United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR SEAN JONES (Of Counsel) Director of Legal Services (f.a.o. Alan Lester) John Lewis Plc 171 Victoria Street London SW1E 5NN


 


JUDGE C SMITH: This is an application by the employers before the Industrial Tribunal, John Lewis Plc, for leave to proceed to a full hearing of an appeal against the decisions of an Industrial Tribunal held at Southampton over two days in May and June 1998, of which extended reasons were sent to the parties on 3 July 1998, whereby the Industrial Tribunal held that the Applicant employee before them, Mrs M L Hewlett, had been constructively and unfairly dismissed. The Industrial Tribunal also made a further decision against which an appeal is made of which extended reasons were sent to the parties on 10 September 1998, after a Review Hearing on 9 September 1998, whereby the Industrial Tribunal refused an application by the Appellants for a review of its earlier decision. We have reminded ourselves that the Appellants only have to show an arguable ground of appeal to be allowed to proceed to a full hearing of their appeal.

In order to understand the grounds of appeal relied upon it is necessary to summarise the relevant parts of the substantive decision and the review decision. We will make clear when we are referring to the review decision to the extent that we need to do so. However we should say that, in our judgment, both decisions are clearly expressed and speak for themselves. Reference should be made to the detailed findings, conclusions and reasoning of the Industrial Tribunal for the full effect of the two decisions. What we say about them is no more than a summary.

To put the matter beyond doubt, having regard to the points that were, at any rate, at one point argued - in the Notice of Appeal and they did surface in the skeleton argument - we should say that in our judgment it is clear both from the IT1 and the Notice of Appearance and also from the Industrial Tribunal's decision at paragraphs 1 and 3, the issue before the Industrial Tribunal, as stated by them, was whether Mrs Hewlett had been constructively and unfairly dismissed. In particular there is nothing to indicate, from the decision itself, that there was any limitation on the issues being tried by the Industrial Tribunal, or anything of that kind. In this regard we note, in particular, the exposition of the issues which the Industrial Tribunal understood that they had tried at the hearing as set out in paragraph 9 of the review decision.

There was a submission in the skeleton argument, particularly in paragraph 9, to the effect that the Industrial Tribunal had, in some way, failed to make clear that the issue of fairness was to be considered at the original hearing. We can deal with that very shortly indeed because it is not really being pursued by Mr Jones in his very able submission to us today. It clearly must be the position that the presumption always must be that the Industrial Tribunal is considering all the issues relevant to a claim for unfair dismissal. It would then have to be for the parties, either by agreement or by application, to seek an order for trial of a preliminary issue or for an order limiting the issues in some way. Nothing of that kind happened here. As is usual in constructive dismissal cases the focus of the evidence, the findings of fact and the conclusions of the Industrial Tribunal were on the crucial issue as to whether there had been a fundamental breach of contract on the part of the Appellants which Mrs Hewlett had accepted and which had caused her to resign.

There can, of course, be a fair constructive dismissal. But that is only in unusual and exceptional cases. The evidential onus would certainly be on the employer, in our judgment, to address any such argument to the Industrial Tribunal. So we must reject that ground of appeal, put forward in paragraph 9 of the skeleton argument, but not really pursued before us in oral argument today.

Before we can turn to consider the other grounds of appeal we very briefly summarise the essential findings of the Industrial Tribunal. The findings of fact are set out in considerable and careful detail in paragraph 7 of the decision which, we repeat, very much speak for themselves. Putting it very shortly, the Industrial Tribunal found that Mrs Hewlett did not want promotion to ASM (Assistant Section Manager) and that her section manager, Mrs Linden, knew that. The Industrial Tribunal found that although she was not formally promoted to ASM she was given the 'tasks' of an ASM to perform in November and December 1996 and the Industrial Tribunal also found that she was happy to take those on despite her overall reservations - as the Industrial Tribunal found - about any such promotion.

