United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M ROBERTS (in person)
For the Respondents	MRS REBECCA HERBERT (of Counsel) Messrs Murray Lawrence & Partners 1 Whittington Avenue London EC3 1LE


 


JUDGE D M LEVY QC: On 24 January 1994 Mr Michael Roberts commenced employment with Murray Lawrence and Partners at their offices at Eclipse Motor Policies, third floor, 48 Broadway, Peterborough. He was a branch claims controller for Eclipse Motor Policies, which was a motor insurance syndicate managed by Murray Lawrence & Partners, "the Respondent".

He claims constructive dismissal took place on 10 May 1996. He made an originating application arising from that alleged dismissal on 31 July. The notice of appearance by the Respondent was entered on 2 September 1996. A hearing took place of Mr Roberts' complaint on 20 December 1996.

Late on during the hearing of this appeal we were told by Mrs Herbert who, under her maiden name, appeared as Counsel for the Respondent below, that an application had been made by the Respondent for an adjournment of the hearing shortly before the hearing took place and she has furnished us with a copy of the letters the Respondent wrote to the Industrial Tribunal on 5 December, stating that:

"The above application is due to be heard on 20 December. In this respect we would like to apply for a postponement of the hearing date due to the unavailability of our witnesses who are crucial to defend this action" [Underlining added]

On 9 December the Tribunal replied:

"Further to your letter of 5 December requesting postponement of the hearing a Chairman has instructed that I write to ask for the details of the witness who is unavailable" [Underlining added].

The Respondent's letter mentioned "witnesses"; the reply unexplainably mentions "witness".

On 11 December the Respondent replies:

"We hope to have as witnesses Miss Diana King, head of human resources, George Johnson and Gerry George to support our response to this action. Unfortunately, Miss King is not available on 20 December and as both Mr Johnson and Mr George have now left the employ of the company we are unable to ensure that they will attend on the 20th as we have not been able to make any contact with them. Consequently, we would require more time in order to fully defend this action."

On 12 December the Regional Secretary to the Tribunals replied that:

"A Chairman of the Tribunals has refused your request for a postponement on the grounds that the reasons given are not sufficient reasons for the Respondent not to have arranged the attendance of the witness."

"Witness" in the singular was again used, although three witnesses were mentioned by the Respondent.

None of this correspondence was copied to Mr Roberts. When he attended at the hearing on Friday, 20 December, he fully expected that there were going to be witnesses called by the Respondent for whom he had prepared lists of questions in cross examination. He only learnt that there were to be no witnesses on the day of the hearing. Acting in person, he was completely taken by surprise. It is obviously a matter for the Tribunal to decide whether or not to grant an adjournment. We do not know when the Respondents and the Applicant were first advised of 20 December as the date fixed for the hearing, so we cannot say whether or not an application for an adjournment could or should have been made more expeditiously than it was. However, in the event, it is a great pity that the matter was not heard on evidence called by both parties. At the hearing after he had given evidence, Mr Roberts was cross-examined at some length by Mrs Herbert. The Tribunal appears to have done nothing to help him, a litigant in person, in the course of cross-examination or indeed by asking questions which could and indeed would have been put by an advocate in re-examining. Indeed, when certain matters were put to him on a clear mis-reading of documents, Mr Roberts was given no assistance by the Tribunal. After cross-examination, the Tribunal asked Mr Roberts a few questions. After Mr Roberts' evidence was complete, the Tribunal heard submissions.

The Tribunal then retired to consider its decision. Summary reasons were dispatched to the parties on 22 January 1997, extended reasons were sent on 4 July 1997. When he learnt that he had lost, Mr Roberts immediately entered a notice of appeal on 9 July 1997. Because in his notice of appeal he made complaints of what had happened at the hearing, he was required to swear an affidavit and did so on 1 August 1997. The Chairman's comments were received by letter 28 August 1997. On 10 September 1997 Mr Roberts commented on those comments. The Respondent's answer to the appeal was dated 24 December 1997. Meantime at the preliminary hearing of the appeal on 3 December 1997, this Tribunal gave leave to appeal limited to this ground:

"I was not permitted to put to the Tribunal matters which challenged various points which had been made in the IT3 and the Tribunal relied upon those points when reaching their decision."

