United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J M WRIGHT (Representative) Law at Work 5 Bonham Road Bournemouth Dorset BH9 1AW


 


JUDGE ALTMAN: This is an appeal from the reserved decision of the Employment Tribunal sitting at Southampton following a five day hearing from 27th to 31st July 1998. The appellant was the employee of the respondents and this appeal comes before us by way of preliminary hearing to determine if there is an arguable point of law such as to justify the hearing of this appeal in full before the Employment Appeal Tribunal.

In its decision the Employment Tribunal set out the findings of fact upon which the decision was based. On 6th January 1998 the appellant had presented her complaint to the Employment Tribunal but had not specified in it the day in January which she alleged as the date of her dismissal. In their Notice of Appearance the respondents specified the 9th January, that being the day on which they allegedly came to the conclusion that the appellant had resigned her employment, being a conclusion with which the Employment Tribunal ultimately agreed. The appellant had been subject to disciplinary proceedings by her employer. Following an appeal hearing on 12th December 1997 the dismissal of the appellant had been varied to a final written warning, reimbursement of all back pay and a proposed return to work on 5th January.

The appellant had worked for the respondents for some 23 years and by December 1997 was a Regional Director. However, the appellant did not accept in writing the proposal for her return to work, but instead raised by letter of 31st December a number of matters which concerned her and asked for agreement on them so that she could recommence her work with the respondents. On 2nd January the respondents replied that the terms of her return were clear and that they expected her to return after which any matters could be discussed, no doubt in the way that employers and employees generally do from time to time. The respondents wrote a fuller letter on 5th January. The detailed exchanges are referred to in the decision of the Employment Tribunal. However, the appellant did not return and indeed had already lodged her Originating Application, though it was unsigned and undated.

On behalf of the appellant two complementary arguments were raised. First, it was contended that the Employment Tribunal was wrong in law in concluding that there was no dismissal, but a resignation. Secondly, it was contended that even if the appellant committed the final act in bringing her employment to an end, she was entitled to do so by reason of the various breaches of her employment contract by the respondents which entitled her to leave and as a result of which she was constructively dismissed.

As to the first, Mr Wright referred to the case of London Transport Executive v Clarke [1981] IRLR 166 as support for the proposition that where an employer says "if you do not do X you will be treated as having resigned" this is, in effect, a dismissal. This matter was considered by the Employment Tribunal. The Employment Tribunal set out in some detail its findings of fact in relation to this matter and found that the appellant:

"(dd) ... was prepared to confirm Mr Howroyd's offer of reinstatement, but subject to six points, ... and asked him to confirm his agreement to those terms so that "I may recommence my work with the Company ..."."

The response, subject to detailed answers to the points made, from the respondents concluded with the words:

"If you do not agree unequivocally to the reinstatement by 4.00 p.m. on Friday, 9 January 1998, then I shall assume that you have declined it and that you do not intend to return."

The appellant then replied in a long letter on 8th January. To this on the following day Mr Howroyd wrote that:

"(gg) ... it was clear to him that she had no intention whatever in returning to her position. Accordingly, she would be paid her full salary until that day, at which point the Respondents would consider that she had resigned her position. ..."

The appellant wrote on the day after that and concluded:

"However, due to the way in which I have been treated and the surrounding circumstances, I do not believe that your offer of reinstatement is reasonable and I am disappointed that you do not wish to discuss if further."

The Employment Tribunal point out that by then the appellant had presented her Originating Application to the Employment Tribunal. In its findings the Employment Tribunal concluded:

"15. Mrs Oram's contract of employment ended when, whilst still refusing to admit that she was in any way in error in having signed the blank memorandum, she decided to impose her own conditions for her return. When she did not confirm that she would return to work as requested, the Respondents indicated that she would be deemed to have resigned. We find that that is exactly what happened. There was no dismissal here, whether constructive or otherwise. ..."

Leaving aside for a moment the question of constructive dismissal, we can find no support for the criticisms raised by Mr Wright. It seems to us that on the facts as found by them the Employment Tribunal were entitled to conclude that the appellant was not prepared to give to her employers the normal entitlement of employers to decide on matters such as disciplinary consequences, but was seeking to control them herself and, in the words of the Employment Tribunal, "to impose her own conditions for her return". Furthermore, there is a subtle but important distinction. In the case before us the respondents were not imposing some actions upon the appellant, failure to perform which were regarded by them as a resignation. It seems that they were regarded by the Employment Tribunal as simply stating the fact, that if the appellant did not come to work they would have to assume that she had decided to resign. The important words of the Employment Tribunal are these:

"We find that that is exactly what happened."

