United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A CHESHIRE (of Counsel) Instructed By: Mr K McKenna Messrs Harding Evans Solicitors Queens Chambers 2 North Street Newport Gwent NP9 1TE
For the Respondent	MISS C IVIMY (of Counsel) Instructed By: Mr S Martin Messrs Foot Antsey Sargent Solicitors The Foot & Bowden Building 21 Derry's Cross Plymouth Devon PL1 2SW


 


SIR CHRISTOPHER BELLAMY QC:

1. In this case the appellant Miss Rebecca Overton challenges the decision of the employment tribunal sitting at Stratford dated 25 January 2001 to revoke an earlier decision dated 20 September 2000 in which the same tribunal found that the appellant had been unfairly dismissed and awarded her compensation of £14,674.65.
2. The appellant worked for the respondents, Healthcall Services Limited, from 1996 until 31 March 2000, when she resigned. By an IT1 dated 2 April 2000 she made complaints of sex discrimination, breach of contract and unfair dismissal, although in the event only the complaint of unfair dismissal was pursued. That complaint was heard by the employment tribunal at Stratford on 31 August 2000. The issue before the tribunal was whether she had been constructively dismissed and, if so, whether the dismissal was unfair. In very brief outline, the facts were as follows.
3. The appellant had worked for the respondents at their Newport branch, and had been promoted to a position of supervisor. From April 1999 her work concerned a contract which the respondents had with the Department of Trade and Industry for Spirometry, which involved tests on the lungs of miners to enable compensation to be assessed. Subsequently the respondents were awarded a contract by the Department of Trade and Industry for Medical Assessment Process (MAP) which also involved testing the lung functions of miners but by a more complicated process. The respondents considered that the new MAP work, which would largely replace the Spirometry work, could not be run from Newport. They therefore decided to transfer the work to their Enfield branch.
4. In October 1999 the appellant was appointed to the post of Operations Manager, DTI MAP, at Enfield and began to work there instead of Newport. Around this time the appellant had formed a relationship, of which the respondents were apparently aware, with a Mr Trevor Stephenson, a more senior employee of the respondents.
5. Unfortunately matters deteriorated from January 2000 onwards when Mr Andrew Dee-Crowne, the respondents' Director of Operations, took over the management of the MAP contract at Enfield. Exactly what happened thereafter, and particularly at meetings on 21 January, 31 January and 7 March 2000 was the subject of a conflict of evidence between the appellant and Mr Dee-Crowne which the tribunal had to resolve in order to decide the case. On that issue the tribunal said, in paragraph 4 of the decision of 20 September 2000: "in every case in which there is a conflict of evidence between that of the Applicant and Mr Dee-Crowne we would prefer the Applicant's evidence".
6. The question whether the applicant had been constructively and unfairly dismissed depended to a significant extent on what happened at a meeting between the appellant and Mr Dee-Crowne which took place on 7 March 2000, the day after the appellant's return from holiday. In essence, the appellant's case was that she was effectively taken off her work as Operations Manager in relation to the MAP contract by Mr Dee-Crowne and told by him to go back to work on Spirometry. According to the appellant that was a fundamental change in the arrangements which amounted to an unfair contractual dismissal. Mr Dee-Crowne's version was that the appellant's real reason for leaving was because, in the meantime, Mr Stephenson had been made redundant by the respondents and she no longer wanted to stay at Enfield.
7. On this part of the case the tribunal made the following findings at paragraph 6 (vii) to (x) of its decision of 20 September 2000:

"(vii) On 1 February the Applicant left to go on a pre-arranged holiday for five weeks in South Africa. It was suggested that she was seen on the CCTV in the car park kissing and petting Trevor Stephenson. Mr Dee-Crowne described the situation as "soft sex". We heard no evidence from anyone who witnessed the incident and have not considered it to be of importance since no complaint was made at the time. Apparently, a complaint was made to Mrs Tumelty [the respondents' Human Resources Director] by one of the observers but not until after the 31 March. The matter appeared to weigh heavily with Mr Dee-Crowne in his evidence and he raised it with the Applicant on 7 March. The Tribunal finds it difficult to see how it was a matter of importance since no formal complaint was made at the time and no disciplinary procedures were commenced about it.