When we read Mr Roberts' complaint and the Respondent's IT3, it seems likely to us that it was because trust and confidence had broken down between him and the Respondent that Mr Roberts wrote a letter of resignation to the Respondent on 12 April 1996, a letter very cursorily dealt with in paragraph 10 of the extended reasons of the Tribunal.

In paragraph 2 of the Extended Reasons, there is an inaccurate precis of the section of the Employment Rights Act 1996. The paragraph:

"He [Mr Roberts] makes a complaint of constructive dismissal having [been] employed from 24 January 1994 until 10 May 1996. Section 95(1)(c) of the Employment Rights Act 1996 states that an employee is dismissed by his employer if the employee terminates the contract under which he is employed with or without notice in circumstances in which is entitled to terminate without notice by reason of the employers conduct."

The precis contains 3 errors:

(i) brackets are not included in "with or without notice"

(ii) between "which" and "is entitled" the word "he" is omitted

(iii) after "terminate" the word "it" is omitted.

Such errors may be unimportant to a lawyer who reads a judgment and can see slips have been made which he can correct but this document was promulgated to an Applicant in person who had lost his case. One of the first duties of a Tribunal is to make the loser understand why he has lost. Where the Tribunal, perhaps, in its haste to promulgate a decision timeously fails to make it comprehensible, we can understand that the loser may have reason to feel that he has not had a fair hearing.

Paragraph 9 of the findings commences:

"The Tribunal are unanimous in their view that the applicant had exceeded his authority and this was not the first instance of such behaviour."

We have asked Mrs Herbert to point us to the evidence which supported that very wide finding. She pointed us to some passages in the evidence, but they did not satisfy us that the Applicant had either exceeded his authority on the occasion to which reference was made or indeed earlier. The first letter in date in the documents produced to us is dated 3 May 1995. It is from the Respondent's personnel manager, Mrs Gledhill to Mr Roberts. It reads as follows:

"Dear Mike

DISCIPLINARY ACTION

I refer to the circumstances surrounding the termination of Sarah Dunlop-Hill's employment, and Gerry George's subsequent conversation with you regarding your authority to institute disciplinary procedures.

I am now writing to formally confirm Gerry's verbal instruction that all personnel matters must be referred to me in the first instance before disciplinary action is taken. [It goes on to give particular discussions.]

If I am on holiday, or otherwise unavailable, and an urgent personnel matter arises, you should contact Mary Allen ... Mary and/or her staff are always accessible to give advice. Indeed, should you wish an offer of employment letter to be despatched and I am not available, Mary will also arrange for this to be done."

This was interpreted by the Tribunal in its decision as an instruction to Mr Lawrence that he was not to employ staff. We find it difficult to find such a construction in that letter.

Mr Roberts commented on that letter on 4 May as follows:

"I return copy of your letter dated 3/5/95 signed as necessary.

There is nothing more that I can add to my note of the 12th April. I decided on a course of action which, unfortunately, rebounded upon me.

The document "Taking Disciplinary Action" which you have sent to me will serve as a useful reminder if disciplinary action becomes necessary in the future and I am, therefore, tempted to do my own thing again. I will ensure that the correct Murray Lawrence procedures are followed and that you are not similarly embarrassed by a contract out of the blue by a disgruntled employee." [Our underlining.]

His comments suggest that he understood the letter to be concerned not with the employment but with the disciplining of staff.

