end of the case in the sense of requiring the employers to give evidence so as to allow the applicant, Mr Elwick, to cross-examine them. The way the Tribunal procedure works is that the Tribunal is only obliged to consider both sides of the case if the party who has the burden of proof has sufficiently hit the ball over the net to require there to be a response and, in this case, they did not believe that the burden to proof had been shifted so as to require a response from the employers.
It seems to us that the Tribunal cannot be blamed for what happened because they had available to it a bundle of documents, which Mr Elwick and his representative were entitled to refer to at any stage during the course of his evidence and Mr Elwick himself was entitled to raise all the points to which we have just referred, which he would have wished to cross-examined the witnesses about. That being so, it seems to us that there is no error of law on the part of the Industrial Tribunal for stopping the case when they did.
We therefore asked ourselves the question whether, even if that was not wrong in law, there are grounds for believing in some other way that justice requires that there should be some kind of new hearing for this case and I have to tell Mr Elwick that, having applied our minds to that question, which probably falls out of our jurisdiction, I have come to the very clear conclusion that none of the matters which he raised could have made and would have made any difference to the eventual outcome. That is because, as it seems to us, when a complaint is made of alleged misconduct, the disciplinary body is entitled to reach one of two conclusions: either that the case was made out, in which case they must take disciplinary action against the individual concerned or that the case was not made out, in which case they should not. If, as a result of believing the allegations which had been made they find the case proved and take disciplinary action, they expose themselves to the risk of an Industrial Tribunal application alleging that they have behaved unfairly. If Mr Elwick's position is correct, as he maintained to this Tribunal, employers would be put into a completely impossible position because, if they did not find in favour of the complaint, then their manager would be entitled to walk out and say that his contract had been broken as a result of the employers not giving him the support which he deserved.
Accordingly, in a sense, in principle, we think that Mr Elwick's case was not going to succeed, although we do not rule out the possibility that there may be behaviour by an employer in such circumstances that the employee is entitled to walk out after a disciplinary hearing of this sort. He quite rightly expresses the fact that he appears not to have been given the sympathetic treatment which he required in order to maintain him in his position as manager by the City Council after they had adjudicated on the matter and we, for our part, would say that the City Council could be criticised for the way they dealt with it. But that is well short of saying that we are satisfied that they had thereby broken the contract of employment of Mr Elwick.
Accordingly, we see nothing wrong with the decision of the Tribunal as it stood on the evidence before them. We see nothing wrong with the Tribunal stopping the case when they did because the ball had not been, as I put it, knocked over the net and the preliminary burden of proof had not been discharged and it seems to us, therefore, that there is no arguable case in law.
I would just add one other thing: of course it would have been open to the employers in this case not to have called any evidence at all. No party who has the burden of proof in an industrial tribunal, save in discrimination cases, should ever assume that the opposite party is going to give evidence. They are not obliged to do so. They themselves can rely wholly upon the applicant's own evidence and I suspect that what would have happened in this case, although I do not know, if the Tribunal themselves had not taken the point, is that the employers would have submitted that there was no case to answer and, if they had made that submission, then the Tribunal would have been entitled to have ruled upon it without any evidence being called at all by or on behalf of the employers.
Therefore, although we have sympathy as always with an applicant who particularly feels that he has not had a fair crack of the whip in the Industrial Tribunal, we have to fulfil our duty which is to see whether there is a point of law. Having concluded that there is none, it is our duty to dismiss this appeal, which is what we do.