United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR V CLARK (Representative)
For the Respondents	MR JONATHAN SWIFT (of Counsel) Instructed by: The Solicitor Watford Borough Council Town Hall Watford WD1 3EX


 


JUDGE PETER CLARK: This is an appeal by Mrs Audrey Clark, the applicant before the London (North) Employment Tribunal sitting on 4th November 1998, against that tribunal's decision, reached at the close of the appellant's evidence, dismissing her complaint of unfair constructive dismissal. That decision was promulgated with extended reasons on 20th November 1998. A further complaint of sex discrimination was also dismissed. There is no appeal against that finding.

The Employment Tribunal hearing

1. The appellant was represented by her husband, Mr V Clark. The respondent Council was represented by a solicitor, Mrs Chen.
2. We see from the Chairman's Notes of Evidence that the hearing commenced at 10:10 a.m. The appellant was the only witness heard by the tribunal. She read her witness statement and was asked further questions by Mr Clark. She was then cross-examined by Mrs Chen and questioned by the tribunal members from 10:40 a.m. till 12.20 p.m.
3. At the close of the appellant's evidence the tribunal of its own motion, through the Chairman, Mrs J R Hill, raised the question as to whether the respondent had no case to answer. They heard submissions from Mr Clark, did not call on Mrs Chen, and then dismissed the complaint. In these circumstances the respondent called no evidence. In a letter to the appellant dated 21st July 1998 the respondent's solicitor had indicated that the Council intended to call Janet Moakes, Yvonne Brain and Sheila Ryde-Weller.

The evidence

4. Since the tribunal heard only from the appellant we shall summarise her evidence.
5. She commenced employment with the Council as a part-time telephonist/radio operator at their Wiggenhall depot on 11th February 1985, working a five-hour shift each day from Monday-Friday.
6. On 1st April 1995 she describes herself as being promoted to Administrative Assistant to reflect the range of her duties at that time. She said that the administrative content of her work had become substantial.
7. In May 1997, as a result of a reorganisation, a new manager, Mrs Moakes, was appointed to the depot. At the same time the Highways Department was relocated to the Town Hall causing a drastic reduction in all aspects of the appellant's work.
8. Thereafter, her administrative work virtually disappeared. Her supervisor, Mrs Brain, knew that the appellant liked to be kept busy, but she was expected to stare at blank walls for 3½ to 4 out of her five-hour working day. She covered the switchboard. When she asked Mrs Brain for work she was told "I've got nothing to give you".
9. By November 1997 there had been no improvement in the work. The appellant found herself suffering palpitations and driving home in tears. She arranged a meeting with Mrs Moakes.
10. That meeting took place on 24th November 1997. Mrs Moakes appeared supportive. She said there was "oodles of work". However, when Mrs Brain returned from leave, and the appellant passed on Mrs Moake's comment, Mrs Brain replied "Really. I don't know where".
11. After the Christmas break the appellant spoke to the personnel officer, Ms Ryde-Weller on 13th January 1998. The appellant said that she was desperate and asked what she could do. Ms Ryde-Weller replied "Audrey, there is no work". When the appellant said that she had been told by Jane Moakes in November that there is oodles of work, Ms Ryde-Weller replied "Jane is a waffler. I have talked to managers down here as well as Yvonne (Brain) and there is not enough work".
12. In cross-examination the appellant gave these, among other answers. "I waited for administrative duties – no work for me. Mrs Moakes was looking at everything. Came up with no work. Ms Ryde-Weller said she would give me work if she could. Switchboard was there and had to be answered. Nothing else to offer me".
13. On 15th January 1998 the appellant had had enough of her inactivity. She told Ms Ryde-Weller that she was going home under stress. She never returned to work, being certified sick by her doctor.
14. On 9th February 1998 she attended a meeting with Ms Ryde-Weller and Mrs Moakes. They asked her to cover the switchboard; the appellant said that it was unreasonable to expect her to sit doing nothing for hours on end. Ms Ryde-Weller: "We don't know what to give you". A suggestion of possible redundancy or redeployment was mentioned.
15. On 9th March 1998 she met with the Director, Mr Alan Clarke and Mrs Moakes. They were unable to assure her that if she returned to work she would be kept occupied.
16. Correspondence followed between the appellant and Mrs Moakes, but no positive solution to the work problem was offered. The appellant felt that she had to resign to alleviate her stress. She did so by letter dated 30th March 1998, effective on 12th April.
17. She contended that it was inconceivable that an organisation the size of Watford Council was unable to find three to four hours of administrative work for her on a daily basis. She relied on the Council's Statement of core values, which referred to developing the employees' abilities, motivation and capacity to perform at the levels required, and summarised her case at paragraph 45 of her witness statement in this way:

