United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


MR JUSTICE HOOPER: This is an appeal from a decision of an Employment Tribunal sent to the parties on 15th August 2000. It was a unanimous decision and in the Chair was Mr Edwards.

1. We start by reminding ourselves what powers this tribunal has when considering appeals from an Employment Tribunal. This tribunal can only allow an appeal if there is some error of law or if the Employment Tribunal reaches a conclusion which is perverse, that is a conclusion which no reasonable tribunal could reach. This tribunal does not re-evaluate the facts in the case, except to this limited extent.
2. It is not suggested that there is any error of law. The thrust of the submissions, so carefully and courteously made before us, is that this is a decision which no reasonable tribunal could reach. We do not accept that.
3. We start by setting out in outline the reasons given for dismissing the application. Mrs Baker, as she is now known, made an application to the Employment Tribunal claiming against her previous employers, W H Smith plc, unfair dismissal by way of constructive dismissal. The respondent denied dismissal and alleged that if there was dismissal it was fair.
4. As Mr Edwards pointed out in his very carefully prepared decision, the facts leading up to the particular events which the tribunal were concerned were not seriously in dispute. The appellant had worked from September 1996 in the W H Smith shop at Weymouth as a shop assistant. She had helped in the cash office. As the tribunal pointed out the appellant had had extremely good reports. She had acted as a supervisor in March 1998 and the respondent accepted that her work performance was excellent. Against that background it is therefore particularly sad that thereafter things went as badly as they did.
5. At the end of 1998 there was an amalgamation between the respondent and another group of newsagents known as Menzies. It was decided as part of that amalgamation that the W H Smith store would close and that the business would be transferred to the old Menzies' shop. The appellant and one other employee moved to the Menzies' shop which was now run as part of the W H Smith group. In paragraph 8 the tribunal writes:

"The promise of the work in the cash office [for the appellant] did not materialise and the old Menzies staff appear to have given a less than enthusiastic reception to the two Smiths employees."

6. The problem about which the appellant complained to the tribunal arose much later in September 1999 or thereabouts. The tribunal found that the appellant was having a meeting with the Area Manager, Mr Bieda, and she asked that her appraisal marking should be altered to give a better marking. Towards the end of that meeting the appellant alleged to the Area Manager that she had been bullied by others. Evidence was given which the tribunal accepted that this was the first that any member of the management team had heard about bullying. His reaction was that the appellant should raise the matter with her manager, Sally Barnes. Sally Barnes saw the appellant on 15th September 1999. The appellant told Sally Barnes that another store assistant, Sylvia Wilsher, would not talk to her at all. The tribunal found as a fact that Sylvia Wilsher would talk to the appellant about strictly business matters but about nothing else. Sally Barnes arranged a face to face meeting on 16th September 1999 between the appellant and Sylvia Wilsher in the presence of a supervisor. What emerged from that meeting was that Sylvia Wilsher did not like the appellant and would not speak to her except on business terms. During this meeting, so the tribunal found, the appellant's only complaint of bullying related to the conduct of Mrs Wilsher. Following that meeting the appellant went sick and she never worked again for the respondent.
7. We summarise the findings of the tribunal on this point. The appellant first raises the issue of bullying on 10th September. Thereafter there are two meetings concerning that allegation. Although the appellant had said that she had been bullied by others, what the tribunal found was that there was only one person who it was being alleged was involved in that bullying and that was Sylvia Wilsher. Sylvia Wilsher refused to talk to the appellant except on business matters. There was no more to it than that. Likewise before us, although there is a mention in the skeleton argument of other persons bullying, the appellant has not suggested in oral argument that any other person other than Sylvia Wilsher was bullying her.
8. After she went sick and did not work again, the manager spoke to her twice on the telephone on Friday, 17th September and offered her work in the confectionery, tobacco and news department. The appellant refused this offer and said that she was going to see her doctor. The appellant wanted Sylvia Wilsher to be seen by someone. She was in fact seen on 23rd September 1999 by Mr Harrison from the Human Resources Department. Sylvia Wilsher told Mr Harrison that the staff in the book department wanted to work together, but that they found the appellant difficult.
9. On 23rd September the manager had a meeting with the appellant, her union representative and the Human Resources Manager. Following that meeting there was correspondence during October 1999 about the appellant's continued absence. The manager promised to discuss the situation with the appellant as soon as she was fit to return.
10. On 26th October the respondent received a letter from the appellant in which the appellant resigned because of a lack of response and "obvious disinterest in my welfare". The manager replied a day or so later. The manager said that she did not want to accept the appellant's resignation and wanted an opportunity to talk about a new position in the store.
11. The appellant did not reply specifically to the suggestion that she withdrew her resignation. She sent in a further medical certificate and a letter saying that she wanted a meeting. By implication, therefore, she was withdrawing the resignation which she had tendered.
12. There was a meeting on 17th November. Perhaps a little unfortunately, that meeting took place at the store rather than at some alternative venue. In paragraph 21 the Employment Tribunal writes:

"Although there is mention by the Applicant of bullying, there are no details given and again the only allegation, as before, was about Sylvia Wilsher not talking to her."

13. The manager wrote to the appellant on 26th November and explained why she could not move anyone from the book department because of their length of experience compared with the appellant's experience. She offered the appellant a position on the "fast flow tills" and invited the appellant to discuss the details with her.
14. There was then further correspondence, and on 2nd January 2000 the appellant in a letter stated that she was worried about the attitude of the staff towards her. She also asked for details of her job situation. The manager sent copies of the earlier letters and details of the job which was currently being offered to her.
15. On 10th January 2000 the appellant resigned with effect from 15th January 2000. She again alleged that she was bullied and stated that the problem had not been dealt with by the respondent. Arrangements were made for a hearing into the grievances, but the appellant, so the tribunal found, decided not to pursue the appeal.
16. All those facts were, as we say, found by the tribunal and this tribunal cannot say that any of those findings are findings which a reasonable tribunal could not properly reach.
17. It was submitted by the appellant before the tribunal that the way that her grievance about Sylvia Wilsher had been dealt with by the respondent amounted to a fundamental breach of contract. That submission was opposed by Mr Crossley who appeared on behalf of the respondent.
18. In paragraph 31 and onwards the conclusions of the Employment Tribunal are set out:

"31. We discount as stated above, the earlier difficulties which the Applicant had experienced over the transfer to Menzies shop and which she had accepted by continuing to work there. We have concentrated on the events after the Applicant, in September 1999, had complained of bullying. Although the Applicant alleged that she had a "diary of events", she did not produce that diary to her Manager, or to Mr Bieda, or, indeed, she did not produce it to us. The only complaint throughout has been that Mrs Wilsher did not speak to her.

32. We are satisfied that the Respondent did investigate the Applicant's complaint, informally at first, at the meetings in September 1999. The Applicant had the benefit of her RBA representative, and there were numerous meetings during September, October and November 1999. There was much correspondence between the parties in which the Respondent sought to resolve the issue.

33. The Applicant first resigned on 26 October 1999 at a time when she was off ill. The Respondent was offering to discuss the situation with her when she returned from sick leave. The Applicant did not take up that offer, but nevertheless she resigned at that stage, before she had returned.

34. At the same time the Respondent was seeking advice form the Occupational Health Adviser. All this illustrates an intention on the part of the Respondent to try and resolve the situation and to help the Applicant. The Respondent would not accept the initial resignation and the meetings with the Applicant continued as did the correspondence, but the Applicant remained off sick. We find that the Respondent, in accordance with the principle in McConnell's case mentioned in para. 28 above, did afford the Applicant a reasonable opportunity to obtain redress of her grievance.

35. The Applicant confirmed in her evidence to us that she really did not wish to return to the store in any capacity. However, it is difficult to know how else the Respondent could have dealt with the situation. They could not force two employees to talk if they are not willing to do so, and it appears from the evidence that Mrs Wilsher was willing at least to talk on a purely business basis.

36. The Applicant was offered a different position away from Mrs Wilsher, but she rejected that offer, indicating that wherever she worked, she would still have to face Mrs Wilsher.

37. In the circumstances we do not find that the Respondent showed any intention no longer to be bound by the contract. They continued to listen to her grievance, even after she resigned, and they would not accept her first resignation.