(viii) The Applicant returned from holiday on 7 March somewhat unexpectedly. Shortly after her arrival she had a discussion with Mr Dee-Crowne. So far as he was concerned things had moved on since the Applicant went on holiday. He had now appointed a deputy. It had also become apparent that Spirometry had not died away as expected. The company had also made a decision to make Mr Stephenson redundant and it was clear that he was not happy with that decision.

(ix) There was considerable dispute as to what was said during the course of the meeting. We prefer the evidence of the Applicant. Mr Dee-Crowne informed her that she was to go back to work on Spirometry. He told her that he knew that she did not really want to do that especially as Mr Stephenson would be moving. He asked why the Applicant did not like Enfield and suggested that she did not want to live anywhere near there. He went on to say that he needed someone to run Spirometry and it was busy. This person had to be someone who was totally involved in Spirometry but this person was not the Applicant because her heart was no longer in it. He then went on to discuss whether the Applicant wanted to resign and asked her if she wanted to return to the Newport branch. Mr Dee-Crowne's version was that the Applicant seemed unwilling to stay after Mr Stephenson had been made redundant and that she expressed this as the reason why she was not prepared to stay at Enfield. We do not accept this as being an accurate account. It was obvious, at the end of the meeting, that the Applicant would no longer work at Enfield. Mr Dee-Crowne had discussions with colleagues and contacted Mrs Tumelty as a result of which it was suggested to him that he should ask the Applicant to speak to Mrs Tumelty. He told her this later on that day and suggested she make an appointment with Mrs Tumelty direct. He then raised with the Applicant her conduct in the car park.

(x) Subsequently, Mr Stephenson came into Mr Dee-Crowne's office and said that the Applicant was upset and that she had not told Mr Dee-Crowne that she did not want to come to Enfield because of Mr Stephenson. Mr Dee-Crowne's notes state that he was concerned about Mr Stephenson's demeanour and that he believed that Mr Stephenson was attempting to trick the Respondents into Tribunal proceedings."

8. The essence of the tribunal's finding that the appellant was unfairly dismissed is set out at paragraphs 11 and 12 of the decision of 20 September 2000:

"11 We have found that the Applicant had been asked to undertake an important part in the management of the new MAP contract. This was described by the witnesses as a mammoth contract and of very great importance to the Respondent. It is difficult for the Tribunal to judge the relative importance of that contract and the Spirometry contract but it is quite clear from Mr Dee-Crowne's description that it was considerably more important and complex. There would therefore follow a considerably greater amount of job-satisfaction and personal kudos from being involved in such an important matter. To have required the Applicant peremptorily to virtually cease her involvement in that contract and concentrate on Spirometry would, at the very least, have been a considerable disappointment to her. In addition to this Mr Dee-Crowne immediately suggested that the Applicant would not have the commitment to be involved in the contract and that she would not want to stay at Enfield once Mr Stephenson had left. Whilst that might have been the case he should not have formed that conclusion without having investigated the matter gently with the Applicant to find out her views. On top of this the whole matter was raised on her very first day back from her holiday which seems insensitive. Mr Dee-Crowne seems to have been very much affected by the relationship between the Applicant and Mr Stephenson. It may be that there were fears that Mr Stephenson's dissatisfaction with his redundancy might lead to the institution of Tribunal proceedings. We now know that the Respondents negotiated terms with him. It is however an inescapable conclusion that Mr Dee-Crowne was influenced in his attitude towards the Applicant both by Mr Stephenson's situation and by the relationship between Mr Stephenson and the Applicant. The position was aggravated by Mr Dee-Crowne mentioning the appointment of his deputy who would be concentrating on MAP.

12 The Tribunal find, based on the principles which we have already outlined, that such treatment is such that the Applicant could not be expected to put up with it. ..."

9. At paragraph 16 the tribunal said:

"16 The Tribunal have further considered the submission made by Mrs Bailey on behalf of the Respondent that her reason for not wanting to work at Enfield was because Mr Stephenson having left rather than because her contract had been amended. We have accepted the Applicant's evidence on other matters and accept it on this aspect of the case too. She seems to us to have been keen to pursue her career and to take up the promotion, which she had been offered. We are confirmed in this view by the fact that the close relationship between the Applicant and Mr Stephenson has now ceased."