In those words the Employment Tribunal is clearly independently assessing the facts and coming to a conclusion on the facts to which they were entitled to come, namely that there was a resignation. This resignation was not caused by any statement by the respondents such as occurred in the London Transport Executive case, but rather is simply an analysis of what the appellant did, namely that she left her employment. That was a conclusion to which the Employment Tribunal were entitled to come on the facts before them and from which there is no arguable ground of appeal.

We turn now to the question of constructive dismissal.

The appellant made wide-ranging allegations against the respondents in support of the contention that in so far as she left her employment it was by way of constructive dismissal. In so far as she had signed a piece of paper used by the subordinate to defraud her employers by obtaining unauthorised payments for his wife, the appellant said that this derived from a breach of contract by her employers in engaging that subordinate in the first place and thereby holding him out as being trustworthy. Mr Wright sought to argue that there was disparity of treatment between the appellant and this subordinate, but any such disparity was in the appellant's favour because she, in the event, received a final warning whereas he was dismissed. The Notice of Appeal further alleges that the respondents were in breach of their obligations by failing to give the appellant sufficient staff or in providing her with an alternative signatory, so as to put her in the position of having to leave signed blank sheets of paper for others to complete. Furthermore, it is alleged that the tribunal failed to conclude on the facts that a reasonable employer would have seen nothing wrong with her leaving blank sheets of paper signed by her in the circumstances of this case. Mr Wright criticises the tribunal, and the respondents, for confusing the hypothetical and general situation of leaving such documents on the one hand with what actually happened in this case on the other. Mr Wright suggests that had the tribunal looked at what actually happened in this case they would have come to a different conclusion. Furthermore, Mr Wright complains that the tribunal did not conclude that the whole disciplinary process to which she was subject was, in effect, hypocritical and simply a means of reacting to the claims of statutory right, namely for equal pay and contractual entitlements, which, the appellant says, were the real motivating factors in the whole disciplinary process.

It seems to us that the Employment Tribunal made appropriate findings of fact in relation to all issues which were presented before them. These were findings which they were entitled to make on the evidence before them. Having set out in some detail those findings they conclude in paragraph 14:

"While the original disciplinary proceedings could be criticised on a number of points, including Mr Caiels view of the Applicant's letter to F, these were in our view cured by the lengthy and thorough appeal process which terminated in setting aside the dismissal. Mrs Oram based her criticism of the outcome of the appeal upon the imposition of a final written warning. ..."

It is quite clear that in reaching this conclusion the tribunal had considered all the facts before them but had reached the judgment that the way in which the appeal was held corrected any defects. Having analysed the exchanges between the parties, to which we have already referred, the tribunal concluded with the words:

"There was no dismissal here, whether constructive or otherwise."

The points made by Mr Wright are simply an attempt to re-argue the issues which were before the tribunal and which they clearly considered carefully and fully. Whilst we understand that the appellant does not agree with the conclusions they are such which any tribunal reasonably directing themselves could come to and there is no arguable point of law arising from them.

The appellant has further criticisms of the appeal hearing itself. Mr Wright has argued that it was wrong for the respondents to change the basis of the disciplinary action at the appeal hearing. He complains that by changing the allegation of forgery of a letter, which had been the reason for the original dismissal, to that of allowing subordinates to have blank sheets signed by the appellant, as a breach of procedure, was a fundamental change which should have been treated properly. There is no substance in this argument whatsoever and clearly no point of law arises from it. At an appeal stage employers will sometimes take a different view of facts which are presented to them and that is all that has happened here. Furthermore, this issue was clearly addressed by the tribunal when they found:

"14 ... The Tribunal does not agree with her. Those procedures were intimately connected with the fact that she had signed a blank memorandum and handed it to one of her staff who had made a dishonest use of it. There was, in our view, no necessity for a further disciplinary process to be undergone before a penalty was imposed upon her for her admitted conduct. The Respondents were not in breach of any term of Mrs Oram's contract, whether express or implied when Mr Howroyd imposed the final written warning."

These words also, of course, provide a base for the conclusion that there was no constructive dismissal.