38. In those circumstances we do not find any fundamental breach of contract and therefore this application fails and is dismissed."

19. Central to the appellant's submissions before us were that the respondent did not take proper steps to prevent the bullying. We note, however, that there was by the Employment Tribunal no finding of bullying. The highest the matter was put at by the Employment Tribunal was that Sylvia Wilsher was only prepared to talk to her about business matters.
20. Against that background we turn to the helpful skeleton argument which was prepared for the hearing today. We asked Mrs Baker whether she was content to use that as the framework upon which she could make her submissions and she agreed that it was. We asked her if she wanted to add anything. She restated her central complaint, namely that the store did not properly integrate her and did not make sure that she was made welcome into the Menzies store.
21. The first complaint is that a lay member of the tribunal had previously worked for W H Smith. The file shows that during the morning of the first day, 18th July 2000, the appellant had given evidence and her cross-examination had begun at 12:25. During the lunchtime, one of the lay members, Mr Pardoe-Williams, said that he had been a trainee manager at W H Smith in 1963 to 1964, but since that date had had no connection with W H Smith whatsoever. Mr Edwards, as Chairman, told the appellant and Mr Crossley of this fact when they resumed at 2.10 p.m. after the lunch break. The Chairman says, in a response that he has given to these grounds of appeal, that his notes show that neither Mr Crossley or the appellant objected to Mr Pardoe-Williams continuing. In the words of the Chairman, with which we agree:

"It is perhaps regrettable that Mr Pardoe-Williams had not revealed his involvement at the beginning of the case, and he himself cannot now remember why he did not disclose it earlier. He can only think that it was because his involvement as a trainee manager had been so long ago."

Mr Crossley has also given his account of these matters. He states that the Chairman made it clear that the parties were within their rights to object to Mr Pardoe-Williams being on the panel, but that Ms Staddon, as she was known then, indicated that she was happy for the case to continue. Mrs Baker tells us that she was under considerable pressure and in a state of turmoil during the hearing and , that she was put into a difficult position by what occurred.

