United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR WARD (Husband of Appellant)


 


JUDGE LEVY: Mrs Sandra Anne Ward commenced employment with Potters Ballotini Ltd in July 1979 as an Accountant's Assistant. She left that employment in October 1995. She complained that there was constructive dismissal and that there had been no written statement of employment particulars. She commenced proceedings in an Industrial Tribunal, received by the Tribunal on 6 October 1995. The Notice of Appearance by the company was received on 2 November 1995. They denied her allegations. There was a hearing before an Industrial Tribunal at Leeds on 10 and 11 June 1996. Mr Ward, the husband of Mrs Ward, represented her then as he has today.

There were difficulties of many sorts before the Tribunal. These included the fact that Mrs Ward did not attend the hearing and her evidence was given by an Affidavit she had sworn which was not tested by cross-examination. There was an application by the Respondents for one of their witnesses' evidence to be given by Affidavit, which Mr Ward opposed. A majority of the Tribunal permitted that Affidavit evidence to be admitted. There were other difficulties because Mrs Ward had been given no contract of employment and therefore, as the Tribunal recognised, that led to all sorts of problems in deciding what was to happen on grievance procedures. There were other difficulties because Mrs Ward's job had changed over the years and Mr Ward alleged that each change amounted to a breach of the contract by the employer, and that it could not be asserted the changes were covered. The majority of the Tribunal held against those submissions.

Various issues were obviously the subject of debate during the hearing before the Tribunal, but at the end of the day, the Tribunal, having allowed Mr Ward on his wife's behalf to amend her claim to maintain claims under Section 146 and 152 under the Trade Union and Labour Relations (Consolidation) Act 1992, to allege action short of dismissal on grounds related to union membership or activities, and dismissal on grounds related to union membership's activities, dismissed those claims and dismissed her claim that she was unfairly dismissed and found that her complaint that she had not been provided with written particulars of employment, was well-founded but that this failure did not prejudice Mrs Ward.

From that decision Mrs Ward appealed by Notice dated 6 September 1996; the decision having been promulgated on the 5 August 1996. Shortly before the Notice of Appeal had been submitted, Mrs Ward, by her husband, applied for a review dated 15 August 1996. The review decision was promulgated on 2 September 1996. It is a full document really in terms saying that what Mr Ward on behalf of his wife was seeking, was a second bite of the cherry, because his wife had not been present on the first occasion. The fact that evidence which came as a surprise to him was given by the Respondents, was not the subject of challenge by Mr Ward.

In both decisions there are extensive and extended reasons given as to why the majority of the Tribunal came to the conclusions which it did, and also as to why the minority came to its conclusions. In an address before us, Mr Ward has patiently and carefully put his points, but at the end of the day we have come to the conclusion that what he is seeking to do is to re-argue matters which were argued before, when there are no proper grounds put forward for so doing.

First of all he complains about the Affidavit evidence which was admitted. That was a matter of discretion where the Tribunal, as they set out in their review, looked at matters and came to a decision which it is impossible for us to say was wrong. He complains that the Tribunal wrongly approached the variations of the contract which they found. Again, we look at the matter in the way it was dealt with in the Extended Reasons and in our judgment what is complained of is findings of fact, for which there was material in front of the Tribunal. He complains that Contract Law has been mis-applied, but we suspect that Mr Ward has not a full appreciation of the law of waiver and the position seems to be that, as we understand it from the findings of fact, and as we understand the Tribunal was entitled to find, that Mrs Ward had in fact agreed to changes in what she was to do in an office over the years, and indeed it would be surprising if her duties over the period were not changed over the years. Mr Ward points to, according to him, certain schedules which were before the Tribunal, from which they made calculations which he says were wrong. The Tribunal said they examined the schedules and the majority came to a conclusion which on the facts of the document they were able to come to.

Right the way through what Mr Ward is complaining about on behalf of his wife is that there were findings of fact which the Tribunal wrongly made. We cannot see that that can be sustained on findings in the Extended Reasons both on the principal judgment and in the review decision. As to the errors of law alleged by Mr Ward, we can find no error on which an appeal can properly be granted. We have explained to Mr Ward that an appeal is only allowed to proceed to a full hearing if any one of us sees an arguable point which may succeed. Despite his endeavours, we have found no arguable point. We therefore dismiss the appeal at this stage.