United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J BOUMPHREY (of Counsel) Kidd & Co Court Chambers 3 Bath Parsonage Kingston upon Thames Surrey KT1 1ES
For the Respondents	MR S NEAMAN (of Counsel) George Carter & Co King's Stone House 12 High Street Kingston upon Thames KT1 1HD


 


MRS JUSTICE SMITH: This is an appeal from the decision of a Chairman of Industrial Tribunals on 21 April 1997, whereby he refused the Appellant's second application for a review of a decision earlier taken by an Industrial Tribunal of which he was Chairman on the ground that a review had no reasonable prospect of success.

The history of this matter goes back to 10 August 1995, when the Appellant resigned from his post as a CNC Setter and Operator with the Respondents, a post which he had held since 1987. On 7 November 1995, he lodged a complaint with the Industrial Tribunal saying that he had been constructively dismissed from that employment. His contention was that he had been so overworked by the Respondents that his health had broken down in the Summer of 1995 and he had had to take time off suffering from nervous exhaustion. He claimed that this was caused principally by the Respondents' failure to provide him with adequate assistance in the handling of the two machines for which he was responsible, which were supposed to run simultaneously. Until some time in late 1994, the Appellant had had the assistance of one Smyth. Smyth had left either in August 1994 or December 1994 and had not been replaced. The Appellant claimed that this change had greatly increased his workload. He claimed that he had raised his concerns about the amount of work he was expected to do and had been told to do his best. However, due to overwork, he had become ill. On 7 August he telephoned Mr Hambrook, the Managing Director and told him that he could not work two machines without assistance. His request for help was refused and he had decided to leave. He had sent a letter of resignation.

The Respondents' case was that while it was true that the assistant Smyth had not been replaced when he left, there had been no pressure on the Appellant to produce more work. If one of his machines had to remain idle for a time, because he had no labourer or assistant to help, no criticism was made of him. Nor, said the Respondents, had the Appellant complained about his workload other than by passing casual comments. When he had taken time off in July and early August 1995, he had not supplied the Respondents with medical certificates. It was not until the final conversation on 7 August that the Appellant had made any formal complaint about his workload. The Respondents accepted that on 7 August the Appellant had said that he could not work the two machines. He had been asked to come in for a discussion. He had refused to do this and said that he would not come in. He had then been asked to put his resignation in writing.

The hearing was scheduled to begin on 22 April 1996. On that day the Appellant and Mr Smyth gave evidence. The Appellant's case was closed and some evidence was called by the Respondents. The case was adjourned to 28 May due to lack of time. Soon afterwards, the Appellant, who had been represented by a man named Mr Fraser, who was not legally qualified, wrote to the Respondents requesting disclosure of certain Company records. It appears that these were not provided voluntarily by the Respondents, because on 6 May, Mr Intasean, the Appellant, wrote to the Regional Office of the Industrial Tribunals requesting an order for discovery of four categories of documents:

(a) The previous 5 years of fully audited company accounts for the Respondents.

(b) Current and previous price list for the last 5 years for products produced by the Respondents.

(c) The Weekly or Monthly Workings Deductions Sheets which show the start/stop dates for all employees relative to the wages paid during the last 5 years. Also copies of forms P60.

(d) Delivery documents, V.A.T. invoices and Receipts for payment for all automatic, or other, lathes or similar machines purchased during the last two years by the Respondents.

On 13 May an order for discovery was made in the terms requested. The Respondents were directed to produce the documents within seven days of the order, and to allow inspection of the documents and copies to be taken. On the following day, 14 May, the Respondents objected to the order which had been made on an ex-parte application. They set out the reasons for their objections and on 22 May the Chairman ordered that issues of discovery should be determined at the beginning of the resumed hearing. In the meantime he directed that the Respondents should bring all the documents with them and five copies thereof, in case their objection should not be allowed.

It appears that when the hearing was resumed discovery was ordered and the Appellant and his representative were allowed to examine the documents. The hearing was then completed and the Tribunal reserved their decision. Summary reasons for their decision, which was that the Appellant's claim failed, were sent to the parties on 6 June 1996.