10. Following the tribunal's decision of 20 September 2000, certain further information came into the respondent's possession. The gist of that information was set out in a notice of appeal dated 25 October 2000 which the respondents sent to this Appeal Tribunal:

"6. The grounds upon which this appeal is brought are that fresh evidence has come to light since the date of the tribunal hearing which was not available, nor could have been foreseen to have been available, at the date of the tribunal hearing.

7. For some days prior to the date of the employment tribunal hearing, a number of telephone calls were made to the mobile telephones of the directors of the Appellant. These calls were frequent in number and when answered, the caller hung up.

8. Some days following the date of the employment tribunal hearing, Mr Trevor Stephenson, a disaffected ex-employee of the Appellant and the ex-lover of the Respondent, advised another employee on how the voicemail boxes of the mobile telephones of a number of directors of the Appellant could be accessed. This employee passed this information on to the Appellant.

9. The Appellant engaged the services of the relevant telephone company to investigate the matter. It was discovered that the Respondent and Mr Trevor Stephenson had made a huge number of harassment calls to the directors of the Appellant with the express purpose of those directors being persuaded to switch their mobile telephones off. Once the mobile telephones were switched off, the Respondent and Mr Trevor Stephenson could, and did, gain access to the messages stored on the voicemail boxes of those directors.

10. The Appellant believes that such conduct was done with a view to destabilising the business of the Appellant, and that such conduct was dishonest and illegal.

11. The Appellant contends that had such evidence been available before the employment tribunal, the tribunal would not have preferred the evidence of the Respondent to that of the Appellants, and therefore her claim would not have succeeded.

12. In any event, the Appellant contends that, in the light of the Respondent's conduct since her dismissal, it would be inequitable in all the circumstances that she should receive any compensation."

11. The Registrar of this Appeal Tribunal having advised the respondents that it was open to them to apply to the employment tribunal to review its decision of 20 September 2000, the respondents wrote to the employment tribunal seeking such a review on 2 November 2000. The application for a review was heard by the tribunal, in the same composition as previously, on 12 January 2001.
12. In paragraphs 2 and 5 of their decision on the review dated 25 January 2001 the tribunal states as follows:

"2 We heard evidence from Mrs Tumelty the Human Resources Director of the Respondents and from Ms Michelle Samuel who is the Nuisance Calls Co-ordinator of Vodaphone. The evidence of these two witnesses was largely unchallenged and we make the following findings of fact:–

(a) The effective date of termination of the Applicant's contract was 31 March 2000.

(b) From about 7 April 2000 Mrs Tumelty began to receive calls on her mobile phone. When answered there was no response. These calls varied between 3-12 a day. After a while she became concerned that she was being subjected to stalking. She contacted the police in July and by middle or late August the police were able to provide her with the number of the caller who was making these calls. Neither the police nor Mrs Tumelty were able to identify the caller. On the afternoon of 1 September 2000, after the conclusion of the Tribunal proceedings, she was informed that information had just come to the Respondents from another employee that Mr Stephenson, a friend of the Applicant, had said that he knew a way of gaining access to the voice mails of executives. This caused the Respondent concern and a meeting was held on Monday 4 September to discuss the implications. As a result of this they spoke to their Enfield office at which the Applicant formerly worked. That office provided details of the Applicant's private mobile phone and it was realised that the calls to Mrs Tumelty had been made from this. Further investigations were made with Vodaphone, through the police, from which it [be]came apparent that the Applicant had made numerous calls to Mrs Tumelty. It was also recorded that she had incurred phone charges of £200.00 in August 2000 in speaking to the mobile phone held by Mr Stephenson.

(c) Miss Samuel confirmed that her company's records showed that the Applicant's phone had been used to make numerous calls to Mrs Tumelty and the mobile phone numbers of other executives of the Respondents. Some of the Applicant's calls to executives had been for more than 3 minutes. This was important because there was a 3 minute time available for leaving messages. The call would only be connected for more than 3 minutes if the caller had been connected to the voicemail. The Applicant was not authorised to make contact to the voicemail of any of the mobile phones which had been rung nor had she any valid reason to do so. Miss Samuel was only able to give these details to the Respondents on 21 September."