As to the claim for equal pay the appellant claims that the tribunal erred in failing to conclude that there was unequal treatment. The appellant refers to Mr King and Mr Done. However so far as Mr King is concerned the tribunal recognised that he was paid substantially more than the appellant and they attribute that to the fact that he was "head-hunted" with a salary needed to relocate him to the Midlands. This is a form of "red-circling" and as this was the evidence of the respondents the tribunal were perfectly entitled to rely upon it and no point of law arises from their doing so. So far as Mr Done is concerned, there is reference to some of the evidence in the grounds of appeal. We note, in any event, that he was not one of the comparators alleged by the appellant and the fact that his salary may have been "red-circled", had he obtained the job that was ultimately given to the appellant, appears to us to be hypothetical and not a matter of comparison in any event. It is clear that the Employment Tribunal carefully found the relevant facts under this head and based their conclusions upon those facts in a way which any reasonable tribunal could do, without being in error so as to give rise to an arguable ground of appeal.

So far as the claim of an assertion of a statutory right is concerned, the tribunal made the following findings:

"23 ... There is nothing to connect any of these [the claims referred to] with her dismissal. The claim was never defined, it was not followed up and we dismiss it."

That is a conclusion on the evidence before them which the Employment Tribunal were entitled, as a matter of law, to reach and no arguable point of law arises upon it.

So far as the allegation of discrimination on the ground of sex is concerned, the tribunal made findings as to the alleged remark which was made, and they found that in any event the claim was out of time. Their conclusion was based upon the findings of fact which they were entitled to reach. The conclusions themselves were such as a tribunal properly directing itself was entitled to make and there is no arguable point of law which arises upon this.

The Employment Tribunal finally dealt with the breach of contract claim. The Employment Tribunal found:

"25 ... We understand that this a claim for outstanding holiday pay. This claim was hardly, if at all, touched on at the hearing, and the application fails."

When arguing the case before us Mr Wright point out that in response to an interlocutory order before the main hearing before the Employment Tribunal, the appellant set out the heads of allegation of breach of contract of employment which included claims for a car allowance, mobile phone expenses, medical insurance, and holiday pay. In argument before us when we sought to ascertain how the Employment Tribunal could have come to the conclusion set out above in the light of the particulars to which we have referred, Mr Wright confirmed that the evidence before the tribunal included such heads of claims. He did not rely upon oral evidence given, but he said that these claims were included in the appellant's statement. As we did not have this in the documents before us we adjourned this preliminary hearing so that he could send the statement to us. Mr Wright sent this statement. It is apparent that this statement contains none of the claims referred to. In the covering letter sent to the Employment Appeal Tribunal on 1st December 1998, Mr Wright points out that in the witness statement in paragraph 25 the appellant says:

"I pointed these facts out to Mr Howroyd in an exchange of letters towards the end of 1997 and the beginning of 1998 (documents s. 219, 226, 231)."

It is true that in a closely typed 2½ page letter in the final paragraph there is reference to a request made by the appellant to the respondents for the various heads to which reference has been made. However the whole of the body of the letter 219, and the other letters referred to, are dealing with the substance of the other allegations set out in the appellant's statement. Furthermore, the reference in the appellant's statement to the letter which is document 219 was in the context of the other matters of complaint. This is clear, because by referring in her statement to "these facts" the appellant was referring to her arguments about the substance of the issues between the parties other than these breach of contract items. It is clear that Mr Wright was in error when he recalled at the hearing before us that these contract claims were in the appellant's statement. Their mention in the associated letter was incidental.

We can see no reason for sustaining an argument that where the actual witness statement makes no reference specifically to items claimed, where no submissions are addressed by a representative to the tribunal and where the issues are not canvassed in evidence at all during the hearing, there is some duty on the Employment Tribunal to root around in all the correspondence and find for itself additional items which happen to have been set out in a document supplied by way of particulars in anticipation of the hearing. We can find no basis for criticising the conclusion of the Employment Tribunal under this head as set out above. There is no error of law whatsoever.

After a five day hearing before the Employment Tribunal the Chairman delivered a reserved decision which was meticulous and comprehensive and which set out the relevant findings of primary facts, the findings of fact to be derived therefrom and the conclusions of law all of which formed the basis of their decision. Whilst we have carefully considered the many arguments addressed to us on behalf of the appellant, we can discern no arguable point of law such as to justify this matter proceeding to be considered in full by the Employment Appeal Tribunal. We can understand that with so many years of valued service to her employers, the appellant disagreed with the conclusions they had reached. We can also understand that she disagreed with the conclusions which the Employment Tribunal reached. However that in itself cannot, of course, form the basis of an appeal which is confined to a point of law and in the absence of any arguable point of law we are driven to dismiss the appeal at this preliminary stage.