"I was unfairly dismissed. The Council were unilaterally trying to demote me by forcing a change in my role from Administrative Assistant to Telephonist. The treatment I received from my management, fell well short of that required by the Council's own Statement of Core Values and its Health and Safety Policy and was a clear case of constructive dismissal."

The Tribunal Decision

18. The core of the decision is to be found in paragraph 9 of the tribunal's reasons where they say this:

"At the conclusion of the Applicant's evidence the Tribunal indicated that they were unable to see from the evidence that a breach of contract had been disclosed from the evidence as required by the case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221. They further considered that no evidence had been adduced which demonstrated that the Applicant had been treated to her detriment on the grounds of her sex. The Applicant's representative was given the time to consider these comments in order to clarify the issues for the Tribunal. Having heard Mr Clark, the Tribunal concluded as follows. It was clear from the Applicant's evidence that within the Wiggenhall deport the level of work had diminished greatly. The amount of administrative work available to the Applicant was greatly reduced and it was not possible for the Respondents, by the Applicant's own evidence, to create work from nothing. It was further clear that the Applicant was very bored and frustrated by her inability to obtain further work, but she acknowledged that no work in fact existed. She expected however that Watford Borough Council, being a large organisation, should be able to generate some work. The Applicant in her dealings with the Council was clear that they did not wish to declare her redundant because in their minds the role of switchboard operator remained an essential role to be filled, albeit a very quiet role. There was no known time when the switchboard operator might not be required and therefore it was necessary for somebody to perform that job on a permanent basis. To spend a large amount of her working day unoccupied was not acceptable to the Applicant but the Tribunal could not identify that she was not being employed within her role, nor could they identify that there was any breach of contract by the Respondents in failing to provide work when no such work existed. Indeed, the Applicant's evidence was that when she raised issues about work they used their best endeavours to provide such work as they could locate, including giving her a computer on which she might be able to work in the future. In all those circumstances, from the Applicant's evidence there was nothing on which the Tribunal could conclude that there was a breach of a term of the contract of employment which went to the root of the contract indicating that the employers no longer intended to be bound by it. To the contrary, they clearly wished to employ her and to retain her services. In those circumstances, her resignation was not in circumstances that it could be deemed to be a dismissal within the meaning of section 95 of the Employment Rights Act 1996."

No case to answer

19. The reported cases within this jurisdiction in which the practice of stopping the case without hearing from the other side is considered are all at EAT level. The principles emerging from those cases may be summarised as follows:

(1) There is no inflexible rule of law and practice that a tribunal must always hear both sides, although that should normally be done. Ridley v GEC Machines Ltd [1977] 13 ITR 195 (Phillips J), a case of constructive dismissal.

(2) The power to stop a case at "half-time" must be exercised with caution. Coral Squash Clubs v Matthews [1979] ICR 607, 611H (Slynn J).

(3) It may be a complete waste of time to call upon the other party to give evidence in a hopeless case. Ridley 197B-C.

(4) Even where the onus of proof lies on the applicant, as in discrimination cases, it will only be in exceptional or frivolous cases that it would be right to take such a course. Oxford v Department of Health and Social Security [1977] ICR 884, 887 A-B (Phillips J). Owen & Briggs v James [1981] ICR 377 (Slynn J). British Gas PLC v Sharma [1991] IRLR 101, 106 (Wood J).

(5) Where there is no burden of proof, as under s.98(4) of the Employment Rights Act 1996, it will be difficult to envisage arguable cases where it is appropriate to terminate the proceedings at the end of the first party's case, as I said in Hackney LBC v Usher [1997] ICR 705, 713C.

