United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON


 


JUDGE J HULL QC: This is an appeal to us by Mr Shaun Phillip Ventham against a decision of the Industrial Tribunal sitting at London (South), under the chairmanship of Mrs Mason with two industrial members. That Tribunal sat on 26 February 1997.

Mr Ventham had complained to the Industrial Tribunal that he had been constructively dismissed. There was a breach of his contract of employment and he also put down "victimisation", although, as he tells us, he did not fully understand what that expression means. His complaint was made on 27 January 1995.

Mr Ventham had been employed from April 1972, a long time ago, by the William Hill Organisation Ltd and their predecessors. He was manager of various licensed betting shops, a highly competitive activity, both from the point of view of the employers and, indeed, the managers and we have no doubt that great demands are placed on the managers, both with regard to improving business, and controlling the business and complying with the law, because the law makes many demands on the managers of such shops.

Mr Ventham was improving his position by obtaining a graduate qualification, as he hoped, studying at Birkbeck College and the employers had been sponsoring him.

Among his complaints were that he was moved, in ways which prejudiced him, from shop to shop; that he suffered loss of earnings; that he was in effect demoted; and one of the worst things of which he complained was that the employers decided not to continue to sponsor his university career. He said there were many matters of complaint and that when he resigned, as he did on 5 October 1994, giving one month's notice, in effect he was forced to do so. He was accepting breaches of contract by the employers as terminating the contract, as he was entitled to do. He was entitled to say that he had been dismissed.

So the matter came in front of the Industrial Tribunal. At some stage (and we are not quite clear in what order these events occurred) there was a preliminary hearing, a review, to see whether there were any reasonable prospects of success for Mr Ventham's case; in regard to part at any rate of his case, if not all of it. The Chairman who held that review concluded that it had no reasonable prospects of success and ordered Mr Ventham to pay £150 as, in effect, security for costs. That was of course a preliminary view; it was not based on a trial of the case. But that was the view of the Chairman. Just looking at it on paper, there were no reasonable prospects of success. Either before or after that, probably after, the case did come in front of an Industrial Tribunal, chaired by another Chairman, and Mr Ventham tells us that he gave evidence for two days and was cross-examined; and at the end of that, the employers through their Counsel submitted that there was no case to answer; that nothing that had been said could be accepted by the Tribunal as establishing that the complaints were made out. We are told that the Tribunal rejected that submission and said that the employers must, if they wished, call evidence, but they did not uphold the submission that there was no case to answer.

Unhappily, before the case continued, the Chairman was taken ill, and despite a long wait in the hope that he would recover sufficiently for the hearing to continue, he did not. So a new trial was ordered, as it had to be, and the matter came afresh in front of the Industrial Tribunal chaired by Mrs Mason.

On this occasion both parties had learned by what had passed before. Mr Ventham had very sensibly reduced his evidence to writing and spent a morning reading it, in its concise form, to the Industrial Tribunal who no doubt listened to it and were assisted by the fact that it had been reduced to writing.

Counsel for the employers then proceeded to cross-examine, but only for an hour or so. Mr Ventham tells us that the points on which he had been cross-examined on before, where he had scored favourable points, as he puts it, were not asked by Counsel, who (so to speak) exploited the fact that he, too, had been present at the first hearing, or at any rate those who instructed him had, and knew how to conduct the case more advantageously.

There was then a false step by Mr Ventham or rather the absence of a step which he should have taken. He tells us there was a witness whom he called at the first hearing and (rashly assuming that that witness's evidence was not really required) he did not on this later occasion call that witness. That witness was going to say that she had heard certain matters highly favourable to Mr Ventham's case. After Mr Ventham's examination was concluded, Counsel for the Respondents submitted there was no case and that submission was upheld. The Industrial Tribunal's decision starts at page 4 and it is a decision of the entire Tribunal, although given, no doubt, through the mouth of its Chairman or drafted by its Chairman, but it is a decision of the whole Tribunal.

The Tribunal went through the facts. The facts, of course, are for the Tribunal and not for us. Having set out that Mr Ventham had made attempts to get his university sponsorship continued, but failed, they said that he had had an annual assessment and was moved, as a result of that annual assessment. Then, they say that he resigned in the circumstances. They say:

"The Originating Application was presented on 31 January 1995. It made no complaint of the September 1994 assessment. The first time that was mentioned as a ground of complaint was in the particulars of 5 December 1995 when Mr Ventham had received advice from the solicitor. The particulars complained that the Company had 'deliberately destroyed Mr Ventham's work record'. In giving evidence about this Mr Ventham has been equivocal. On the evidence we find that Mr Ventham did not leave because of the September assessment and reject any of his evidence which suggests to the contrary."

So there they were exercising the undoubted right of the Tribunal to say what evidence they accepted and what they rejected. Mr Ventham complains of that. He says that on a true reading of his IT1 (his application) he was referring to these matters and he complains that the Tribunal took a different view. It was up to the Tribunal to say what view they took about that. We cannot criticise them for taking the view which they did.

They then looked shortly at the case for the Company and then, at greater length, at the case for Mr Ventham) (page 8 paragraph 14).

"14. The case for Mr Ventham. The law as outlined by the Company was accepted. However, there had been a cumulative breach of the implied term that neither party would act so as to damage the relationship of trust and confidence which should exist between them. The Company's behaviour had amounted to such a breach. The last straw had been the last assessment and Mr Ventham had left in response to that. The withdrawal of support for the University Course was one of the sequence of events relied on but also amounted to free standing breach of the contract of employment. The Tribunal should have heard evidence from Mr Lewsey."