The next document in chronological order is a letter dated 11 March 1996, a letter of resignation from Mrs Shiny Suhale on the grounds of ill health. That lady appears to be referred to in the next document, which is a memorandum from Mr Roberts addressed to "Gerry", dated 27 March 1996. We know from other correspondence that the addressee is Mr Gerry George:

"I would refer to our telephone conversation of 2/3 weeks ago when you informed that I was being heavily criticised by [George] Johnstone for employing a girl from an ethnic origin, i.e. an Indian girl, and our subsequent conversation in your Office yesterday when you advised me that you had been instructed to personally undertake the recruitment and interviewing of her replacement. In view of that decision I would request a full written explanation as to why the decision has been taken and also specific details of the criticism being levelled at me.

In the past 9 months there have been two occasions when my authority has been seriously undermined. The first, as I am sure you do not need reminding, arose out of the complete fiasco with regard to the selective salary increases last July which not only seriously undermined my authority but resulted in tremendous damage to the morale of this Unit.

My authority is being seriously undermined once again and I have no doubt that it will come as no surprise to you when I state that I consider that my position has now become untenable as far as any long term future employment with the Syndicate is concerned. Whilst I am not in a position to resign at this point I will be taking the appropriate action in view of recent developments. Part of that action will include seeking alternative employment as soon as practicable.

As I have already stated, this letter will come as no surprise to you and having informed you yesterday that I was furious at the decision you can now take that as an understatement. I await an early response in terms of the written explanation and details of the criticism."

That letter, clearly a cri de coeur, is dealt with there in paragraphs 5(b) to (d) of the Extended Reasons whose findings were made:

"5.(b) His job title was branch claims controller, but he had some responsibility for staffing and was authorised to hire staff after obtaining authority from head office in each particular case. He was not authorised to dismiss staff. Any selection of staff by him was not final and the applicant was reminded that approval from head office was required with regard to personnel matters by aletter dated 3 May 1995. Nevertheless, in February 1996 he offered an administrative job to a candidate without obtaining prior approval and when he knew that the candidate did not have the necessary work permit at the time. He thus exceeded his authority.

(c) On 26 March the applicant attended a meeting at head office in Basingstoke and was told of his superior's concern over this appointment and that in future interviews for staff at Peterborough would be taken out of his hands.

(d) This infuriated the applicant and he determined to resign. He wrote a letter on 27 March demanding an explanation for this decision protesting that his position had been made untenable as his authority had been undermined and stated that he would be seeking alternative employment as soon as possible. He did not however resign at that time."

Paragraph (b) contains in our judgment an inexact summary of the letter of 3 May 1995. Though paragraph (d) summarises the letter of 27 March 1996, the Tribunal make no reference to the inner turmoil about his position in the company which Mr Roberts was experiencing, as is apparent from the letter.

Following that letter, a holding reply was sent to Mr Roberts on 1 April on behalf of Mr Gerry George. On 9 April Mr George wrote this to Mr Roberts:

"Thank you for your recent letter which has left me disappointed and saddened.

When we discussed this issue, it was unfortunately against a time constraint [again, more haste less speed] and perhaps we did not have sufficient time to discuss all the implications or your reactions. Obviously in the interim period, you have had the opportunity of reflecting upon the subject and have put forward your comments.

You have asked for a written explanation of the criticisms in relation to your employment of an employee of Indian origin. The problems that arose were employment issues, not connected to race and were the initial problems over the work permit and subsequent pregnancy issue.

You may have been the victim of circumstance but it has raised the question of overall control and in this respect I have been asked to exercise more control.

At our meeting, I had suggested that I take over the interviewing of all applicants but upon reflection I think this degree of control can be exercised by you carrying out the initial interview selection and myself interviewing the final candidate. This way, I hope, there will be no perceived loss of authority or your position undermined.

I am saddened by your suggestion that you are seeking alternative employment as your contribution to the Syndicate and assistance to myself are greatly valued. There has been no loss of confidence in you by any member of the Management Team nor is there any hidden agendas which you seem to have read into the situation.

There will be times when the direction or action that you may wish to adopt will not meet with approval. This happens to all Managers and should not be seen as any sort of failure or an undermining of their position.

