United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M CHAMBERLAIN (of Counsel) Leeds Citizens Advice Bureau Westminster Buildings 31 New York Street Leeds LS2 7DT
For the Respondents	MR N BOOTH (of Counsel) Instructed By: Denison Till Goodbard House Infirmary Street Leeds LS1 2JS


 


JUDGE J ALTMAN:

1. This is an appeal from the decision of the Employment Tribunal sitting at Leeds on 3 June 1999, when the application of the Appellant was dismissed on the ground that there was no case to answer. A submission to that effect was made, essentially at the end of the Appellant's case. I say essentially because it appears that the Tribunal had read the Witness Statements of the Respondent, Michelle Hawtin, and of the witnesses for the Respondent company and had read the bundle of documents, of the contents of which we really know nothing.
2. The first thing that has concerned us has been our approach to this decision. The decision was one of a very experienced Chairman and very experienced Members and we know that no Tribunal will respond lightly to an application to dismiss a case before the Respondents have given evidence, let alone go on to allow such an application unless they consider very telling arguments to be available.
3. We are conscious that in assessing the issues raised in this appeal we have had to base our judgment essentially on the face of the Extended Reasons as prepared by the Chairman and we are indebted to Counsel, neither of whom appeared before the Employment Tribunal to reach an assessment of the way, on the face of the Extended Reasons, the submission of no case to answer was analysed.
4. The arguments put forward on behalf of the Appellant relate to the finding of the Employment Tribunal that there was no case to answer as to the existence of a breach of contract such as to give rise to constructive dismissal, in other words, of repudiatory conduct.
5. There has been some discussion also as to the particular grounds of appeal, following the earlier decision of the Employment Appeal Tribunal, that should be taken on this appeal and, on behalf of the Respondent, we are conscious that Mr Booth, who has argued the case very fully, may have felt under some disadvantage in that the essential matters canvassed before us were not specifically focused upon following that judgment. Nonetheless, the matter has been argued on grounds of law, which are properly argued, it seems to us, within the original Notice of Appeal and they are essentially two.
6. First of all, it is alleged on behalf of the Appellant that the Employment Tribunal did not make findings of fact as to the case of the Appellant in relation to the ingredients which, she had maintained, constituted the repudiatory conduct of the Respondents over a period of time, and that in reaching the decision that there was no breach of contract they did not link such a finding to their view of the evidence on these matters. In effect, it is argued, that in order to dismiss the application at this stage the Employment Tribunal would have had to say, "even if the Appellant is right about what she says and the seriousness of what she says and the effect upon her, that could not lead us to find a breach of contract, either expressly or by implication".
7. The second matter that is raised is the reference by the Employment Tribunal to the fact that they had read the Witness Statements of the Respondents. We are sure that in the paragraph in which the Employment Tribunal set out all the matters that they had considered, both the written and oral material, they were indicating the volume of factual evidence which they had fully considered.
8. Turning to the first matter that is raised, it is pointed out by Mr Chamberlain for the Appellant that there were three areas of the Appellant's relationship with the Respondents that gave rise to allegations. First, there was the increase in her workload to such an extent as to make it impossible for her to meet targets and, by implication, the increase in workload was to an unreasonable extent; secondly, that the temporary Manager, Michelle Hawtin, undermined the Appellant's position in relation to pressure and targets, and thirdly, that the Respondents withheld the last pay cheque of the Appellant before Christmas (contrary to company practice) because she had not reported sickness absence.
9. In their Decision the Employment Tribunal set out in paragraph 4 the submissions of the Appellant's representative as follows:

"4 … there had been a breach of contract and that that was the stoppage of pay on 18 December 1998 and that also there had been a breach of mutual trust and confidence."

10. In paragraph 5, having set out the framework of the period of employment, the Employment Tribunal deal with the failure to make the concessionary early payment in the month before Christmas. They find as a fact that the Appellant had not phoned in during her sickness absence and they find as a fact that there was a rumour of which the Appellant was aware that she was going to leave her employment, matters which presumably were not in the end contested before the Tribunal, even though the question of reporting during absence may have been at an earlier stage. The Employment Tribunal then go on then to find that there was no breach of contract in relation to it. They then go on to consider what they describe as the questions relating to her "not getting on" with Michelle Hawtin, and find that they were being dealt with by the Human Resources Department and that when a meeting with the department could not take place the Appellant decided she would resign.
11. The Employment Tribunal then conclude in saying that it is difficult to see where there was a breach of trust and confidence. They point out that sometimes this is an umbrella for seeking to argue reasonableness as a definition of constructive dismissal and they conclude as follows:

"6 …The test has to be the contract test and the Applicant has not been able to show that there was a breach of contract in this case, certainly not a fundamental breach of contract."

12. It seems to us that the Employment Tribunal were entitled properly to refer to the case of Mansfield v Yorkshire Water Authority EAT/490/85, as to the situation that arises where an Employment Tribunal is satisfied that the case is not made out before the time comes for the Respondent to give evidence. We have been helpfully referred to the case of Walker v Josiah Wedgwood & Son [1978] ICR 744 at page 753 A, where Arnold J said:

"The general approach, as we think, must be that in cases concerned with unfair dismissal, whether it be constructive dismissal or direct dismissal, the conception of submissions of no case to answer is somewhat out of place. In Buskin v Vacutech Successors Ltd (1976) 12 I.T.R. 107, in a constructive dismissal context this appeal tribunal indicated that it was always, or at any rate most often, desirable to hear both sides. …"

13. No one suggests anything other than that the Employment Tribunal were, as a matter of law, treating this as an exceptional situation. However, we are driven to the conclusion that although they established the correct approach when considering a submission of no case to answer and although they established the right test in seeking to determine whether there was a breach of contract, on the face of the decision and in setting out the factual elements, it is not apparent that the Employment Tribunal considered two matters. It is not apparent that they considered the totality of the allegations of pressure under which the Appellant seems to have alleged that she worked and it is not apparent that they considered whether the conduct, in relation to the failure to provide the pay cheque early, had within it elements which contributed to the repudiatory conduct, notwithstanding that that aspect of the Respondents' conduct, when viewed alone, may not have been a breach of contract.
14. We propose to say no more about it because, it seems to us on the face of the decision (and I have repeatedly referred to the face of the decision because that is what we are restricted to), it appears that there was an error of law in failing to address those matters.
15. So far as the reading of Witness Statements is concerned, we wonder how it is possible in practice for an Employment Tribunal to balance the right of the Respondent in the small number of appropriate cases to make a submission of no case to answer on the one hand, whilst properly preparing in advance, by reading Witness Statements, to hear a case in an Employment Tribunal on the other. It is obviously desirable that if Witness Statements are read that they should be clearly ignored for the purpose of considering such a submission of no case, for otherwise witnesses have the benefit of giving their evidence effectively free of cross-examination for the purposes of such a submission. In any event, in this particular case, it seems to us that the statements probably did not alter the facts before the Employment Tribunal very greatly. However, it does seem to us that unless an Employment Tribunal is able to make it clear, on the face of the decision, that if they have read Witness Statements in advance they form no part of their decision, that a decision such as this is liable to be challenged on the ground that, although the submission should be made at the close of the Appellant's case, it appears to have been made with some consideration of the evidence of the Respondents.
16. We say no more about the matter than that it seems to us, in the light of our finding of an error of law, that the appeal should be allowed. This matter must be remitted to be heard afresh by a differently constituted Employment Tribunal.
17. We wish to emphasise that we are far too remote from the events or the evidence about them to have formed any view as to the merits, one way or the other, of either party's case.