13. At paragraph 8 of its decision dated 25 January 2001 the tribunal stated that it had approached the matter of the review as follows:

"(i) The original finding was that it was the conduct of the Respondents which had caused the Applicant's contract of employment to be terminated not any conduct on the part of the Applicant herself. This was a constructive dismissal.

(ii) That decision had been reached after the Tribunal had had to resolve a serious conflict of evidence between the Applicant and the Respondent's witness Mr Dee-Crowne. The Tribunal had decided that it preferred the evidence of the Applicant. In reaching that decision the Tribunal had formed the view that the Applicant was an honest witness although they had also been influenced to some extent by the demeanour of Mr Dee-Crowne. The Respondents were now wishing to produce evidence that the Applicant had been conducting what can only be described as a nuisance campaign against Mrs Tumelty and other executives. Whilst there may be an explanation which is creditable to the Applicant none was suggested to us. The Tribunal also note with concern that there is a suggestion that the Applicant was untruthful about her relationship with Mr Stephenson. It was part of the Respondent's case that her resignation resulted from her annoyance that his contract had been terminated. She gave clear evidence to the Tribunal at the first hearing that this relationship had ended. Such a claim seems incompatible with the fact that she ran up phone charges of £200.00 talking to him in August alone. It may be again that there is an innocent explanation of this but none were suggested to us. The Tribunal finds that these matters could go very strongly to the credit of the Applicant. As a result it might be that a Tribunal hearing that evidence would form a different view of the Applicant's creditability than this Tribunal found at the first hearing. In particular the Applicant should give evidence to explain the potential untruthfulness of her evidence about her relationship with Mr Stephenson.

(iii) The Tribunal acknowledges the weight of authority which suggests that events after the effective date of termination should not normally be considered. However evidence which relates to the credit of witnesses would seem to be in a different category. In particular such reasoning has greater strength where the new evidence throws doubt upon the evidence that a witness has given at the hearing. Whilst that evidence might not be sufficient to sway a Tribunal against the Applicant it is only just and proper that it should be heard before a decision is reached. The Tribunal also appreciates that a decision to vary our decision could mitigate against the finality of that decision. The Tribunal accepts that there must be a point in time at which the delay would be too great. However, in this case the issues were raised by way of an appeal to the Employment Tribunal rather than by an initial request for a review. At the end of the day there was not excessive delay and it is still appropriate for the Tribunal to consider reviewing their previous decision."

14. The tribunal's decision on the application for a review is set out in paragraph 9 of the decision of 25 January 2001 in these terms:

"Having taken these various factors into account together with the submission of both the parties the Tribunal decide that it is appropriate that they should review their decision. If the Tribunal had been in possession of this evidence at the original hearing it is possible that they would have reached a different decision. Certainly it is possible that they would have taken a different view of the creditability of the Applicant. That being the case the Tribunal have decided that it is more appropriate that they should revoke that decision then that they should allow it to stand. The matter should be reheard before a differently constituted tribunal who have the benefit of hearing not only the evidence which this Tribunal heard but all the additional matters also."