I hope that given the time that has elapsed, you have had the opportunity of reconsidering your position and I firmly hope that you will continue with your employment with the Syndicate."

Mr Roberts replied to that letter on 12 April which commences:

"Dear George

Following upon my recent letter to Gerry dated 27th March, the content of which I understand that you are fully aware, and his response of the 9th instant, which I find both insulting and pathetic, I now tender my resignation.

My understanding is that I am contractually bound to give one month's notice which means that my last working day will be the 10th May 1996." [He then deals with his holiday entitlement and when his employment should end.]

That was the letter of resignation relied upon for Mr Roberts to support his claim for constructive dismissal.

The Tribunal, in its short extended reasons gives no or no sufficient consideration to the issue which clearly arose as whether this is a case of constructive dismissal because trust and confidence between an employee and his employers has broken down during the period his employment and whether the letter to which Mr Roberts responded was the final straw which led to his resignation. What the Tribunal says in its conclusion is this:

"9. The Tribunal are unanimous in their view that the applicant had exceeded his authority and this was not the first instance of such behaviour. The respondents initial reaction was to take recruitment and interviewing of a replacement out of the applicant's hands. The letter of 9 April tempered this decision, but formalised the accepted arrangement that approval of all appointments was reserved to head office. The applicant was still responsible for the selection and the preliminary interviews of all candidates and choosing the candidate for the final interview.

10. The applicant handed in his resignation on 12 April without any attempt to instigate the company grievance procedure. He adopted an entrenched position from 27 March.

11. His primary function as claims controller remained unaltered. It was not his major responsibility to recruit staff but it was part of his duties to manage the office at Peterborough and it was important that his authority not be undermined. The respondent had cause to criticise him and the suggestion by Mr George contained in his letter of 9 April in fact did no more than underline the existing policy that final approvement of all appointment lay outside the applicant's control."

We have seen and carefully considered the notes of evidence as well as the letter of 9 April. In our judgment Mr George's letter of 9 April could well have had to Mr Roberts' wider implications than those which the Industrial Tribunal draw. The reasons continue:

"The only change was that the candidate selected by the applicant would be subjected to a final interview by Mr George."

12. The burden of proof is on the applicant to establish on the balance of probabilities that the conduct of the respondent in the circumstances was such that the applicant was entitled to terminate his employment. The Tribunal are unanimous in their decision that the applicant is not discharged that burden and that there was no significant breach going to the root of the contract and that the applicant was not constructively dismissed."

In cross-examination, an attendance note of a witness not called was put to Mr Roberts. He denied the truth of statements contained in it.

The Extended Reasons give no or no sufficient weight to such an answer or similar answers to questions drawn from the statements of witnesses not called. Because of the interlocutory decision of an unnamed Chairman, no evidence could be called by the Respondent to challenge such answers. The replies given by Mr Roberts to the questions could well have led a Tribunal to draw the inference that the lack of trust and confidence between the parties led to Mr Robert's resignation, rather than that issue being decided on the construction of a letter which led the Industrial Tribunal to conclude that the Respondent had not repudiated its contract. Mr Roberts was not, of course, to know why the Respondents had not called evidence and, indeed, he had wanted the opportunity to cross examine witnesses when he expected to be called. In any event, the Tribunal should have given consideration to the unchallenged evidence of Mr Roberts.

We can understand why, in all the circumstances, Mr Roberts complains that the hearing was unfair. In all the circumstances, in our judgment the decision cannot be allowed to stand. The appeal must be allowed. There must be a new hearing before a differently constituted tribunal.

The result of a further hearing may be adverse to Mr Roberts, whether or not the Respondent calls evidence. We express no opinion.

In the course of her address to us we indicated to Mrs Herbert that we were minded to allow this appeal to the extent of ordering a fresh hearing, and as Mr Roberts was acting in person, we asked her if she objected to our construing the amended notice of appeal rather more widely than its particular terms might have permitted. She very properly agreed that we could do this.