United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1375_95_2105

Appeal No. EAT/1375/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21st May 1996

THE HONOURABLE MR JUSTICE BUTTERFIELD

LORD GLADWIN OF CLEE CBE JP

MISS C HOLROYD

---

VALOR HEATING LTD          APPELLANTS

MR J NELDER          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellants MR J BOWERS

(of Counsel)

Mr N Chronias

EEF

Broadway House

Tothill Street

London SW1H 9NQ

For the Respondent MR T RYAN

(of Counsel)

Messrs Maxwell Entwistle &

Byrne

Solicitors

37-39 Liverpool Road North

Maghull

Merseyside

L31 2HB


 


MR JUSTICE BUTTERFIELD: This interlocutory appeal is yet another step in a claim for compensation for unfair dismissal brought by Mr Nelder the respondent against his former employers Valor Heating Limited the appellants.

The pace of this litigation makes Jarndyce v Jarndyce look positively indecent in its haste.

The appellants are a company manufacturing gas appliances. The respondent worked for the appellants since he left school in 1945. His employment came to an end in March 1991 when he was 60 years of age. For the last twenty years of his employment he had been one of four service engineers employed by the appellants. He worked in that capacity in the North-West and North Wales region. In early 1991 a redundancy situation arose in the appellant company, including a need to make redundant one of the four service engineers. This need arose because of financial problems then being experienced by the employers caused by the recession.

The appellants selected the respondent. One of the reasons for his selection was his failure to pass a gas regulation course. He was informed of that failure on 1st March 1991, the same day on which he heard that his wife was suffering from incurable cancer. He was further informed that he was to be made redundant. On 4th March 1991 there was a meeting between Mr Daniels the appellants spares and services manager, Mr Holland the appellants personnel manager, and the respondent at which the respondent's redundancy discussed.

There is a dispute as to what was said at this meeting. The appellant's case is that the respondent accepted redundancy, the respondent's case is that he objected to it and was unhappy about the method used to select him.

There was a further meeting between the same three men in mid-March 1991. By that time one of the four service engineers whose area was South Wales and South-West region had resigned.

The respondent's case is that at this second meeting he was offered the choice of accepting redundancy or remaining in employment on condition he would cover the South Wales and South-West region. The respondent thought that this new post would not be satisfactory, and that even if he took it, he would not last long having failed to past the gas regulation course. Thus, it was argued on his behalf, he had no alternative but to choose redundancy.

The presentation of the choice was a breach of a fundamental implied term in his contract of employment, of mutual trust and understanding. He thus did not jump but was pushed. He had accordingly been constructively and unfairly dismissed.

As to this second meeting, the appellants case is that the redundancy which the respondent had agreed to accept in early March was withdrawn following the resignation of the service engineer for the South-West region. The respondent was offered the choice of redundancy or remaining in his old job. He volunteered to go, thus rejecting the offer to stay in his present post. He resigned and was not dismissed.

The respondent complained of unfair dismissal. His application was heard by the Industrial Tribunal sitting at Liverpool on 7th and 20th January 1992. The respondent gave evidence as did both Mr Daniels and Mr Holland.

In a detailed reserved decision, promulgated to the parties on 2nd March 1992, the Industrial Tribunal found that the respondent had been constructively dismissed. Compensation it appears was not then determined.

The appellants appealed to the Employment Appeal Tribunal against that decision. The appeal came before a division of this tribunal on 18th January 1994, Tudor Evan J. presiding. The appeal was allowed on the principle ground that whilst the Industrial Tribunal had set out in detail and at length the competing versions of the respondent and the appellants of the telephone call of 1st March 1991, and the two meetings later in March, the decision did not record its crucial finding of fact, but in the language used in its decision left the issue unresolved.

There were subsidiary grounds on which the appeal was also allowed, namely the failure of the Industrial Tribunal to express a finding as to whether the breach of contract was serious and whether the appropriate objective test was applied by the tribunal.

The matter was sent back to the same Industrial Tribunal to deal with four matters.:

" First, a finding must be made in clear terms, as between the evidence for the Appellant and the Respondent's evidence, as to what happened at the crucial mid-March meeting. Whose evidence does the Tribunal accept?

Secondly, when deciding whether there was a breach, the objective test must be applied.

Thirdly, if a breach is found then the Tribunal must decide, and state, whether the breach amounted to serious breach.

Finally, if the Industrial Tribunal find that there was a breach and there was a constructive dismissal they must find whether the dismissal was fair or unfair."

In the spring of 1994, there was some correspondence between the parties and the Industrial Tribunal on the desirability of convening an interlocutory hearing to clarify the conduct of the remitted hearing. The respondent, who was not legally aided, did not wish to incur yet further additional costs if possible.

A representative of the appellant employers wrote to the Regional Secretary in Liverpool to this effect:

"I have spoken to Mrs Carlin on the subject of the future conduct of this case. I expressed the view that, given the directions contained in the EAT decision, it will be necessary for evidence to be given again on certain aspects of the case, including the meeting held on 13th March 1991, and the resignation of Mr Leaver.

My request for an interlocutory hearing was to avoid any possibility that preparatory work be carried out by both parties, only to find that the tribunal intended to rely entirely on the original evidence.

In the circumstances, unless directed otherwise, it is my intention to bring evidence on those aspects of the case which I believe will enable the tribunal to answer the questions posed in the EAT decision."

