United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 251_94_1901

Appeal No. EAT/251/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19 January 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR E HAMMOND OBE

MR J A SCOULLER

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GROSS KLEIN & CO          APPELLANTS

MRS S COLLINS          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR A P KLEIN

MR H GROSS

(APPELLANTS IN PERSON)


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal against the decision of the Industrial Tribunal held at London (South) in February, April and at the end of June and beginning July 1993.

The case heard by the Tribunal was between the same parties as in the appeal we decided earlier today on the question of an order for costs made by the Chairman of the London (South) Tribunal on an adjournment.

The Applicant was Mrs Susan Collins, who was first secretary and then office manager working for a firm of Accountants, Gross Klein & Co in Breams Buildings. She had been employed from the middle of June 1987 until the end of April/beginning of May 1992.

The circumstances in which she left her employment gave rise to the originating application presented by her on 28 May 1992. She claimed unfair dismissal. Her case was that she was constructively dismissed due to the actions of her employer. She gave details of that complaint in box 10 of the Form IT1. She said that her contract was unilaterally varied. She was supposed to do work that she had never been trained for and which was not expected of her previously. This involved the preparation of cash book, debt collection and office costings. When the Applicant was unable to satisfy her employer regarding these new tasks, she was verbally abused, reprimanded and threatened with dismissal. At meetings on 14 February and 24 April 1992, her employers verbally abused and unfairly reprimanded her in relation to her duties. She was blamed for the fact that the employer had to give a pay rise to all other employees and the Applicant was informed that everyone else would be getting a pay rise except her.

Her employer instructed her immediate superior, Mr Didar Ladhani, to make it impossible for her to complete her daily tasks by asking her to do other tasks. This meant that she got further behind in her work and that was another pretext for her employer unfairly to reprimand and abuse her. She complained that she had been unfairly dismissed since the contract had been unilaterally varied without her consent, that she had not been given a sufficient opportunity to learn how to do her new tasks or given sufficient training to be able to complete them. Her employers' abusive behaviour was in breach of contract with her and the campaign against her was so intensive that it affected her health. The employers attitude to her was so derogatory that she was unable to continue to work for them.

That complaint was amplified by particulars dated 17 February 1993. The amendment under the heading "Further details of complaint" added this:

"In consequence there has been a repudiatory breach by the Respondent's of the implied term of her contract of employment, in that the Respondents should not have without reasonable and probable cause conducted themselves in a manner calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence between the Respondents and the Applicant.

8. The said implied term embraced a duty on the part of the Respondents as employers

(a) to treat the Applicant with due respect and civility, including a duty not to reprimand her in a degrading and humiliating manner.

(b) To maintain her trust and confidence in the Respondents by avoiding acts which undermined her trust and confidence.

(c) Not to persistently attempt to unilaterally vary her terms and conditions of service.

The facts of the matters relied upon form part of a cumulative series of acts which when taken together amount to a breach of that implied term:

(a) There were complaints about her performance.

(b) She was shouted at and threatened implicitly and/or explicitly with dismissal.

(c) There were persistent attempts to redefine her job duties unilaterally, or at least by bullying her with resulting complaints against her further undermining her trust and confidence in the Respondents as her employers."

The claim was contested by Gross Klein & Co. They were represented during the proceedings by a personnel consultant, Mr Scuplak. They put in a notice of appearance dated 10 July 1992, denying that she was dismissed. They said:

"a sick note with a medical certificate was sent to us by the applicant on 27th April and received by us ... on 28th April. Office procedure was not followed as no telephone call was received on 27th April. The medical certificate expired on 11th May, however on 6th May we received notification from Talfourd & Co [the solicitors representing Mrs Collins in this matter] that she had left our employment.

2. ... her job evolved and new tasks were introduced from time to time. Written instructions were prepared and training was given. The applicant had previously offered to do anything within reason. The applicant did not object to the work that was given to her and for which she was financially rewarded. The applicant became the highest paid of the administrative secretarial staff and was responsible for the department."

The firm vigorously disputed the allegations against them. They said that:

"regular management meetings were held at which the partners and the applicant were present. The meetings were minuted by the applicant.

4. With reference to the meeting on 14th February [referred to in her complaint] there was a letter of apology received from the applicant withdrawing her allegations. The meeting of 24th April was not concluded as the applicant left to collect her daughter. The respondent denies verbal abuse."

The other matters alleged in the originating application and the amendments were disputed by the Respondents. They concluded the IT3 by saying:

"We would draw to your attention our comment in paragraph 1 where the applicant claims that she was dismissed but sent in a sick note and medical certificate and was in receipt of statutory sick pay until 30th April. The respondents respectfully submit that the applicant was not dismissed but had in fact resigned."

