United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr N Smith Counsel Instructed by: Messrs Quiney Jaggar (Ref - EG/IK/GITTINS) Solicitors Vectis Court 4-6 Newport Street Old Town Swindon, Wiltshire SN1 3DX


 


JUDGE PETER CLARK:

1. This appeal first came on for preliminary hearing on 12 May 1999 before a differently constituted division of the Appeal Tribunal on which I sat. It became apparent from the submissions of Mr Smith of Counsel, who had recently been instructed on behalf of the Appellant in place of the Appellant's father, Mr Graham Gittens, who had earlier represented the Appellant, that the appeal was not then properly constituted. We adjourned the hearing and gave directions as appears from the judgement which I gave on that occasion, and the order made by this Employment Appeal Tribunal.
2. The matter now returns to us on the resumed Preliminary hearing.
3. Background: The Appellant, Mr Adrian Gittens, commenced these proceedings before the Bristol Employment Tribunal by an originating application presented in March 1998, complaining of constructive dismissal and breach of contract by his former employer, the Respondent Marlborough Tiles. That employment commenced in February 1993 and ended in February 1998, when the Appellant resigned in circumstances, which he alleged amounted to constructive dismissal.
4. It was his case that the respondent was guilty of a series of acts which cumulatively amounted to a breach of the implied term of mutual trust and confidence, going to the root of contract of employment, entitling him to treat himself as discharged from further performance. In particular he alleged that he had been improperly disciplined by the respondent for walking around the town whilst he was supposedly off sick in October 1997. The Respondent also accused him, incorrectly, as it turned out, of sabotaging a barrel of glaze used in the course of production. He received a verbal warning. He complained of victimisation, particularly by his supervisor Rachel Haley in the course of his employment and further complained that the Respondent required him to work in the basement of the premises with the doors open during January after he had recently recovered from a bout of pleurisy. He also complained that he had been downgraded to do work of a more menial kind than that which he had formerly performed as a glaze preparation supervisor.
5. The Employment Tribunal, sitting at Bristol on 19 August and 9 September 1998, under the Chairmanship of Mr C F Sara, considered his various complaints, but by a decision with extended reasons promulgated on the 6 October 1998, concluded that the Respondent was not in fundamental breach of the contract of employment and thus the appellant's claims of constructive unfair dismissal and breach of contract failed.
6. Before us today Mr Smith has taken what may broadly be described as three points. The first is in relation to the respondent calling a witness Mrs, Sprules to give evidence as to the identity of the appellant on the occasion when he was said to have been walking around the town whilst off sick. It seems that no formal order was made for exchange of witness statements prior to the first day of hearing. However, we are told that at the end of that first day the Appellants evidence and that of his two witnesses Mr Warman and Ms Bilton had been given and also the evidence of Rachel Haley on behalf of the Respondent. The Chairman then directed that the Respondent should have prepared witness statements in respect of their remaining witnesses and disclose them to the Appellant in advance of the second day of the hearing. It seems that no such witness statements were disclosed in advance of the second day. On that day the respondent's side attended with witness statements for all but one of their witnesses, Mrs Sprules. Nevertheless the Respondent was permitted to call that witness. It is the Appellant's case on appeal that her evidence came as a complete surprise to Mr Gittens Senior who was then conducting the Appellants case. As a result, and he had been given no opportunity to call for evidence in the rebuttal, the evidence of Mrs Sprules was accepted by the Employment Tribunal, and contrary, it is submitted by Mr Smith, to Mr Sara the Chairman's letter to the Employment Appeal Tribunal commenting on Mr Gittens Senior's affidavit sworn on these proceedings. That finding of fact, that is to say the acceptance of Mrs Sprule's evidence, does appear in Paragraph 6 of the Employment Appeal Tribunal reasons, and further, at the end of that paragraph the Employment Tribunal say this:

"Indeed if they, the Respondents, had wished to do so they could have taken more serious action against him, (the Appellant) for being seen out and about while off sick".

7. The thrust of the Appellant's case under this head of the appeal is that the Chairman did not deal with the surprise evidence of Mrs Sprules in a procedurally fair and even-handed way. As a result a finding was made against the Appellant on an issue on fact in relation to whether or not he was walking out when supposed to be off sick and, submits Mr Smith, that had an important bearing on the subsequent findings of fact by the Employment Tribunal. In particular, their rejection of the Appellant's case that management, in particular Ms Rachel Haley, had shown vindictiveness towards him.
8. As to the second head of appeal, that relates to the Employment Tribunal findings that any breach on the part of the Respondent was waived by the appellant continuing to work after November 1997 until February 1998. The point here is that it is submitted that there was here a case being advanced on behalf of the Appellant of a cumulative series of acts which together amounted to a fundamental breach, based on the principles to be found in the Court of Appeal decision in Lewis v St Motor World [1985] IRLR 465, and that case was not properly considered by the Employment Tribunal.
9. The third head of appeal relates to the conduct of the Chairman. That is dealt with in some detail in the affidavit before us from Mr Graham Gittens. We have the comments of the Chairman. We think, because we shall allow this appeal to proceed as presently constituted to a full hearing that we shall be assisted by the further comments of the Respondent. In these circumstances it seems to us that Mr Smith has satisfied us that this appeal is arguable on all grounds, not least by his submission that there was here a domino effect resulting from the first matter of complaint and permeating the remainder of the Employment Tribunal findings of fact leading to the conclusion that there was no constructive dismissal.
10. Accordingly we should permit the matter to proceed to a full hearing, it will be listed for 4 hours category C. We shall direct that the Respondent file an affidavit in response to that of Mr Gittens senior within 28 days of the promulgation of this judgement, if so advised. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged at the same time with this Tribunal.