United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


LORD JOHNSTON: This is a preliminary hearing in an appeal at the instance of the appellant/employee against a finding by the Employment Tribunal, after a protracted hearing on evidence, that he had not been constructively unfairly dismissed nor that he had been discriminated against on grounds of race by his employers. As I have indicated, the judgment of the tribunal runs to some 60 paragraphs over some 40 pages and explored at length a considerable number of issues, determining the main ones against the position of the appellant, hence his appeal.

1. The appellant appeared before us in person and itemised certain matters upon which he focused what, he perceived, to be questions of law which would entitle this appeal to go forward to a full hearing.
2. In the first place the appellant disputed the correctness of the tribunal's decision effectively to exclude from its consideration on the question of dismissal a number of historical matters going back a number of years prior to the transfer by the employer of the appellant to their branch at Syon Park, having previously worked for them at Thames Ditton. The tribunal determined, against the background of authority, that for a proper determination of issues that were properly before them, the opening up, to the extent that the appellant wished, of the historical background, would produce a hearing of unmanageable proportions. In this respect, we refer particularly to paragraph 6 of the tribunal's decision.
3. That apart, the appellant also maintained that there were material inconsistencies in the tribunal's reasoning which vitiated the ultimate results that the tribunal came to on the question of fact. He was concerned about the position again before his transfer and the question of his experience or lack of it. He was concerned that the tribunal had acted oppressively in the way they had looked at the evidence and had thus contradicted themselves on certain matters which they should have taken into account in reaching an opposite conclusion. He therefore maintained on that ground alone, that there were matters to be investigated at a proper hearing.
4. The appellant went on to submit that there were a number of material facts which had not been taken into account, which is a perfectly acceptable general proposition of law if it can be made out. In this respect he was concerned with the way the tribunal had dealt with the issue or question of his portfolio once he started to work for the respondents from Syon Park. He was concerned about the way that the tribunal had handled the position in relation to his pension dispute and also his retirement dispute. He maintained that the tribunal had not properly applied their minds to the issue of general harassment which bore upon the final issue of the matter, namely the reasons for his departure from his employment.
5. The appellant was concerned that the suspension that was imposed upon him as punishment for the particular matter involving a Mrs Squelch had not properly been gone into. Nor was he satisfied that the disciplinary hearing was properly carried out and complained, particularly, that the compliance inspectors had never interviewed him in relation to the charges against him.
6. In addition, the appellant was concerned that the Chairman of the tribunal had exhibited bias towards him, this being apparent from the way he had been selective in the way the Chairman had approached material matters upon which the appellant had relied in representing himself before the Employment Tribunal.
7. Finally and fundamentally he submitted, with all these factors taken together and together with the history, resulted on a proper view of the matter, the appellant being placed in an impossible position, as far as his relationship with his employer was concerned, entirely through the fault of his employer and accordingly, he had felt compelled to resign in the context of the circumstances set out in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, which had the result of establishing constructive dismissal.
8. The appellant also submitted a considerable volume of paper which we have studied without the necessity of going into it in open hearing before this tribunal.
9. We consider that the tribunal was more than entitled to take into account or take out of account, perhaps, for the reasons they give the historical background to the matter against the background of the case of Chattophadhyay v Headmaster of Holloway School [1982] ICR 132, and we would not criticise the approach of the tribunal in paragraph 6 of their decision.
10. With regard to the inconsistencies that are alleged to exist, we have read the tribunal's findings with some care and while, of course, there are matters which can be pointed to in contrast to another, we consider that it reads fairly and well over the extensive area of evidence that the tribunal had to cover and we are not persuaded that any of the matters raised by the appellant in this context are made out so as to amount to an error of law.
11. With regard to the separate issues which we have listed in relation to the material facts issue, we consider the question of the portfolio was adequately dealt with at paragraphs 34 and 35 of the decision; the issue of the pension is adequately dealt with at paragraph 26; the retirement issue is more than adequately dealt with in the following paragraph. We cannot interfere with, since it is the Employment Tribunal's privilege, having assessed the evidence, their overall finding as to the extent to which there was or was not harassment, since it was essentially a matter of credibility.
12. We find nothing established which would suggest an error of law in relation to the issues of the suspension or the disciplinary hearing. Nor are able to take any further the allegation of bias against the tribunal Chairman, which is not apparent on the face of the decision.
13. Having said all that, it is however our position that this case is, fundamentally, an issue of constructive dismissal. The employee/appellant resigned from his post. If he is therefore going to turn that into an unfair dismissal, he must satisfy us, the tribunal did not correctly apply its mind to questions as far as the question in the Sharp case is concerned and had reached their conclusion that there has been no constructive dismissal on inadequate or irrelevant material.
14. Looking at the way the tribunal have approached this matter, we are quite unable to conclude that they were not entitled to take the view that the facts that they found proved did not establish that the appellant had been subjected to any form of material breach of contract which entitled him to treat himself as constructively dismissed. We note that the tribunal's final finding in paragraph 63 that they were satisfied the appellant was in fact treated leniently and reasonably. We have to record against that background that the issue of racial discrimination has also been adequately dealt with by the tribunal, in our opinion, for the reasons they give, particularly toward the end of paragraphs 61 and 62.
15. In these circumstances, while we recognise genuine grievances obviously held by the appellant and the extent to which he is concerned about the position he found himself in, we are unable to find any material facts or factors in this case consistent with the position that the tribunal were not entitled to reach the decision which they did. We consider that the tribunal have given a very fair and extensive consideration of some complex issues and in these circumstances, concerned as we would be that if this appeal was to be allowed the whole matter would have to start again, which is not an irrelevant public interest consideration when looking at the sort of issues that have been placed before us, the system being required to do justice to both parties in the dispute, there is no justification in ordering such a result.
16. In these circumstances, we do not consider that this appeal raises any question of law at this stage or any stage of its progress which would warrant a full hearing. It will therefore be dismissed.