United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M FORD (OF COUNSEL) MESSRS THOMPSONS SOLICITORS CONGRESS HOUSE GREAT RUSSELL STREET LONDON WC18 3LW
For the Respondent	MR P GREEN (OF COUNSEL) MESSRS SHOOSMITHS SOLICITORS THE LAKES NORTHAMPTON NN4 7SH


 


HIS HONOUR JUDGE D PUGSLEY: This is an Appeal for the decision of the Northampton Magistrates Courts Committee v Mrs Turner, Mrs Turner was the Applicant in the case below.

1. The extended reasons were sent to the parties on the 24^th February 1999. This Tribunal considered whether there was an arguable point on the 21^st June 1999. In the judgment of His Honour Judge Altman, and Lord Gladwin of Clee and Mrs Vickers, at paragraph 2 of that judgement, His Honour Judge Altman said this:-

The arguments on both sides were set out in the decision of the Employment Tribunal. The Employment Tribunal then set out their findings, first that there was no dismissal. Secondly, they found that there was no breach of contract in requiring the Appellant to leave early. Thirdly, the Employment Tribunal found that there if there was a breach of contract, then it was not "accepted" by the Appellant. Fourthly, they simply dismissed the application. But they did not in their conclusions identify those arguments of the Respondents, which they accepted and those, which they rejected and that may give rise, it seems to us, to be a matter that is worthy of argument.

2. The exact ambit of an Industrial Tribunal's role is one that has been extensively canvassed in various cases. It is generally conceded that perhaps the most elegantly clear exposition of the role of the Industrial Tribunal, is contained in the judgment in the Court of Appeal case 1987 IRLR 251 Meek v City of Birmingham District City Council where Bingham L.J. said this:-

It has, on a number of occasions, been made plain the decision of the Industrial Tribunal is not required to an elaborate formalistic product of refined legal draftsmanship. But it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach their conclusions, which they do on those basic facts. The parties are entitled to be told where they have won or lost, there should be sufficient account of the facts and the reasoning to enable the EAT or on further Appeal this Court to see whether any question of law arises.

3. Various other cases could be cited for that basic proposition. Sir John Donaldson said in Martin v MBS Fastenings (Glynwed) Distribution Ltd (1983) ICR 520:-

"The duty of an Industrial Tribunal is to give reasons for its decision. This involves making findings of fact and answering a question or questions of law. So far as the findings of fact are concerned, it is helpful to the parties to give some explanation for them but it is not obligatory. So far as the questions of law are concerned, the reasons should show expressly or by implication what were the questions to which the Industrial Tribunal addressed its mind and why it reached the conclusions which it did, but the way it does so is entirely a matter for the Industrial Tribunal".

4. In this case, the background is an extremely sad one in that the Applicant was a person who had worked for the Northamptonshire Magistrates' Court Committee for a number of years. It appears from the decision that she was not happy in her work and she, in due course, resigned. As we understand the position, her resignation was not a prelude to any Industrial Tribunal proceedings. Mr Clarke, the Chief Executive, was not surprised when a letter came saying:-

"I am writing to advise you that I shall be leaving the employment of the Magistrates Court Committee on Friday 3^rd July after 19 years. Yours sincerely".

She submitted that resignation in writing on 27^th May. The Applicant felt that the job was becoming increasingly difficult because of the lack of resources.

5. On the 1^st June 1999 according to the findings made by the Tribunal. The Applicant sent a memo showing at page 12 of bundle A1 stating:-

On 27^th May I wrote to you, giving in excess of four weeks notice that my employment with the Magistrates Court Committee will terminate on 3^rd July 1998.

Please confirm your acceptance of the above as I require to make arrangements in respect of my pension and I am unable to do so until you confirm receipt of my notice.

6. Mr Clarke on 4^th June responded in this way:-

Thank you for your letter of resignation. I am replying on the first operative day on the notice, as prior to today, your letter would only be indicative of your intention rather than a formal letter of resignation:-

By the effective date of your departure on 3^rd July 1998 you will have worked for the Northampton Magistrates Courts Service for just over 19 years. I believe I have worked with you for over 15 of those years. I note from Quality matters that you intend to take a break before considering your future and that you will not be heading straight into other employment. In view of your approaching holiday period and in reflection of your years of service I am releasing you from your employment today. This will mean that you will still be paid in full until the 3^rd July, 1998 but you are not required to work your period of notice. This will give you further time to consider your future and to enable you to fully relax on your holiday.

On behalf of the Committee can I thank you for your work over the past 19 years and wish you well for the future".