Then they set out the law quite rightly (section 95 of the Employment Rights Act 1996) and the case of Western Excavating (EEC) Ltd v Sharpe [1978] QB 761, CA. They say as follows:

"16. The Tribunal has considered Mr Ventham's evidence very carefully but we consider that there was no dismissal in this case. Mr Ventham said in evidence that, had it not been for the assessment episode, he would not have regarded the other matters in themselves as serious enough to entitle him to leave. There was a long time between those events and the last assessment. It is absolutely clear to the Tribunal (and it is not disputed) that the making of an assessment was within the contract and it was proper for Mr Ventham's Line Manager to be carrying out that task in the difficult business of managing his Area. We do not accept that it was a breach of contract either free standing or part of a series of minor breaches. Furthermore, the Tribunal is not able to accept Mr Ventham's evidence that he left because of that assessment. We base that finding on the undoubted fact that there is no mention of the assessment in the letter of resignation and it is not referred to in the Originating Application, and that the first which is heard of it is when it is spelt out in the letter of 15 December 1995 by way of particulars by Mr Ventham's legal representatives. In this case we are not satisfied that there was a constructive dismissal within section 95 of the Employment Rights Act 1996. That being so Mr Ventham's complaint of unfair dismissal is dismissed."

Because, of course, without a dismissal there can be no unfair dismissal. "He resigned" said the Tribunal.

Now Mr Ventham appeals to us and he relies on grounds which are put very shortly in his application for leave to amend his Notice of Appeal. We granted leave. He says, "The Appellant is appealing on two grounds. First, that the Tribunal erred in law in saying that there was no case to answer, after only hearing the evidence of the Appellant".

Now it is perfectly true, dealing with that ground first, that this Tribunal has often said that such a practice is not to be encouraged at Industrial Tribunals. It is, of course, an ordinary practice in the Civil and Criminal Courts, if one party is bold enough to say that the other has, in fact, adduced no evidence on which the court can possibly conclude in that party's favour, then he is entitled to say so at (if I can use the common expression) "half time", when one side is finished and the other side is yet to begin. It is a dangerous thing to do in litigation because the party is normally then put to his election and is told, "Well if you are going to make that submission, you are not going to be allowed to call any evidence". That is not the practice in the Industrial Tribunal.

The authorities are dealt with in Harvey on Industrial Relations, volume 4, section T, at paragraph 892 onwards. There are plenty of cases (as I say) in which our Tribunal has suggested that it should be an exceptional course to take. But as Slynn J, as he then was, later of course Lord Slynn, said:

"... the EAT has never said that an industrial tribunal cannot stop a hearing at the end of the case of the party whose evidence and submissions come first:

"it clearly is a power which must be exercised with caution, but if the tribunal is satisfied that the party upon whom the onus lies and who goes first has clearly failed either in law or in fact to establish what he set out to establish, then it seems to us that the tribunal is entitled to decide the case at that stage. It should however always bear in mind what was said by this Appeal Tribunal in Ridley v GEC Machines Ltd and in the other cases which also deal with the point."

Now we ask ourselves, is there any error of law shown by the fact that this Tribunal, doing what on any view is an exceptional thing, said "We have heard enough. We are prepared to decide the case now. We think there is no case to answer here"? We think they were entitled to say that. It is a case where, in effect, they felt unable to accept the essential parts of Mr Ventham's evidence for reasons which they gave. They were not in any way convinced. It can be said, in support of that, that a Chairman (admittedly looking at the case on paper) took a similar view when he ordered the sum of £150 to be paid in on account of costs.

This was an experienced Tribunal, an experienced Chairman, and having thought about it as carefully as we can, we have come to the conclusion that it is a case in which they were fully entitled to say, the burden being on Mr Ventham, that he had not satisfied them by his own case that he was, in effect, dismissed rather than resigning. So they dismissed the case at half-time and we think they were entitled to do so, and Mr Ventham has not shown us that they were making an error of law in doing so.

Secondly, Mr Ventham says that this was a decision taken by the Tribunal which was based on a perverse view of the evidence presented to them. We look at his skeleton argument, for which we are very grateful. He makes a number of points. He refers to cases. He argues his point that, in truth, he had referred to this point about his assessment being part of the cause of his resignation when he put in his application. That was a matter for the Tribunal. He says the Tribunal was presented with evidence that clearly demonstrated that the Appellant's case was not hopeless or frivolous. It is not suggested that it was frivolous.

What the Tribunal were presented with was evidence which, having heard Mr Ventham and having heard him cross-examined, they felt they could not accept on the vital points. What more was there to say? There is nothing about which we are told to suggest that the Tribunal was labouring under some delusion or other, or that they were treating the case in a way which the law does not allow them to treat it, for example, by refusing to listen properly to the evidence or something of that sort. Nothing like that is suggested and we can find nothing in their decision to show that it is perverse. It is, on the face of it, an entirely rational decision. If the Industrial Tribunal says the case is not supported by evidence, the point of the decision is that, having heard the evidence, they do not feel able to accept it. So it cannot be perverse in that way. It must be said that the Tribunal acted irrationally. We find nothing to support that. In those circumstances, we have to say that this appeal cannot succeed. It is not arguable because there is no fairly arguable point of law in it and it must therefore fail at this stage and be dismissed at this stage and we so order. That is the decision of us all.