The Appeal

20. The principal points taken by Mr Clark in the appeal are:

(1) that the tribunal was wrong to dismiss the appellant's case at the close of her evidence, thereby preventing him from cross-examining those witnesses whom the respondent had indicated it wished to call, and

(2) That, on the basis of the appellant's evidence, the tribunal was wrong to find that she had failed to make out her case and that the respondent was not in breach of the contract of employment, let alone in fundamental breach.

21. In response Mr Swift, to whom we are indebted for his careful and thought-provoking argument, challenges the received wisdom as to the place of the no case to answer practice in Employment Tribunal proceedings.
22. He submits that the practice in tribunals has developed over the years since Ridley. It has become increasingly adversarial, in line with the practice in the ordinary courts, rather than inquisitorial. By way of example he cited the Court of Appeal decision in Mensah v East Hertfordshire NHS Trust [1998] IRLR 531. There, the EAT allowed an appeal by the applicant against an Employment Tribunal decision on the ground that the tribunal had failed to consider allegations of race discrimination raised in the Originating Application but not pursued by the applicant before the Employment Tribunal. Allowing the respondent's appeal, the Court of Appeal ruled that there was no duty on the Employment Tribunal, of its own motion, to ensure that every allegation contained in the Originating Application is dealt with unless expressly abandoned. Mr Swift relied on the Court of Appeal approach in Mensah as demonstrating the adversarial as opposed to inquisitorial model for the Employment Tribunals.
23. In these circumstances he argued that the practice has changed since Ridley. The apparent rule laid down by the EAT cases that submissions of no case to answer should only be entertained in hopeless, exceptional or frivolous cases can no longer be justified. We should take the opportunity in this case to say either that there should never be a submission of no case to answer before an Employment Tribunal, or to leave the question of accepting or rejecting such a submission to the good sense of the Employment Tribunal.
24. He submits that the only question on appeal for us is whether the tribunal has reached a perverse decision in concluding, on the facts as they were found by the tribunal at the end of the appellant's case, that she had not made out her case that the respondent was in repudiatory breach of contract. The onus lies on the applicant to ensure that all relevant evidence is put before the Employment Tribunal. Derby City Council v Marshall [1979] ICR 731, 735G-736A, per Bristow J. Craig v British Railways (Scottish Region) [1973] 8ITR 636, 637C-F, per Sir Hugh Griffiths. Mensah, paragraphs 14-21, per Peter Gibson LJ. If she wished to rely on the evidence of the witnesses whom the respondent had indicated in correspondence they would call, then she should have called them as part of her case.
25. Applying that approach to the facts of this case he submits that the tribunal's findings of fact in paragraph 9 of their reasons, set out above, were properly made on the evidence before them. In particular they were entitled to conclude, in the light of the cross-examination of the appellant, that she acknowledged that no administrative work in fact existed for her to do. In these circumstances the tribunal permissibly found that there was here no breach of contract by the respondent, let alone a fundamental breach entitling the appellant to treat herself as discharged from further performance under the contract. In short, there are no grounds in law for us to interfere with the tribunal's decision.

Conclusions

26. We reserved judgment in this case in order to give careful consideration to the arguments advanced by Mr Swift. Our conclusions may be stated as follows:

(1) We shall not depart from the well-established principles laid down in the earlier EAT cases, first as a matter of comity and secondly because we think that they are correct.

(2) If follows that we decline Mr Swift's invitation to say that submissions of no case to answer should never be made. Experience shows that there are cases which are so hopeless or frivolous that it would be wrong to put the party going second to the time and expense of calling their evidence. It is in that sense that it is in exceptional cases that a finding of no case to answer will be appropriate.

(3) Nor are we prepared to abdicate our responsibility to adjudicate on an appeal simply by leaving the judgment to the Employment Tribunal. Just as there is a residue of cases where it can properly be said that an Employment Tribunal decision is truly perverse, there will be cases where it can be said that an Employment Tribunal has fallen into error by stopping a case at half-time. It is interesting to note that in each of the 'no case' authorities to which we have referred the EAT overturned the Employment Tribunal decision to stop the case at the end of the first party's evidence.