A reply was received from the Office of the Industrial Tribunals to this effect:

"A Chairman of the Tribunals has instructed me to inform you that we note what you say and, in particular, the final paragraph of the letter which will, of course be copied and circulated to the applicant's Solicitors in the usual way. It seems proper to proceed on the basis suggested, and no other Directions are given."

That exchange of correspondence whilst it undoubtedly raised the expectation in the appellants minds that some evidence would be given again at the remitted hearing, did not in any way bind the Industrial Tribunal on the way in which it should deal with the matter when finally it was heard

The remitted hearing came before the Industrial Tribunal on 25th January 1995. The composition of the tribunal was identical to that which had heard the respondent's original application.

The appellant company invited the tribunal to hear further oral evidence from witnesses as to what was said in the crucial meeting in mid-March 1991, and two further witnesses who were to speak of peripheral matters as to the company's policy and their approach generally to the re-deployment of their staff. That application was opposed on behalf of the respondent.

The Industrial Tribunal reserved its decision, eventually refusing the application in written reasons promulgated to the parties 10 months later on 23rd November 1995.

The appellants now appeal against the Industrial Tribunal's refusal to permit them to call oral evidence at the remitted hearing.

They submit that the tribunal erred in law in refusing to construe the remission as requiring oral evidence to determine the matters in dispute and failing to direct itself that it was impossible to determine those matters without hearing further oral evidence. We do not accept those submissions.

The essential criticism of the original decision was that the tribunal had failed to express its findings of fact in its extended reasons. Such failure may have arisen because the tribunal, in its deliberations, did not consider the issues on which its findings were required, or alternatively, because it failed to express those findings in the words used in its written decision.

In our judgment there is nothing in the original decision to support the former contention. The decision sets out in extenso the competing recollections. It is overwhelmingly probable that the tribunal did consider and resolved the issues but failed to express them adequately.

There was nothing in the judgment of the Employment Appeal Tribunal requiring the Industrial Tribunal to hear further evidence. The case was not remitted for a re-hearing before a different tribunal, but for the Industrial Tribunal who heard the original case to answer specific questions addressed to it. How the Industrial Tribunal chose to approach that task was essentially a matter for the tribunal itself. Rule 9(1) of Rules of Procedure set out in the Industrial Tribunals (Constitutions and Rules of Procedure) Regulations 1993 provides as follows:

"9.-(1) ... The tribunal shall make such enquiries of person appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to that just handling of the proceedings."

The remitted issues were at least in part, questions of fact. How they were to be resolved was for the tribunal to determine within the wide discretion granted by the rules. It was not for the Employment Appeal Tribunal to tell an Industrial Tribunal how to conduct its affairs, provided the Industrial Tribunal exercises its discretion reasonably.

The disputed conversation took place in March 1991. The critical issue of fact was whether the respondent was offered his own job in the North-West or the job in the South-West vacated by the resigning service engineer. The respondent had submitted his originating application in June 1991 making it plain that his case was that he had been offered the job as service engineer in the south of England which he could not take because of his wife's ill-health. The appellants in their notice of appearance served in August 1991 made it equally plain that their case was that the respondent could remain in his present post in the North-West.

The Industrial Tribunal heard evidence from all immediately material witnesses in March 1992. For the purposes of the remitted hearing, the Chairman was prepared to make available his notes of the evidence given before him. The matter did not come afresh to the Industrial Tribunal in January 1995, it would have received a copy of the judgment of the Employment Appeal Tribunal in the Spring of 1994 and have been reminded of the facts at that time.

In our judgment, the Industrial Tribunal cannot be said to have acted unreasonably or perversely in deciding to determine the discrete questions addressed to it by the Employment Appeal Tribunal by hearing submissions only based on the original evidence.

Recollection of conversations which took place five years ago and are now being trampled over again and again by both the Industrial Tribunal and this tribunal could properly be regarded now as almost worthless.

It is further submitted that in considering the appellant's application, the Industrial Tribunal misdirected itself by having regard to the principles on which a tribunal considers an application to admit new evidence on a review hearing. Again, we do not agree. Part of the application before the Industrial Tribunal was precisely that, an application to admit evidence which had not be adduced at the original hearing. The requirement imposed upon the Industrial Tribunal by this tribunal was to find as between the evidence for the appellant and the respondent's evidence what happened at the crucial mid-March meeting. The question could not have been clearer, it was whose evidence does the tribunal accept? The question was not, please re-investigate all this and reconsider everything on a new hearing.

Once the Industrial Tribunal had decided, as it plainly did, that it was able to resolve the remitted the matters without hearing further evidence, it was proper to approach the application to adduce further evidence with the principles applicable to the admission of new evidence on a review hearing in mind. We discern no error of law in the Industrial Tribunal's approach to the matter. It is plain on the face of its decision that the Industrial Tribunal exercised its discretion judicially. The decision it reached was one which a reasonable tribunal properly directing itself could have reached. For those reasons this appeal is dismissed.

MR JUSTICE BUTTERFIELD: We are unanimously of the view that this appeal does not raise any matter of principle or significant matter of law. We are unanimously of the view that it was a wholly unnecessary appeal to bring and that it was doomed to failure from the outset. We consider that it should not have been brought, and in those circumstances we conclude that it was unreasonably brought and we propose to direct that the appellant should pay the costs of the respondent to be taxed if not agreed.