United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE COLLINS

1. This is the preliminary hearing of an appeal against the decision of an Employment Tribunal sitting at Exeter. The Tribunal promulgated extended reasons on 5 July 2000 and by its decision it dismissed the Appellant's application that he had been constructively dismissed and that that dismissal was unfair.
2. The decision of the Tribunal recites a long and detailed history of problems between the Appellant and the Respondents. He was an office manager employed by them from 26 June 1995 until 6 December 1999 when he sent a fax resigning for the reasons which he gave. It is clear that towards the end of the business relationship between these parties there was a good deal of mutual distrust arising from what the Appellant considered to be broken promises and untrustworthy conduct on behalf of the employers. Essentially the Tribunal held that in relation to all those matters of which complaint was made in some 64 pages of statement by the Appellant, a good deal of his allegations were immaterial and a lot of the other matters, while they may have given rise to concern in the Appellant's mind, did not amount to any breach of the employers' obligations.
3. The matter which brought the relationship to a head was a failure by the Respondents to pay sick pay in response to a doctor's note which has been provided by the Appellant for reasons which are set out in the Tribunal's decision. The Respondents indicated that they had a lack of trust in the bona fides of the Appellant's sickness and wanted a doctor's report of their own. The Appellant agreed that there should be a medical report commissioned on the basis that he would be paid sick pay if he gave his consent for that. He gave his consent but the pay was still withheld. On 6 December he said that the failure to pay was a repudiatory breach of contract. He was constructively dismissed. He accepted the breach and resigned with immediate effect.
4. For the reasons which the Tribunal gave, they held that there was no breach of contract in failing to pay sickness pay. If there was a breach of contract they did not consider it to be repudiatory in effect. In any case they held in the final paragraph of their decision that had Respondents' conduct been repudiatory they acted reasonably and fairly in accordance with equity in the substantial merits of the case although it has been pointed out that they identified no facts and gave no reasons for coming to that conclusion.
5. The notice of appeal, and Mr Charles has kindly apologised to us this morning for it, runs to some 17 pages of closely typed material, but he has conveniently summarised the grounds at pages 17 and 18 in our bundle. The first matter I should deal with is the question of bias. This falls into 2 areas. The first is that the Trade Union member of the Tribunal apparently worked in the same office building as Mrs Charles and objection was taken to his being involved in the hearing. As Mrs Charles accepts the decision was unanimous one and it is unlikely in those circumstances would have been any different if Mr Pitcher had taken a different view of the case.
6. There is in fact no material which has been placed before us to suggest that any knowledge that the Trade Union member might have had of Mrs Charles could have affected the result of the case in any way. Particularly in a town which is not one of the largest there is an obvious risk that members of the Tribunal will have some passing brush or even passing acquaintance with somebody involved in the case. In the absence of any specific reasons to suggest bias it would be in our judgment wrong for it to be assumed that such passing acquaintance could lead to bias one way or the other. There is no specific matter which is addressed in the case suggesting any possibility of bias and we think there is nothing in that point.
7. The other matter is this. Mr Charles was concerned that for reasons which are wholly unknown and circumstances which are wholly unknown the decision of the Tribunal became known to the Respondents before it was promulgated. The Respondents' solicitors do not accept that and the Chairman of the Tribunal has made it clear that he is quite unaware of any circumstances in which that could have been the case. We are not in a position to make any findings of fact. All that it is necessary for us to say is that there is no material which has been put before us in relation to this aspect of the matter which suggests any bias or impropriety on the part of the Tribunal and we see no arguable point of law in this connection.
8. The 2 main areas which Mr Charles urges upon us today relate firstly to the general approach of the Tribunal towards factual matters and secondly the way in which the Tribunal dealt with the question of sick pay. Mr Charles has attacked the decision of the Tribunal in very great detail in relation to the way in which it dealt with the evidence. He says that the Tribunal failed to have adequate regard to the matters which he set out in his statement and they failed to approach the evidence in a reasonable way. He goes so far as to assert that the decision of the Tribunal was perverse to the extent that they were wrong in law and we should order a fresh hearing.
9. It is clear from the reasons of the Tribunal they considered all 64 pages of Mr Charles' statement indicating they found a lot of it irrelevant and it is also clear that they took an even handed view towards the evidence. They found neither Mr Charles nor Mr Ellis to be satisfactory witnesses for the reasons which were given. There is no suggestion that they treated Mr Ellis more favourably than they did Mr Charles. Mr Charles found it difficult to understand why the Tribunal did not regard him as an entirely helpful witness. That is unfortunate but it is a matter on which we are not capable of intervening. It was a matter for the Tribunal to judge the credibility of the witnesses. The criticisms are many and we do not propose to rehearse them in this judgment. They set out in detail in the notice of appeal and in Mr Charles'skeleton argument. Suffice it to say that in our judgment all matters of fact which were dealt with by the Tribunal whether to Mr Charles' satisfaction or not were matters which the Tribunal considered in relation to the evidence which was placed before them and in our judgment they were entitled to come to the factual decisions to which they came.
10. I now turn to deal with the matter in respect of which there is a clear point of law which Mr Charles focuses on. We are told that the question of his entitlement to sick pay was not put in issue before the Tribunal. What the Tribunal considers is the reasonableness of the employer's actions in withholding sick pay pending further investigation having regard to the history which they set out in detail. But as to Mr Charles's entitlement to the sick pay there is no doubt and it is the fact that the Respondent did not make the payment to which he was entitled until after he had sent his letter of resignation even though by that stage they had not received the independent medical which they had insisted on.
11. In our judgment there is an arguable point of law here which ought to be considered by the Tribunal at a full hearing. The questions being whether or not the Respondents were in breach of contract in withholding sick pay, whether that breach of contract was one which the Appellant was entitled to regard as repudiatory. If the Appellant were to succeed, the question of whether or not the employers acted reasonably in all the circumstances of the case would doubtless have to be investigated since the Tribunal does not give reasons or identify the facts on which it comes to the conclusion which it did in the final paragraph of their reasons.
12. So that on that ground and that ground alone we will direct that the matter proceed to a full hearing. We will direct that it be listed under Category C. The time estimate of 2 hours. Skeleton arguments to be exchanged 14 days before the hearing.