By letter dated 15 June 1996 the Appellant sought a review. He sent a very long letter of request accompanied by two long lists of questions, which he required the Tribunal to answer. Unfortunately, the Industrial Tribunal Chairman then fell ill and it was not until 21 October 1996 that he was able to supply the Tribunal's Extended Reasons for their decision. Three days later, on 24 October, he dealt with the Appellant's request for a review.

It is convenient at this stage to summarise the findings of the Tribunal, as set out in the Extended Reasons. They referred to the material before them, including accounts and staff records and they listed the witnesses heard: the Appellant, Mr Steven Smyth on his behalf, and five witnesses for the Respondents.

In essence they accepted the Respondents' evidence as accurate. Where there was any dispute they preferred the Respondents' account but the areas of dispute appear to have been relatively limited. They accepted that Mr Smyth had not been replaced and that he had previously helped the Appellant for about ten hours a week. They did not accept that the Appellant's workload had increased to the extent claimed. They accepted from the Respondents that no pressure was ever put on the Appellant to produce more work and if his machine was left idle he was not criticised. They accepted that he had complained about the volume of work which he had to do, but they accepted that he had simply been told to do his best. They rejected the Appellant's allegation that the pressure under which he had been put caused an increased risk to health and safety. They also rejected the Appellant's claim that the ill-health from which he had suffered in July and early August had been caused by overwork. They accepted the Respondents' account of the conversation on the 7 August insofar as there was a dispute. In any event they accepted that Mr Hambrook, the Respondents' Director, had asked the Appellant to come in to discuss the question of assistance and he had refused to do so.

Having made these findings of fact the Tribunal considered Section 55 (2) (c) of the Employment Protection (Consolidation) Act 1978 and they directed themselves as to the burden which lay upon the Appellant, who, for a case of constructive dismissal, had to show that the Respondent had committed a repudiatory breach of contract; that is a significant breach going to the root of the contract. No complaint has been, nor could be made, of the directions of law which the Tribunal gave itself. The Tribunal came to the conclusion that there had not been a repudiatory breach, that this was not a case of constructive dismissal and they rejected the claim.

As we have indicated, by the time the reasons were available in their full form, the Appellant had already submitted his first application for a review. In dealing with that review the Chairman sorted out, in a commendable fashion, the essential complaints. He then provided to the Appellant a reasoned decision dealing briefly with each of the arguments raised.

In particular, he noted that one of the Appellant's complaints was that his representative had not had sufficient time to analyse the Respondents' accounts. In response to that, the Chairman said that the Tribunal considered fully all the documents before it and the Applicant was given sufficient time to view them.

Second, the Chairman noted the complaint that some of the documents produced on 28 May had red inked handwritten notes on them and that these notes were misleading and had been written for the guidance of the Tribunal to which the Chairman said:

"The red ink was merely a hand written indication on the staff records of the number of staff who had left or joined the company in any year. These were seen by the Applicant and was not relevant to the Tribunal in coming to its decision in this case."

Another complaint noted by the Chairman was that the Chairman himself had not had time to read all the documents. The Chairman responded that he had. He and the members had had sufficient time and had read all the documents. He must have meant that he and the remaining member had had adequate time. By 28 May, one of the members was unwell and the parties elected to go on with a Chairman and one member.

The only other complaint relevant to this appeal, was that the Appellant had suggested, in the first request for a review, that a Chartered Accountant should see and report on the Respondents annual accounts. As to that the Chairman said that this would not have assisted the Tribunal to reach its findings.

One might have thought that matters would then have been closed. But on 15 February 1997, the Appellant requested another review or made a second request for a review. This time he enclosed affidavits from a Mr O'Brien, a chartered accountant and from Mr Smyth, the Mr Smyth who had earlier given evidence at the hearing.

Somewhat surprisingly, in view of the long delay in submitting this second request for a review, the Chairman considered it on its merits and examined all the materials submitted. On 21 April 1997 he rejected it on the grounds that there were no reasonable prospects of success. It is against that rejection that the Appellant now appeals.