It is clear what the issue was before the Tribunal. There were a lot of detailed matters, but the essential question for the Tribunal was one of fact, namely, whether Mrs Collins had been dismissed constructively and, if so, was it unfair dismissal. Or had she resigned, in which case she could not bring any case based on dismissal.

The hearing took place in the Tribunal on the dates already mentioned. According to the record of the proceedings, Mr Scuplak represented the Respondents. Evidence was given by the partners. Counsel and solicitors represented Mrs Collins and evidence was given on her behalf by, among others, Miss Gosnall.

The Tribunal reserved the decision. They sent out a letter dated 16 December 1993 to the solicitors for Mrs Collins, with a copy to Mr Scuplak of the IRPC Group Limited, as representatives of the Respondents, saying:

"The Tribunal have now met to reach a decision in this case, and the Chairman has directed me to write to you to inform you that the unanimous decision of the Tribunal was that the Applicant terminated her contract of employment without notice in circumstances such that she was entitled to terminate thus by reason of the Respondent's conduct, hence she was dismissed for the purposes of Section 55 of the Employment Protection (Consolidation) Act 1978. Inasmuch as the Respondents have shown no reason for that dismissal it is an unfair dismissal."

They then set out a mathematical calculation of a sum of compensation totalling £10,675.19.

They stated that she had not caused or contributed to her dismissal, that she had not failed to mitigate and that the recoupment provisions did not apply.

The letter concluded:

"A formal decision will be promulgated in due course."

On 21 January, without having received a formal decision, a letter was sent by Gross Klein & Co to the Industrial Tribunal at London (South) referring to the letter of 16 December 1993:

"We have been awaiting the formal decision in this matter, which `will be promulgated in due course' by your office, but this has not as yet been received.

Bearing in mind the time limit imposed for Appeal is rapidly approaching, we must have sufficient time to consider our position, but cannot make such a decision without seeing the formal decision of the Tribunal. We therefore respectfully suggest that the forty two days Appeal period commences from the date of issue of the formal decision. We shall specify the grounds of Appeal (if any) after we have received from you the formal decision, which we understand should contain the basis upon which the Tribunal reached its conclusion. We also need to see the plaintiff's written submission, which has yet to be provided to us."

They add:

"please treat this letter as our formal application for review and/or Appeal. As we have no details as to how the Tribunal has arrived at its decision, we do not know how to proceed to challenge the decision."

In fact, the Industrial Tribunal decision was sent out to the parties and entered in the Register on 20 January 1994. The Tribunal stated their decision, as indicated in the letter. They then set out under the heading "Reasons" what are expressly made clear in paragraph 7 of those reasons, to be reasons in summary form.

I will read the decision reasons in full:

"1. The Applicant was employed by the Respondents for almost five years before her employment came to an end in early May 1992. The Applicant commenced that employment as a secretary, but in April 1991 she was given the title of office Manager and expected to undertake more general responsibilities. In the latter part of 1991 and the first few months of 1992 the Respondents added to the Applicant's responsibilities and duties to an inordinate degree, and increased the pressure upon her in an unjustified manner.

2. The Tribunal listened to what the witnesses had to say, and the manner in which they said it, and watched their demeanour, very carefully indeed. Whilst the Applicant was not a perfect witness, the Tribunal found her evidence, and that of her witness, Miss Tanya Gosnall, on the whole, to be far more credible and reliable than that of the Respondents and their witness. Moreover, in the view of the Tribunal, the Applicant's version of events was substantiated by the contemporaneous documents. We found the Applicant's letter of 15 February 1992 particularly compelling.

3. The Tribunal accepts that the falsely termed `appraisal' interview of 24 April 1992, not only as to the bullying and generally abrasive manner of both partners in the Respondent firm during that interview but also the content of the interview and the inordinate length of it (particularly in view of the Applicant's known responsibilities to her child) amounted to a flagrant breach of the term of trust and confidence which we hold is to be implied in the Applicant's contract of employment by reason of her semi-managerial status and position in the Respondents' firm. Indeed, quite apart from that implied term, the Respondents' treatment of the Applicant on that occasion was inhumane and would justify the most humble employee in leaving such employers.

4. Throughout, the Respondents did not seek to show that their dismissal of the Applicant was for any reason, and therefore the dismissal is necessarily an unfair dismissal for the purpose of Section 57 of the Employment Protection (Consolidation) Act 1978.

