United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 569_95_2301

Appeal No. EAT/569/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 January 1996

HIS HONOUR JUDGE J ALTMAN

MR R TODD

MRS R A VICKERS

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MR J LEVERMORE          APPELLANT

T S E (CATERING EQUIPMENT) LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant IN PERSON


 


JUDGE ALTMAN: This matter comes before us by way of preliminary hearing on the appeal of the Applicant from the decision of the Industrial Tribunal sitting at London (South) on 10 February 1995 in which the Applicant's complaint of unfair dismissal was rejected on the grounds that his argument that there was a constructive dismissal failed, on the ground that there was no fundamental breach of contract which induced the Applicant to leave.

The appeal comes by way of preliminary hearing to give the Applicant the opportunity to show cause as what point of law could be raised to justify this matter being considered on appeal. It is well known to those practising in these cases, but not well known to the Applicant, who is unrepresented, that in order for the decision of the Industrial Tribunal to be criticised there has to be an argument that the Tribunal was in error in finding facts which were not open to be found on that evidence, or was in error on the principles of law which were applied or thirdly, took a view of the evidence in their findings of fact which no reasonable Tribunal, properly directing itself, could reasonably have come to. The emotive term "perverse" is used very often nowadays.

We have listened very carefully to Mr Levermore. His case was that he had been employed as a welder by the Respondents and had done mild steel welding, cutting and bending. He did not have a lot of experience in welding stainless steel which is, so it seems, the high grade work. Having been made redundant he was taken back into employment some four days before his dismissal and he was taken back to do welding and cutting and bending believing that he would carry on doing the same work as before. During his earlier employment he had also done some stainless steel welding on a single occasion when, so far as he knew, his work was to a high standard when welding Kelvins and he had always been anxious to advance to that sort of work being no doubt, as we understand, highly regarded and a conscientious employee.

His case was that having been taken back to do that work there was no mild steel welding to be done and he ended up just doing that part of his work which had been bending and on top of that he did it not only if there was any work for himself, but he also was directed to do the work for the other welders. So he ended up doing the work which led him to feel (if I can use a loose term) that he was being treated as the dogsbody doing the rotten work for the other two welders, who were admittedly older and more experienced than he, so that they could have (if I can change the metaphor) "the cherries from on top of the cake". The Applicant, after four days raised this matter in the perhaps rough and ready sort of atmosphere that one would attribute to this sort of working environment, with his superiors and got a rather dusty answer. So he walked out.

That briefly is the sequence of events. This was a well established organisation that had a grievance procedure but the Applicant's argument was that there was no point in using a grievance procedure because he had already tried and had a "brush-off" on earlier occasions and he would just be going through the motions and get nowhere on this occasion.

The unusual feature of this case is that at the end of the Applicant's case the Chairman of the Tribunal took it upon himself to invite the Respondents to consider calling no further evidence and invited both parties' representatives to make submissions. Not surprisingly, Mr Cato on behalf of the Applicant said he would like to have an opportunity to cross-examine the Respondents' witnesses but the Respondents determined, no doubt thinking that a nod was as good as a wink, not to proceed to call any further evidence.

So the Tribunal was left, as a result of the Chairman's own intervention, to decide the case solely on the evidence of the Applicant and they did so between paragraphs 14 and 22. They set out the arguments on behalf of the Applicant pointing out the history of the matter in a way which the Applicant today has accepted was a way of setting it out. They set out the arguments of the Respondents explaining their reasons for not giving him the work and they then came to the conclusions which they reached. And they came to the conclusion in paragraph 20:

"20. ... Following his re-employment on 10 March 1994, the Applicant continued to perform the same duties as previously, including mild steel welding, bending and cutting. ..."

They then go on to rehearse the facts to which I have already referred and to state in the following paragraph: "On 22 March 1994, when there was no more mild steel welding to do ..."

That led the Applicant to be concerned that all he was left doing was cutting and bending and he wanted to weld Kelvins himself. He wanted a chance to prove himself at that level because he knew and he knew the Respondents knew that he was good at it. But the Industrial Tribunal then found that the work he was in fact doing, though perhaps not to the Applicant's liking, was work within his contract of employment and he had only completed four full days after re-employment and had not used the grievance procedure.

So it is quite clear that the Tribunal there set themselves the task of identifying the terms of the contract. They looked at the problems that the Applicant faced and came to the conclusion that the problems that he complained of (and they seemed largely to have accepted what he said about it) were not actually problems which amounted to a serious or a fundamental breach of the contract of employment.

In cases where it is the employee who leaves and it is not the employer that dismisses, the employee then has the burden of saying in effect, "well although it is me that has walked out, I did it not only because of the conduct of my employers, but because their conduct was a fundamental breach of our lawful contract". As the Tribunal found that he was being asked to do work which was within the terms of his contract, they were driven in effect to conclude (it seems to us) that however unhappy a working environment it was for him, it was not outside his contract of employment and for that reason he could not show that there had been a fundamental breach of contract. We have rather paraphrased in the last few sentences our understanding of what the Tribunal were saying.

In those circumstances, we are very indebted to Mr Levermore for the helpful way in which he has explained his case and his grievance but we are driven to the conclusion that however sympathetic we are with his feeling that he was being put into rather demeaning work and was not being given the chance to do the more interesting part of his employment, the decision of the Tribunal does not provide the Applicant with any argument on a point of law which would justify the matter going to appeal.

However, before parting from this case we would wish to return to the fact that at the initiative of the Chairman the Respondents called no evidence. The Chairman, quite rightly, referred to the authorities in law which entitled him to take that course and it is quite right that in law he was so entitled. But this is an Industrial Tribunal where parties, even though represented, come with their grievances, sometimes not completely well informed, sometimes because of an instinctive feeling that something is wrong without necessarily being able to use all the words that explain it, and a Tribunal has to do its best to get the full picture. Whilst it is possible in exceptional cases for the Tribunal to get the full picture from hearing one side only, we cannot imagine many cases in which a Tribunal would not say to itself "before we can reach a proper decision in this case with the parties doing their best to explain what their views are, we really need to hear both sides so that we can get a proper picture". There is a burden upon Chairmen of Industrial Tribunals which goes beyond Judges in other courts, to take something of an investigative role in cases of this kind and it must be very rare indeed when that function can be fulfilled without hearing both sides. This matter was considered many years ago by Phillips J when he was President of the Employment Appeal Tribunal in the case of Ridley v GEC Machines Ltd [1978] 13 ITR 195. He said this:

"There may be cases put forward which are so obviously hopeless that it would be a complete waste of time to call upon the Respondents to call evidence, and thus prolong the proceedings for what may be a long time at very considerable expense. So, yes, there may be exceptional cases but, ordinarily, at all events, it is better to hear what everybody has to say."

With the greatest of respect, this Tribunal is unanimously of the view and the lay members have discussed this aspect with me, that that extract encapsulates the spirit as well as the substance of proceedings before Industrial Tribunals. It is quite clear, from hearing the Applicant in this case, that he has an understandable sense of grievance that this case was stopped halfway through, as he would say, when he was expecting the other side to have to give evidence also.

It is not a case, even if it had run its full length, that would have taken very long. It is not a case which was, we suspect, so obviously hopeless, that it was a complete waste of time to call upon evidence because after all, a reading of the decision shows that there were facts that the Tribunal did have to address. So in conclusion, we thought it would be appropriate to make some general observations about the way in which the Respondents were invited to call no evidence in this case and to say that that is a matter for very careful consideration in any case before the Industrial Tribunal.

Having said that however, we are driven to the conclusion that no point of law arises on this appeal and we must dismiss the appeal.