Title: Appeal No.
Author: Ola Odunlam
Last saved by: vmartzou
Company: BAILLI

Appeal No.	 EAT/748/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 October 1998

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR K M HACK JP
MR S M SPRINGER MBE

MISS L P HASTINGS	APPELLANT

MIDLAND BANK PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant

MR W HASTINGS
(Father)

	MR JUSTICE MORISON (PRESIDENT):     The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which Mrs Riste, but now known as Miss Hastings, wishes to make against a decision of an Industrial Tribunal held at Stratford on five days, between 30 October 1997 and 24 March 1998.  The unanimous decision of the Industrial Tribunal was that the complaint of unlawful constructive dismissal lodged against Midland Bank Plc, should be dismissed.

	The Applicant has been represented by her father at this hearing.  The basis of the Tribunal’s decision is set out, very fully, in the well-structured decision containing their extended reasons, which was sent to the parties on 7 April 1998.  Essentially, the Applicant was saying that the Bank committed a series of errors which undermined her trust and confidence to such an extent that, taken collectively, she was entitled to act by leaving.  The employers were maintaining that they had not broken any term of her contract, let alone the implied term of trust and confidence and the Tribunal had to adjudicate between those two positions.  They found as a fact that, on 19 August 1995 the Applicant, who had been providing sick notes for the previous day and then subsequently for the following three working days, had been observed at a pub by one of her work colleagues, who was also a friend.  The colleague brought that to the Bank’s attention.  She had had some problems with absences in the past.  

	There was then trouble (to put it neutrally) between the Applicant and the good friend at work and a complaint was made by the latter against the Applicant and, after it had been considered by the Bank, they decided that the appropriate course would be to suspend the Applicant in accordance with their disciplinary procedures, so that they could investigate the trouble between the Applicant and this other person.

	There was then an investigatory period followed by a disciplinary hearing on 25 October 1995.  Originally the Bank had been of the view that there was a prima facie case of very serious misconduct, which would justify summary dismissal, but during the course of the disciplinary proceedings came to the conclusion that this was not a “Stage 2” matter with that consequence, but rather a “Stage 1” matter which could give rise to a warning.

	The person who conducted the hearing, in the Tribunal’s opinion, with fairness and clarity, concluded that the Applicant should be given a final warning on 6 November 1995, but she resigned on 10 November 1995.  The way the case was advanced, on her behalf at the Tribunal, was that the decision of the person who conducted the disciplinary hearing was unsustainable on the facts.  Secondly, that she believed that she had been treated as a criminal on 29 August, when the suspension was effected and that the complaint made against her had been mishandled and that really, she was being victimised by the Bank or by an official within the Bank.

	The Tribunal’s conclusions are clear.  They acquit the decision-maker of any fault in the way in which he handled the decision that she should be given a final written warning.  They say that he conducted the hearing with fairness and clarity and furthermore, they noted that the Respondent did not receive any official complaint from the Applicant during her employment.

	As to the suspension, the Tribunal said that the two people involved took all reasonable steps to ensure that the matter was conducted with due decorum and respect, in order to minimise her perceived humiliation and that, contrary to her assertion, she was not frog-marched out of the premises, nor was she exposed to deliberate ridicule.

	In relation to the allegation that Miss Quilter’s complaint (that is, the friend’s complaint) was mishandled, the Tribunal were satisfied that the Bank had acted entirely in accordance with its own procedures.

	Finally, in relation to the allegation of victimisation, they relied on the fact that there had been no official complaint, and no grievance raised by her during the course of her employment, that she was being victimised.

	The Tribunal, having directed itself as to the legal test, found:

“That the Applicant had signally failed to establish a case of unfair constructive dismissal.  As this case has proceeded and developed, it has become apparent beyond peradventure that the Respondent has not breached the Applicant’s contract of employment at all, but rather has attempted upon repeated occasions to ensure that Miss Hastings did not break it.  Upon all material occasions the Respondent acted as a reasonable employer and did not subject Miss Hastings to any unfair or sinister treatment.  Therefore this Originating Application is dismissed.”

	At this appeal Mr Hastings essentially, as it seemed to us with respect, wished to reopen the facts and reargue the way the Tribunal should have reached its conclusions.  We encouraged him, during the course of his submissions, to identify for us any error of law.  What he was reduced to saying, as it seems to us, was that the findings of the Tribunal in relation to various matters were perverse, in the sense that they were wholly and completely unreasonable.  He started with the decision that she should be suspended.  He said that that was a decision which was wholly unreasonable.  He said that the way it was done was completely unreasonable.  

	It seems to us that neither of those points is open to him, having regard to the express findings of fact made by the Industrial Tribunal on that issue.  He then complains that, at the disciplinary proceedings there was a video recording of an event which might have shown that the Applicant and the complainant against her, had been amicable which would cast a slightly different light on the seriousness of the incident.  Again, that was dealt with by the Industrial Tribunal.  

	The Tribunal say this, at paragraph 9:

“(xx)  The video of the banking hall was viewed by all parties on 31 October 1995 at the request of the Applicant.
(xxi)  That video was so indistinct that it rendered it valueless in evidential terms.  Mr Tatham [the person who took the decision to impose a warning] ignored it for the purpose of this decision.  The Tribunal who has also viewed that video and respectfully agrees with the decision that Mr Tatham took.”

	It seems to us, in those circumstances, that there is no error of law in the point made by Mr Hastings on his daughter’s behalf.  Then he says that the Industrial Tribunal’s conclusion that she was not subjected to any unfair or sinister treatment and that she was being victimised, was unsustainable.  The basis for his contention is that there was a letter from her doctor, which the Bank had access to, which diagnosed the Applicant’s condition and referred to the fact that she had a difficult manager to work with and that she was being victimised (her feelings) and that what the doctor had written was “absences are less to do with medical conditions.  More to do with voluntary withdrawal from work”.

	So it was said by Mr Hastings that, having received that information, no reasonable employer could have decided to do nothing about it.  We respectfully disagree.  The Tribunal were entitled, on the evidence before them, to reject the complaint that she was being victimised and to stress the fact, as they did, that no official complaint was ever made by her, nor any grievance raised by her against her manager, which she would have done having regard to her character had she believed that there was a case of victimisation.  This was a remark made in a medical report.  Mr Hastings said that it should have been investigated.  It seems to us that an equally tenable view would have been that it was best left where it lay.  

	On that basis, it seems to us that he cannot sustain his argument that she was being victimised, and that the Tribunal could not have otherwise concluded.  He pointed out, which is correct, that breaches of contract do not have to be intended and that one breach of contract can be sufficiently serious.  Again, there is no evidence that the Tribunal have, in any way, misdirected themselves in law.  On the contrary, they have referred to the relevant authorities.

	It seems to us in all the circumstances, therefore, that this was a very clear example of what too frequently happens in the Employment Appeal Tribunal, of an Appellant wishing to reopen and reargue the facts of the case.

	We only have jurisdiction to deal with points of law.  At this preliminary hearing Mr Hastings has conspicuously failed to identify any arguable point of law. Accordingly, we do not have jurisdiction to deal with this appeal and his appeal will be dismissed.

© Copyright 1998

EAT/748/98

EAT/748/98
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