The grounds of appeal were prepared by the Appellant himself and were somewhat confused. However, fortunately today we have had the assistance of Counsel, who has been instructed very recently, so recently that he has been unable to prepare the material for this appeal in the way that he would have wished. However, we have allowed him some latitude in putting material before the Appeal Tribunal, which we would not otherwise have permitted. He has taken only one point; that the Appellant and his representative at the substantive hearing had insufficient time on or before 28 May, to examine the accountancy material, to assimilate that material and to present their arguments based upon it. He has submitted that, because the Appellant was at a disadvantage, there should be a review of the decision after the Appellant and his representatives have had sufficient time to examine and assimilate the disclosed material.

We were told that the Appellant and his representative were only allowed 30 minutes to examine the documents before the resumed hearing began. It has been accepted that no formal request was made either for further time or for an adjournment. Counsel's instructions are that the Appellant or his representative told the Tribunal that they were in difficulties but no application was made.

At a late stage in the hearing before us it was suggested by the Appellant that the copy papers, which he had been shown on 28 May were withdrawn from him and his representative before the hearing began. This allegation has never been raised before. It was not mentioned in either the first or second application for a review, each of which was quite long and detailed. In those circumstances we are not prepared to accept that that was the case, although we do accept that the Appellant was required to return the documents to the Respondents at the end of the hearing.

We have listened carefully to Counsel's submissions, but we are of the view that there is no merit in them. The Chairman identified the points of substance within the first application for a review and dealt with each of them as we have indicated. On the second request the Chairman dealt more briefly with the matter, but it is apparent from his decision that he had read all the material. He explained in his decision that none of the documents recently submitted raised any new issues, and he explained that the new material could make no difference to the conclusions that the Tribunal had reached at the substantive hearing.

The refusal to grant a review on the ground that there are no reasonable prospects of success is an exercise of discretion, and an appeal against the refusal can only succeed if it can be shown to be perverse.

We consider that this Chairman has taken great care to consider the issues raised in both requests for a review and his decisions could not possibly be described as perverse. Indeed, in our view, it would have been surprising had the Chairman agreed to a review. Although the accountancy material was ordered to be disclosed and therefore must have had some relevance in the Tribunal's view, it must in our view have been peripheral to the Industrial Tribunal's essential findings of fact, which were that no pressure was ever put on the Appellant to do more work and also that he declined to come in to discuss his request for assistance on the first occasion that he raised his complaint formally.

In our view there is no merit in this appeal and it must fail.

Having indicated to Counsel for the Respondent that the appeal would fail, Counsel agreed not to pursue the arguments raised in his cross-appeal. That has not been argued and there is no need to say anything further on that subject.

Following the dismissal of this appeal the Respondents made an application for costs, submitting that the pursuit of this appeal has been wholly unreasonable. We accept that submission, despite the fact that another division of this Appeal Tribunal permitted the appeal to proceed to a full hearing. In his short judgment, Mr Justice Lindsay indicated that the appeal was to proceed because it was alleged by the Appellant's daughter, who then represented him, that the original order for discovery made by the Chairman in May 1995, had not been properly complied with. That suggestion has not been pursued today.

We are of the view that the pursuit of this appeal was wholly unreasonable and we are minded to accept Counsel for the Respondents' submission that we should mark the disapproval of the Employment Appeal Tribunal of the way in which these proceedings have been conducted.

We asked for information as to the Appellant's financial situation. We were told that the Appellant is in receipt of Social Security Benefits. We regret to say that we are unable to accept the truth and accuracy of the information provided. We bear in mind the following factors. In 1995 this Appellant gave up a highly skilled job in which he earned about £500 a week gross, including bonuses. He has not worked since he tendered his resignation in August 1995. It is not suggested that he is ill or in any way unfit to work and we bear in mind that he lives in the London area where in recent years work has been available for skilled men. The Appellant claims to be in receipt of £42 Social Security benefit. He also claims to be responsible for the care of an 11 year old child living with him, although he also claims that the benefits in respect of that child are not received by him, but by the mother with whom the child does not live. We do not know what the truth of all this is, but we are not prepared to accept this information as true and accurate.

It has not been requested that we should make a full order for costs and indeed, we would not in any event do so. However, we do consider that we should make a token order for costs and we do so in the sum of £200.

The Appellant will pay the sum of £200 to the Respondents. Unless any further submission is made to us, we propose to order that that sum be paid at the rate of £5 per week, starting in two weeks' time, Wednesday 28 October 1998.