7. In evidence to the Tribunal Mr Clarke said the reason why he decided to allow the Applicant not to work her notice was he had heard on the grapevine about remarks of the Applicant's intention now that she was going to be less restricted in broadcasting her view about the management. He was concerned about what she may say might have adverse effect on the department.
8. This Tribunal has abundant experience of the way in which sometimes on redundancy exercises, sometimes on other exercises, long serving employees are treated with total contempt by their employer. It is within the knowledge of the members of this Tribunal, people who have been in service for years and years and years, who are unceremoniously escorted out of the undertaking. Sometimes a senior member of management is given just a plastic bag binliner to put his or her personal items in.
9. The Applicant was very upset by what happened, but we ought to say, that in our view, we do not think Mr Clarke can be criticised for that letter. Although he had his own private reasons for writing it, it was not a letter forbidding her to work; it was pointing out the employers were not requiring her to work although it might be said to be ambiguous.
10. What happened therafter though, it is a different matter. It is a matter about which, if we may say so, the Tribunal decision is not particularly illuminating. Mrs Turner wanted to stay on until the time when she went on holiday. She was greatly upset, she was unhappy about leaving and according to the Originating Application she says she was told that if she did not leave at 9.30 am, that she would be escorted out. We regard what has happened on that morning, on 4^th July, after she was given that letter as vital information to set the whole basis of what had happened.
11. In paragraph 2 onwards, the Tribunal have in a number of sub paragraphs set out what they call findings of fact. We were bound to say that some of those "findings of fact" are just a "recitation" of the evidence, without being a finding as to whether it is accepted or not. It is very difficult to find out exactly what happened, which lead to her leaving because "findings of fact" and "recitation" of the evidence are intermingled in paragraph 2.
12. We have the gravest difficulty in understanding the basis upon which this decision is reached. There is, in our view, a failure to set our sufficient findings so that the decision falls below the standard set by Lord Justice Bingham in Meek. There is no factual matrix as what happened immediately after she received the letter from Mr Clarke. We have considerable difficulty in seeing how the Tribunal, on the basis of the facts they have found, could reach a decision, adverse to or in favour of the Applicant.
13. Since there is a paucity of findings we can only speculate but among the issues which we would have expected the Tribunal to have made findings about are the following:

What was said to the Appellant when she was given the letter and in particular was it made clear that she had to leave the premises and was she forbidden from returning to the premises?

Was the Applicant told that she would be escorted off the premises?

The letter from Mr Clarke told the Applicant that she was not required to work: was there ever an occasion when this was converted to the proposition that she told expressly or by the implication that she was required to leave the premises?

14. Sir John Donaldson M.R. in the case of Martin v MBS (Glynwed Distributions Ltd) which was already been cited stated at 519:

"Whatever the respective actions of the employer and employee at the time when the contract of employment was terminated, at the end of the question always remains the same, "Who really terminated the contract of employment?" If the answer is the employer, there was a dismissal…. If the answer was the employee, a further question may arise, namely, "Did he do so in circumstances such that he was entited to do so without notice by reason of the employer's conduct?". If the answer is "Yes", the employer is nevertheless to be treated as if they has dismissed the employee, notwithstanding that it was the employee who terminated the contract."

15. There is simply no factual analysis which permits these questions to be answered. Furthermore the whole tone and tenor of the decision fails to meet the requirements of the Meek

test in that it simply does not analyse the arguments before the tribunal. For example in terms in Paragraph 10 the Tribunal say this:

"It was argued that if the Applicant was not expressly dismissed then she would have to show dismissal in some other way. Could it be shown that the refusal to allow her to work her notice in itself constituted a dismissal?"

The Tribunal did not answer this question in their conclusion in Paragraph 18 or give any indication they had considered it other than to say at Paragraph iii)

"If there was a breach of contract, which the Tribunal did not find, then in any event the Applicant did not accept the repudiatory breach in any legal sense."

16. Quite simply this is a decision in which the Tribunal have on the basis of their decision made no reasoned and considered analysis of either the evidence or the legal arguments put to them. They have for the most part merely recited the background evidence without any attempt to set out their findings of fact and recited the submissions made to them without any attempt to state why they accepted the submissions of one side as opposed to conflicting submissions. In a nutshell their conclusions have become their reasons.
17. We have of course reached our own assessment of this case. We are fortified in this case to note that our conclusion was clearly foreshadowed by the judgment of His Honour Judge Altman at the preliminary hearing.
18. We are bound to observe that considering that the Appellant was going to leave in any event we would have thought that some discussion as to whether this matter can be resolved without further litigation may be appropriate. This is a matter which we can suggest but not order.
19. We allow the appeal and direct that the matter be heard before a differently constituted tribunal.
20. The Respondent's application for leave to appeal is refused at this stage it can be renewed when the full written reasons are given.