5. We find on the evidence that the Applicant did not cause or contribute to her loss for the purposes of Sections 73 or 74 of the 1978 Act, and that she did not fail to mitigate her loss. We further find that the Recoupment Regulations do not apply."

They then set out the calculation of compensation.

The Respondents were, to say the least, dissatisfied with the decision. They appealed by notice of appeal dated 28 February 1994 and received in this Tribunal on 1 March 1994. The stated grounds of appeal were deceptively brief. They said:

"Attached copy of Application for Review submitted to the Industrial Tribunal on 2nd February 1994, together with Medical Certificate for Mr Gross. We are awaiting copies of the Transcript and Chairman's Notes of the Hearing to enable us to make a detailed submission on the points raised and other matters that may arise from the Transcript and Chairman's Notes."

I say "deceptively brief" because the document attached from the application for review was a very full document. It has been subsequently amplified for the purposes of the review, which has now taken place, by substantial written submissions.

It is apparent from the notice of appeal that there was further activity between Gross Klein and the Tribunal. A letter was written by Gross Klein to the Tribunal on 3 February, further to the letter of 21 January, enclosing the application for review mentioned in the notice of appeal. The letter states:

"As set out in the attached submission as we did not receive the formal decision or the written submission of the Applicant until 24th January we have not had sufficient time to review and consider the documentation to ensure that all the issues are put forward for the review procedure. In addition we have requested a copy of the transcript and the Chairman's notes which bearing in mind the issues raised are of considerable relevance and importance.

We should be grateful if you would kindly acknowledge receipt of this letter and attached documentation."

Further to that letter, a letter was sent a month later, on 9 March, noting that they had not as yet received, as requested, the Chairman's notes or transcript of the hearing. The letter states:

"Without this information we are unable to complete our submissions in connection with the review and the subsequent appeal, which has been made to the Employment Appeal Tribunal.

Notwithstanding the above, to avoid further delay, and so that hopefully matters can be progressed further we enclose herewith our further and more detailed draft submissions with accompanying exhibits. These cannot be completed until such time as we receive the Chairman's notes and transcript of the Hearing and we trust that these will now be provided to us.

We have forwarded a copy of the submissions and exhibits to the Employment Appeal Tribunal in support of the appeal lodged with them."

There was a reply on 22 March from the Regional Secretary of Tribunals, thanking them for their letter, saying that instructions had been given to the Tribunal to reassemble to hear the application for review. It was pointed out that the Industrial Tribunal had no function in connection with an appeal to the Employment Appeal Tribunal. It then stated:

"The Chairman refuses your request for a copy of his notes of the hearing. There is no such thing as a transcript of evidence in these Tribunals.

Please inform me whether it is the case that you desire to act directly in future instead of being represented by Mr Scupalak. Failing such an intimation from you, all future communication will be sent to Mr Scupalak."

In reply to that, Gross Klein wrote on 12 April, noting the instructions for the reassembly of the Tribunal to hear the application for review, stating that they would represent themselves and asking for guidance on how this should be dealt with. They stated:

"We noted the Chairman's refusal to supply a copy of his notes, which does make it very difficult, if not impossible, to make an Application, especially in view of the comment made by the Tribunal in the decision."

They said they were concerned as to the way in which the matter was conducted. They mentioned a number of complaints.

The position, therefore, was that there was a request made for Chairman's notes and for a transcript, but no request was made for full reasons. Under the 1985 Rules applying to Industrial Tribunals it is provided in relation to the decision of an industrial tribunal in Rule 9(3) that:

"A tribunal shall give reasons, which may be in full or in summary form, for its decision.

(4) The reasons for the decision of the tribunal shall be recorded in a document signed by the chairman, which shall also contain a statement as to whether the reasons are in full or in summary form."

Here, as already noted, the reasons given in the Chairman's signed decision were summary. It is then provided in (5)(c) that where:

"a request that the reasons be given in full is made orally at the hearing by a party or by a person entitled to appear who did so appear; or

(d) such a request is made in writing within 21 days of the date on which the document recording the reasons in summary form was sent to the parties;

the reasons shall be recorded in full in a document signed by the chairman."

It is clear from those provisions that the obligation to provide full reasons is dependent on a request being made either at the hearing or in writing within 21 days of the sending out of the decision document or within such further period as may be extended.

The position here is as pointed out by the Regional Secretary of the Tribunals in a letter dated 13 June 1994.