On 13 December 1996 Mrs Hewlett put in a letter of resignation, which was subsequently withdrawn, to Mr Raisey, the department manager. There followed a meeting between Mrs Hewlett and Mr Raisey. The Industrial Tribunal found as a fact, at sub-paragraph 7(p):

"As to the nature of the matters about which she complained to the Respondents, Mrs Hewlett testified that she made them clear to Mr Raisey. The reason was not that she was not getting on with Mrs Hall. She told him that she was always worried about the next day, about the Managers' meetings which she attended as part of her temporary functions and that she worried overnight about this. Under cross-examination she testified that the whole of her resignation letter had to be read to show how she felt. Her complaints had been the same throughout, relating to a pile of duties which she could not cope with, together with the attitude of Mrs Hall and lack of help from Mrs Linden. We prefer this evidence to that of the Respondents' witnesses. We find Mrs Hewlett to be entirely convincing."

The Industrial Tribunal found as a fact that Mr Raisey informed Mrs Hewlett, on 13 December 1996, that he would speak to Mrs Linden and that she would take steps to resolve the problems faced by Mrs Hewlett, namely, as we interpret them on the findings of the Industrial Tribunal, the pile of duties she could not cope with resulting from the ASM tasks she was asked to carry out, the attitude of Mrs Hall and the lack of help or support from Mrs Linden. The Industrial Tribunal went on to find as a fact that between 13 and 20 December no steps were taken by the Appellants to resolve Mrs Hewlett's problems. It was this failure to take any steps or make any attempts to resolve the problems on the part of management that had brought about Mrs Hewlett's decision to resign.

The Industrial Tribunal concluded that the Appellants' failure to take any steps to do what they had promised to do was what had brought about a breakdown in trust and confidence between Mrs Hewlett and the Appellants which amounted to a fundamental breach of contract which was accepted by Mrs Hewlett by her letter of resignation dated 22 December 1996. Accordingly, the Industrial Tribunal found that Mrs Hewlett had been constructively dismissed (paragraph 9) and that the dismissal was unfair (paragraph 10). In paragraph 8 the Industrial Tribunal had correctly referred to section 95(1)(c) of the 1996 Act, implicitly to the test under Western Excavating Ltd v Sharpe and the implied term of trust and confidence.

It is against those findings and conclusions of the Industrial Tribunal that we have to consider the grounds of appeal. The main ground of appeal that is taken is to the effect that the Applicant, Mrs Hewlett, had changed tack, had been allowed to change tack and certainly changed emphasis completely from, on the one hand, complaining about the additional duties, as set out in her Originating Application (her IT1) and in her witness statement, to, on the other hand, complaining about her working relationship with Mrs Hall. Really, at the heart of the complaint about the decision of the Industrial Tribunal is the submission that, since this did not form part of the Applicant's pleaded case either in the IT1 or in her witness statement then the Industrial Tribunal should not have allowed that alternative complaint to be developed in the way it was without, at any rate, giving the representatives of the Appellants a very much better opportunity to ask what Counsel submits would have been a great number of pertinent questions in relation to that matter.

However, in our judgment it must have been obvious to all concerned at the hearing before the Industrial Tribunal that there were these separate, inter-related strands to the Applicant's complaints and, in our judgment, there is no indication whatsoever that those representing the Appellants were not able fully to explore any 'change of tack' or change of emphasis which Mrs Hewlett had put forward at the hearing as compared with her original pleading. It is important, in our judgment, that we should remind ourselves that there remains a fair degree of informality and common sense properly to be found at Industrial Tribunal hearings and the matter does not fall to be judged by reference to pleading standards that may, at one time at any rate, have been appropriate in civil proceedings (although how much longer that is going to last must be extremely questionable in the light of recent developments). So we find that we can detect no error in the approach of the Industrial Tribunal, nor can we see that there was any unfairness, let alone any lack of natural justice, extended towards the Appellants' Representatives in the manner in which this Industrial Tribunal hearing proceeded.