(4) We think that it will be rare in practice for an Employment Tribunal to stop a case at half-time of its own motion. That is effectively what happened here, as in Ridley. We accept that increasingly there is a move towards permitting Employment Tribunals to manage cases more proactively. Hence the various amendments to the Rules of Procedure in 1993 expressly permitting the Employment Tribunal to take steps of its own motion. However, for the tribunal to stop a case at half-time of its own motion is, ironically, to adopt the inquisitorial rather than adversarial approach, which Mr Swift asked us to espouse, following Mensah. It also means that the tribunal has effectively made up its mind at the end of the first party's case. Further it leaves the second party, as Mr Swift points out, with the invidious choice between discouraging the tribunal from taking that course or being left with the prospect of a successful appeal and rehearing, thus adding to the expense and delay in finally disposing of the case. The additional problem with such a course is that the losing party may be left with a feeling of injustice, that his or her case had not been fully and properly heard. There is a real risk that the perception may be given that justice is secondary to administrative pressures to dispose of cases or even, in a one day case such as this, an early day. We do not, of course, suggest that such a perception is true, but just as the appearance of bias is as significant as actual bias as a matter of natural justice so too, we think, is the need for parties to feel that they have had a fair hearing.

(5) We accept that it is for each party to bring forward his or her own case. However, it is unrealistic for Mr Swift to submit that the appellant should have called the respondent's witnesses as part of her case. Had she done so, she would not have been permitted, through Mr Clark, to cross-examine them. Their evidence was not required to fill gaps in her own evidence, but to allow her to probe the factual question as to whether there was administrative work for her to do. We shall return to this point shortly. It follows in our view that by stopping the case at half-time the Employment Tribunal effectively deprived her of that opportunity.

(6) Does any of this matter if in fact the appellant here had failed to raise even a prima facie case of breach of contract at the close of her evidence? We accept that the hopeless or frivolous case will, by definition, fail to raise a prima facie case. Can it be said that this case properly falls into that category? We think not, in the following circumstances:

(a) at paragraph 8 of their reasons the tribunal identify the appellant's case on constructive dismissal to be that the respondents had breached her contract of employment in failing to provide her with work. At paragraph 9 they find that the appellant acknowledged that no work in fact existed. Accordingly the tribunal were unable to find that there was any breach of contract by the respondent in failing to provide work when no such work existed.

(b) Mr Swift supports the tribunal's approach by reference to answers given by the appellant in cross-examination as well as in her witness statement to the effect that she was told by her managers that there was no work for her, they could come up with nothing. Insofar as those answers appear to conflict with her evidence, for example, that she was told by Mrs Moakes that there "oodles of work", or her assertion that it was inconceivable that an organisation the size of the Council was unable to come up with three to four hours administrative work for her on a daily basis, it was the tribunal to assess her evidence overall and reach a finding. That is what the tribunal did.

(c) We cannot accept that submission, nor the tribunal's approach, on the state of the evidence which was before them and the case being advanced by and on behalf of the appellant. First, the appellant having asserted that a large organisation such as the Council must have had work available for her, could not be expected to know precisely what work was in fact available. That was a matter for management. Her evidence was to the effect that on occasions she was told that there was work, on others she was told that there was not. That is not an inconsistency in her evidence but, on her account, in what she was being told by the respondent. That called for an explanation from the witnesses whom the respondent proposed to call. Secondly, the appellant's case, set out at paragraph 45 of her witness statement was not, as the tribunal summarised it, simply that the respondent had breached her contract by failing to give her work; it was that the respondent was unilaterally trying to demote her by forcing a change in her role from Administrative Assistant back to telephonist. She had contended that her appointment to Administrative Assistant represented a promotion. We understand from Mr Swift that that is not accepted by the respondent; they say it was a re-grading. That issue it seems to us could not be resolved without the tribunal hearing evidence from the respondent. Yet it appears to have been overlooked by the tribunal, who simply record, at paragraph 1 of their reasons, that in April 1995 the appellant was re-graded and reclassified as an Administrative Assistant.

Disposal

27. In these circumstances we shall allow this appeal and remit the case for a full rehearing before a fresh Employment Tribunal.