"Your letter of 21 January [the date of Gross Klein's letter I have mentioned] ... the Tribunal's formal Decision had already been promulgated and sent to your representative on the record, Mr Scupalak. You have never, at any time, requested full written reasons (or, as Rule 10 of the Industrial Tribunals Rules of Procedure 1993 now terms them, `reasons in extended form'), and Rule 10(4) provides that reasons shall be given in summary form except where, amongst other considerations, a request for reasons to be given in extended form is made by a party either at the hearing or within 21 days of reasons in summary form being sent to the parties. At that time you were represented by a commercial, and, presumably, paid, representative."

Apart from the references to the 1993 Rules, instead of the 1985 Rules, we would agree with those comments.

The position today is this: this is a preliminary hearing to decide whether this matter can go on to a full hearing. We only have summary reasons. There are no full reasons. None have ever been requested. The Tribunal was right in saying that the Tribunal does not itself produce a transcript of the hearing. It does not voluntarily produce the Chairman's notes of the evidence. This Tribunal is the only tribunal that can order a Chairman to produce notes of the evidence. Even this Tribunal will only make such an order where it considers that it is necessary to have those notes in order to decide the legal point on an appeal. It is rarely necessary to have the notes, since appeals are limited to questions of law under s.136 of the 1978 Act. If there are errors of law, in most cases they will be apparent from the reasons given for the decision. The notes of evidence kept by the chairmen add nothing to that.

The matter was set down for a preliminary hearing. In the meantime, the review, which had been applied for in February 1994, was actually held. It was held on 20 June 1994 and 11 July. Mrs Collins appeared in person. Mr Gross appeared for Gross Klein. In document that runs to 21 pages, and was sent to the parties on 17 November 1994, the Tribunal examine in great detail all the criticisms made by Mr Gross of the decision, which is the subject of this appeal. When I say "all the points made by Mr Gross", it is necessary to note the Tribunal's statement in paragraph 1 of its reasons for refusing a review, that Mr Gross's submissions contain many instances of misconceptions and misrepresentations. The Tribunal had considered all that Mr Gross and the Applicant had said, spending a further five hours in that consideration on a subsequent date. The review was refused.

The review helps to identify areas of complaint against the decision under appeal. We have heard at the hearing today from, first, Mr Gross and then Mr Klein, as to the very numerous complaints they have about the decision and the manner in which the proceedings were conducted before the Industrial Tribunal. These complaints are set out in detail in the review decision, where they are commented on. They are set out in even greater detail in written submissions which have been placed before us. We have made a careful note of the various kinds of complaint. I am not going to repeat them in this decision, for this reason: the only question before us today is whether this appeal can proceed beyond the preliminary hearing to a full hearing. We have come to the conclusion that it cannot, for this reason: the Employment Appeal Tribunal Rules 1980, which were in force when this appeal was lodged, are substantially similar to the Rules currently in force in relation to the institution of appeals. I will quote from the 1980 Rules, Rule 3(1)(c):

"(1) Every appeal to the Appeal Tribunal shall be instituted by serving on the Tribunal the following documents:

...

(c) in the case of an appeal from an industrial tribunal, a copy of the full written reasons for the decision or order of that tribunal."

It is almost invariably the case that the appeals we hear are on full reasons. The practice is accurately stated in Harvey on Industrial Relations and Employment Law, Vol. 4, paragraph 1442. It is stated, referring to the Rule which requires the sending in of full reasons when an appeal is instituted that the Employment Appeal Tribunal:

"... may, by virtue of its general power to waive the rules ... dispense with the need for the tribunal's extended reasons, although the circumstances in which it will be appropriate to do so are likely to be few (see William Hill Organisation Ltd v Gavas [1990] IRLR 488, CA) [and to a more recent decision which illustrates the circumstances in which an appeal may be heard on summary reasons] Wolesley Centres Ltd v Simmons [1994] ICR 503. There the EAT allowed an appeal to proceed despite the absence of extended reasons because the summary reasons were `in essence quite full'..."

What was said in the William Hill Organisation case is that, if the Appeal Tribunal comes to the conclusion that, in the absence of full reasons, it is quite impossible to adjudicate on the matters urged by way of appeal, then the Appeal Tribunal should refuse to hear the appeal. That is the conclusion we have reached in this case.

In our view, it is impossible to adjudicate on the criticisms raised against this decision on an appeal, for this reason: we do not have the detailed reasoning by which the Tribunal reached the conclusions, stated in summary form in their decision. It is quite clear, comparing all the detailed points made on fact and law in the written submission, that many of these points would be quite impossible to elaborate on behalf of the Appellant or to be responded to on behalf of the Respondent in the absence of full reasons. The reason why we dismiss this appeal is that it is in the absence of full reasons, impossible for a Tribunal to conduct a full or fair hearing of the appeal.

For those reasons, the appeal is dismissed.