An allied point, which was heavily relied upon in the skeleton argument, was, as we understand it, to the effect that the Industrial Tribunal should not have considered Mrs Hewlett's letter of resignation, dated 22 December 1996. But that point has not been pursued at all in oral argument before us, although it loomed large in the skeleton argument. That document came as one would expect from the employers' bundle of documents, R1, seemingly, at pages 4 and 5. Thus, of course, the employers were well aware of that document and it was absolutely bound to be considered and evaluated, amongst all the other evidence, by the Industrial Tribunal. Some of the contents of that document were certainly concerned with complaints by Mrs Hewlett against Mrs Hall. All these matters were inter-related and the reality is they all properly fell for consideration together by the Industrial Tribunal. No limit was placed by the Chairman, as he points out in the review decision, on cross examination of the Applicant employee, Mrs Hewlett. We cannot accept that the fact that the relationship with Mrs Hall was not mentioned in the IT1 or in the Applicant's written statement should in any way have inhibited such cross examination.

We stress that there was no error of law or unfairness that we can detect in the Industrial Tribunal considering the terms of the resignation letter or the evidence relating to Mrs Hewlett's complaint with regard to Mrs Hall in the overall matrix of the matters which they had to decide. It was submitted to us that findings of the Industrial Tribunal, that there had been a repudiatory breach of contract, in the way that they were expressed did not let the Appellants know why they had lost and reliance was placed upon Meek v City of Birmingham District Council. But in our judgment the Industrial Tribunal made it quite clear from the terms of their decision why the Appellants had lost. The basis of the Industrial Tribunal's decision was to the effect that the Appellants had promised Mrs Hewlett, by Mr Raisey, that they would at least attempt to resolve the genuine difficulties which had been occasioned to Mrs Hewlett and which she had specifically raised on the findings of fact of the Industrial Tribunal with Mr Raisey. In breach of that promise the Industrial Tribunal found as a fact that nothing had been done by management. No attempts had been made by management to try and resolve these problems. The Industrial Tribunal simply held that in the particular circumstances of this case that amounted to a breach of the implied duty of trust and confidence. In our judgment, although that is not necessarily a decision which any of us would have arrived at, it was a decision which the Industrial Tribunal were entitled to reach on the evidence before them. It was a matter within their purview as an industrial jury. It was not for the Industrial Tribunal to advise the Appellants as to what precise steps they should have taken in circumstances where the Appellants, on the findings of the Industrial Tribunal, had themselves promised to take the necessary steps but had failed to take any steps to try and resolve the difficulties. So we find this is not a case where it can even arguably be said that the Appellants did not know why they had lost.

Finally, it was submitted to us that the Industrial Tribunal had erred in law in applying a subjective test in deciding whether there had been a fundamental breach, by the Appellants, of the implied duty of trust and confidence. In our judgment there is nothing in the decision to indicate that the Industrial Tribunal did other than apply the correct test. For the reasons we have already given we consider that the Industrial Tribunal's reasoning in paragraphs 8 and 9 of their decision is consistent with the application of the correct objective test. Counsel sought to rely on the contents particularly of paragraph 7(j) of the findings of fact but, in our judgment, it is important to place those remarks - which we do not need to cite - in the context in which they are found in the decision. They are found in the paragraph dealing with findings of fact and they are concerned with resolving a question of credibility between Mrs Hewlett's testimony on the one hand and Mrs Linden's on the other. In our judgment it was entirely apt for the Industrial Tribunal, in reaching a conclusion as to what evidence to accept with regard to findings of fact, to express themselves in the manner they did in the last sentence at paragraph 7(j). Nothing in the use of that expression, in that context, can, in our judgment, in any way lead to any arguable ground for believing that the Industrial Tribunal in any way applied a wrong test when they came to consider - as they did, eventually, in paragraph 9 - whether there had been a breach of the implied duty of trust and confidence, where in our judgment it is clear they applied the proper test.

Accordingly, for those reasons, we must dismiss this application for leave to proceed to a full hearing in regard to both the substantive decision, as it is described in the skeleton argument, and the review decision.