United Kingdom Employment Appeal Tribunal

APPEARANCE

 

For the Appellant	MR BOOTH (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 
JUDGE A WILKIE QC
1. This is an appeal by Ms J Logan against a decision made by the Employment Tribunal sitting at Leeds which dismissed her claim that she had been constructively dismissed. The decision was sent to the parties on 13 March and followed a hearing on 16 and 17 February at which the Applicant appeared in person and the Respondent appeared through Mr Tucker, of Counsel.
2. The Employment Tribunal took what it recognised as a highly unusual course. It dismissed the application at the conclusion of the Applicant's case, on the basis of a submission made by Mr Tucker that at that stage the evidence disclosed no arguable case and that therefore him and his clients should not be put to the trouble or inconvenience of calling evidence in support of their contention that she had not been constructively dismissed.
3. The Tribunal made certain findings of fact which, on the face of it, were favourable to the Applicant. They concluded that by the middle of November 1997, as a result of matters of which she was complaining in the Tribunal, a position had been reached where, at that stage, the Respondent was in fundamental breach of contract, such as would have enabled her, at that stage, to have resigned and claimed to have been constructively dismissed. In fact she did not resign at that point. Her resignation took place in May 1999, in consequence of two further matters of complaint arising out of meetings held in January and in May 1999 with a member of the Respondent's staff, a Mr Ballance.
4. The Employment Tribunal acceded to Mr Tucker's submission on the basis that it was obliged to consider the effect of the prior fundamental breaches of contract, in the context of the resignation in May 1999 notwithstanding their conclusion that the passage of some 18 months from those events, in the circumstances, had amounted to a waiver on her part of her entitlement to resign, relying solely on these previous events.
5. They accepted that the decision of the Court of Appeal in Lewis -v-Motorworld is to the effect that where an entitlement to resign, in response to fundamental breaches, has been lost by waiver, but there are then subsequent incidents which the Applicant relies on, as justifying a resignation under the "last straw" principle, an Employment Tribunal is obliged to take into account those prior waived matters, and would err in law if it refused to consider those prior matters, merely on the basis that they had been waived through the passage of time.
6. However, the Employment Tribunal concluded that, in order for those matters to form part of a sequence of events, giving rise to the "last straw" principle, there has to be proximity in time or in nature between the previously waived breaches and the matters said to constitute the "last straw".
7. Ms Logan has submitted grounds of appeal in which she takes one principal point, namely that the Employment Tribunal erred in law, or was perverse, in dismissing the case at the conclusion of her case, thereby preventing her from having the opportunity of cross-examining a number of witnesses whom the Respondent would have called, had the case gone further. She attaches importance to the way in which, on a couple of occasions, the Tribunal expressed themselves in considering Mr Tucker's application, namely they considered whether the Respondents' witnesses were likely to say anything that would influence the view that they had at that point taken on a preliminary basis.
8. He says that was an erroneous approach. It is right to say, however, that in addition, the Employment Tribunal did address themselves to the question whether, if Mr Tucker had declined to call any evidence in support of his case, and they were therefore dealing with the case on the basis of the evidence, as at the end of the applicant's case, they would have acceded to her application. They concluded that, in those circumstances, they would have dismissed her application and that was one of the bases on which they record their decision to dismiss the application at that stage.
9. For the purposes of our role in this appeal, we have simply to be persuaded that there are arguable points of appeal. Ms Logan has not appeared this morning. We do not know whether that is because of travel difficulties from Leeds, or because she was never going to appear anyway. Mr Booth, of Counsel, attended on behalf of ELAAS with a view to meeting Ms Logan and offering the services of ELAAS in representing her before us. The fact that she is not here has precluded him fulfilling that role. However, by way of an amicus curiae, we requested Mr Booth, and he very kindly assisted us, in articulating and formulating the concerns which we had, in any event, formed, having read the papers.
10. Our concerns are threefold. Firstly, it is clear that this Tribunal was taking a very unusual course. It was conscious of that and it referred itself to the authorities, setting out the principles. In the course of their lengthy decision, they did address the question in the two ways to which we have already referred, namely by forming a view of whether any further evidence was likely to make any difference, as well as considering the case on the footing that Mr Tucker declined to call any evidence and were considering it on the basis of the evidences then before them.
11. It may be that by expressing themselves in these two ways, this Tribunal has strayed into error. We can and do form no final view on that, but we are satisfied that this point is arguable. In any event we think it would be wrong for an appeal in relation to such a decision to be taken without the Employment Appeal Tribunal having the advantage of submissions of both sides.
12. The second point is that the Tribunal concluded that in any event, the final two matters of which complaint was made, namely the interviews with Mr Ballance did not constitute any conduct which could form part of an adverse course of conduct, giving rise to the "last straw" principle. On the face of it, that is a finding of fact and therefore would be unassailable. However, there is nowhere in the Tribunal's decision any statement of what it found, as matters of fact, happened at those meetings and on the basis of which findings of fact they concluded that those incidents could not have constituted a "final straw" in any event. It may be that omission in the decision falls foul of the requirements as to the sufficiency of reasons imposed by the law. Again, we do not have to form any conclusion other than that this point is arguable and we accept that it is arguable.
13. The third ground for concern is in respect of the application by this Tribunal of the case of Lewis -v-Motorworld. The Tribunal acknowledge that on the fact of it, Lewis -v- Motorworld is a decision in favour of the Applicant, namely that the Tribunal was obliged to consider all incidents, including those which may have been waived by the passage of time, in considering whether the "last straw" principle applied. They declined, however, to do so on the basis that the previous incidents, some 18 months before, were insufficiently proximate, or similar to, the "final straw" incidents, so as properly to be considered in conjunction with them. This does not replicate the language in Lewis -v-Motorworld. In that case the EAT had in mind the requirement that there be a course of conduct, the cumulative effect of each incident in which gave rise to an entitlement to resign on the "last straw" principle.
14. It may be that the way in which the Tribunal expressed itself in distinguishing Lewis -v-Motorworld contained an erroneous approach. We do not express any view on whether that is right or not, save to say that we are persuaded that it is arguable that the Tribunal may have adopted an erroneous approach.
15. Therefore it follows that we are persuaded that there are arguable points sufficient to justify this case going forward to a full hearing. We have identified three areas of concern and have sought to articulate them for the assistance of the Employment Appeal Tribunal panel which finally hears this appeal. In formal terms, however, we ought to give leave, and we do give leave, to Ms Logan to amend her Notice of Appeal in order to incorporate these additional two points, over and above the one which she articulated in her Notice of Appeal. We will give her 28 days from the date on which this decision is sent out to her in order to amend her Notice of Appeal accordingly.
16. The Respondent, in this matter, has indicated that they think that it would be desirable that the Chairman's Notes of the Appellant's evidence should be furnished, on the basis of the assertion that the Chairman failed to identify the serious and continual breaches of contract leading to the constructive dismissal, which was concealed in the Respondent's substantial documentation. We have not articulated that as a ground of appeal which we think merits further consideration by the Employment Appeal Tribunal, although it does go to the general issue of the Tribunal dismissing the case at the conclusion of the Applicant's evidence. In the light of what we have said about the sufficiency of the reasons given by the Tribunal, it seems that it would be desirable for notes of her evidence to be before the Employment Appeal Tribunal which deals with this. We therefore order those notes to be provided. This is a case which ought to be listed for a day, category C.