22. We have sympathy with that submission. Nonetheless looking at it now and taking into account that she did consent at the time, we must ask ourselves whether or not the circumstances would lead a fair-minded and informed observer knowing the facts to conclude that there was real possibility that the tribunal was biased. See Director General of Fair Trading v Proprietary Association of Great Britain & another – Court of Appeal – unreported – 21st December 2000. We take the view that a fair-minded and informed observer would not conclude that there was a real possibility that Mr Pardoe-Williams was biased in favour of W H Smith. Of particular importance is the fact that he had only worked for W H Smith as a trainee manager in 1963-1964.
23. We turn to the second ground which we read with paragraph 4b) of the skeleton argument. That concerns a document relating the merger of the two shops. It is submitted that Mr Harrison had suggested that there was such a document. According to the appellant, that document did not deal with matters concerning the merging of the staff of the two shops. We do not see that that is a matter which could arguably lead to this appeal succeeding.
24. Paragraph 4a) raises another document, namely the Harassment Policy Handbook. According to the Chairman, Mr Harrison said in evidence that the harassment policy gave advice to store managers but that he did not have the policy with him. The Chairman accepts that he may well have asked for a copy of the document, but neither party referred to it on the second day. The appellant says that Mr Harrison received considerable censure from the panel when he admitted that he had never read it. Mr Crossley says that the document was produced, but that the appellant did not raise any issues in relation to that policy during the second day of the hearing and the respondent itself did not rely on the terms of the policy. Criticism is made of the Employment Tribunal for not picking up and laying some stress on the fact that Mr Harrison had, according to the appellant, not actually read the document. The appellant also points out that there was a break between the two days, the first day being on 18th July and the second day on 11th August and she expressed her concern that that break caused the point to be lost. We take the view that that Harassment Policy Handbook does not help resolve the issues which the tribunal had to consider. The fact that Mr Harrison may not have read it, albeit unfortunate, does not in our unanimous view make it arguable that the decision of the tribunal is wrong.
25. We turn to paragraph 5 of the skeleton argument which refers to a diary. There seems to have been some confusion about the diary. We have been presented with a page (page 93) which sets out, so we are told, extracts from the diary. We do not really understand why the appellant did not place that diary before the Employment Tribunal. She says that it was difficult and stressful for her to prepare the case. Nonetheless, the central issue in the case was a complaint of bullying and we are surprised that she did not produce it. During the hearing the diary was mentioned and we will accept, for these purposes, that Mr Crossley was told that he could not demand it because he had failed to call for it earlier. Assuming that to be right, there was nothing to prevent the appellant from putting the diary in. Mr Crossley says that the respondent had previously asked for the diary, but that is denied by the appellant and we will obviously accept her denial for the purposes of this hearing. But out of an abundance of caution, we have looked at the diary and we take the view that it really would not have added very much if at all to this case. But ultimately, we take the view that the failure to put the diary into evidence was something for the appellant and not for the tribunal.
26. In paragraph 6 of the skeleton argument reference is made to the evidence of Sylvia Wilsher. Our attention was drawn to page 17 of the bundle, the notes of a meeting with Sylvia Wilsher, upon which the store relied. They show that she said that the appellant made several team members cry with her attitude towards them." The appellant "picks them up on everything". The other members are upset. One person left because of the appellant. The appellant "believes that she is the victim" and the appellant "has a chip on her shoulder". For understandable reasons, the appellant does not accept that evidence. Nonetheless, whether or not the evidence is accepted, is a matter for the tribunal and is not something which this tribunal can take into account, unless the decision of the tribunal is perverse. Before us the appellant accepted that by the end she possibly did have a chip on her shoulder, due to the failure on the part of the respondent to take proper care of her.
27. In paragraph 7a) there is reference to a statement made by Mrs Thompson (page 65-66). The appellant was concerned that the tribunal would be prejudiced against her having read the statement. The statement is not referred to in the decision and the appellant has told us this morning that in fact it was withdrawn at the hearing, albeit that it had been read. We have no doubt at all that the tribunal were able to exclude that from their mind when reaching the conclusions which they had reached.
28. 7b) raises the issue of the appraisal records. Although in 7b) the appellant seems to suggest that they turned up at the tribunal, it is our understanding that they were mislaid and one can see that by looking at 57 of the bundle in the statement of Mr Crossley. Mrs Baker makes the point that she wanted to have them before the tribunal and makes the cogent point "why would I have changed so much if I was so good when we were working at the W H Smith store, why would I have gone and changed my habits at the Menzies store?" That is a powerful submission. But, nonetheless, it is a submission for the tribunal who have to weigh it up. We understand the concern that the appellant has that these appraisal records were not produced, for whatever reason that may have been. But whatever the reason was, it cannot make any difference to this decision. We have already read out the parts of paragraph 5 of the decision, which make it quite clear that everyone had given extremely good reports to the appellant. Indeed, that is shown by the respondent's attitude when the appellant sought to resign on 26th October. The fact that the respondent did not accept her resignation and gave her alternative job opportunities, suggests that they took the view that the appellant was a particularly good worker and they were not anxious to lose her.
29. Paragraph 8 deals with wages, but Mrs Baker rightly withdrew that as a ground because it was not ground before the tribunal.
30. Paragraph 9a) is again an attack on the evidence called by the respondent. Criticism is made of the collaboration between the witnesses and it is also said that Mrs Barnes was aware "that I was being bullied by colleagues". Again, we refer back to the findings of the tribunal as to that complaint of alleged bullying.
31. It is said in paragraph 9b) that the appellant did not say that she did not want her job back. She said that she did want it back, provided that the circumstances were such that she could work in a proper manner. The Chairman of the tribunal has addressed this matter and he makes it quite clear, as indeed does Mr Crossley, that she said that she did not want reinstatement.
32. Finally, it is suggested that there was a deadline which was not met, but that does not seem to advance her case.
33. We are all agreed that this appeal must be dismissed. It has no arguable grounds. We are all agreed that the history that we have set out in some detail is a very sad history. We have considerable sympathy for the position that the appellant found herself in. Nonetheless, notwithstanding that, we cannot find any reason for concluding that there are arguable grounds for allowing an appeal.