15. Miss Overton now appeals against that review decision of 25 January 2001.
16. The essential argument advanced on behalf of the appellant is that, in deciding to revoke its earlier decision of 20 September 2000, the tribunal was wrong to take into account facts that had arisen after the termination of the appellant's contract of employment which came to an end on 31 March 2000. Here the new evidence regarding the telephone calls related to the period 7 April 2000 to August 2000, and was thus irrelevant to the question of the fairness or otherwise of the appellant's constructive dismissal on 31 March 2000: see W Devis & Sons Ltd v Atkins [1977] AC 931 (HL). Moreover, as the tribunal itself acknowledged at paragraph 6 of its decision of 25 January 2001, events after the effective date of termination are not relevant to the assessment of compensation: Soros v Davidson [1994] ICR 590. The appellant further argues that the principles of Devis and Soros apply equally where the issue is whether the applicant was constructively dismissed or not, since that issue depends exclusively on what happened up to 31 March 2000. The principle also applies where credibility is in issue. If it were not so, evidence relating to events after termination could be widely introduced on the grounds that it was "relevant to credibility". The principles of Devis and Soros would be undermined or circumvented, and there would be no finality in litigation. Even if there may be exceptional cases where new evidence of post termination events could be admitted, this case did not fall within any such exception.
17. The respondent contends that the tribunal correctly found, at paragraphs 8 and 9 of its decision of 25 January 2001, that the new evidence was relevant to the correctness of its earlier decision of 20 September 2000 because it was directly relevant to the appellant's credibility. In particular the evidence was highly relevant to (i) whether the respondents had acted in repudiatory breach of contract, which in turn depended on the credibility of the appellant's evidence, which the tribunal preferred to that of Mr Dee-Crowne; and (ii) the true reason for the appellant's resignation. On that latter issue, the truthfulness of the appellant's statement to the earlier tribunal that her relationship with Mr Stephenson had ceased was highly relevant. On both those issues, the new evidence significantly undermined the accuracy of the appellant's evidence at the first hearing. The respondents say there is no basis for excluding new evidence which post-dates the dismissal if it is relevant to the accuracy of evidence given regarding events occurring prior to the dismissal: see Phillips J at first instance in Devis [1976] ICR 196, p. 205 C-E, and Harvey, Industrial Relations and Employment Law, D1 at paragraph 864.
18. We accept that in Devis, cited above, the House of Lords, upholding both the Court of Appeal and Phillips J at first instance, held that in determining whether a dismissal is fair for the purpose of the legislation governing unfair dismissal, an employment tribunal cannot have regard to matters of which the employer was unaware at the time of the dismissal. Under the relevant legislation – now to be found in section 98 of the Employment Rights Act 1996 – the question whether the dismissal is fair or unfair depends, notably, on "the reason shown by the employer": the reason for the dismissal could not logically be something which the employer did not know about when the employee was dismissed (see the speeches of Viscount Dilhome at [1977] AC at p. 952F and of Lord Simon of Glaisdale at p. 959B).
19. In Devis their Lordships also considered that if evidence of misconduct by an employee subsequently came to light, that could constitute grounds for reducing, perhaps to nil, any award of compensation (see Viscount Dilhome at p. 955H and Lord Simon of Glaisdale at p. 960C). However, in Soros, cited above, Tudor Evans J in the Employment Appeal Tribunal considered that any such reduction could relate only to matters which occurred prior to dismissal which came to light after dismissal. There is thus no statutory basis for reducing the compensatory award to be made under (what is now) section 123 of the Employment Rights Act 1996 on the basis of conduct occurring after dismissal (see 1994 ICR at p. 594E-H).
20. It does not seem to us, however, that those cases are authority for the proposition that evidence of post termination events can never be admitted by an employment tribunal if such evidence is relevant to establishing what in fact happened in the period prior to the termination of the contract. This view was accepted, obiter, by Phillips J in Devis in the following terms:

"I would only add one other matter about this part of the case. I think that even in following those two cases, as I do, there is one qualification which can usefully be made. I do not think that they lead to the conclusion that in no circumstances whatever can evidence of what happened subsequent to the dismissal ever be relevant and admissible when considering paragraph 6(8). I would have thought that evidence of subsequent events might be admissible in order to prove the accuracy or otherwise of evidence given in relation to a date before the dismissal. This is best illustrated by way of example. Suppose an employee is dismissed on the ground of drunkenness, that being the reason within paragraph 6(1) and therefore within sub-paragraph (u); and suppose the employer gives and calls evidence to show that on a number of occasions the employee was drunk in the course of his duties. If, before the tribunal, it should be in issue as to whether such evidence was accurate, then I would have thought that evidence of later drunkenness would be admissible in order to establish the accuracy of the evidence of earlier drunkenness, but not as evidence of later drunkenness in order to constitute a subsequent reason."

See [1976] ICR 196, at p. 205D-E.

21. Nothing in the judgments of the House of Lords in Devis nor the judgment of the Employment Appeal Tribunal in Soros appears to us to cast doubt on the views expressed by Phillips J. In our view the law is correctly stated in Harvey, cited above, at paragraph DI 865: "... in very exceptional cases evidence of subsequent events may be admissible to establish the truth of evidence occurring before the dismissal ... [as] recognised by Phillips J in [Devis]".
22. It is true that the admission of such evidence is likely to be exceptional, and that employment tribunals need to be vigilant to ensure that evidence of events post-termination is not used to circumvent, by an indirect route, the principles of Devis and Soros. But where evidence of events post-termination goes directly to show what the relevant facts were before or at the time of termination, in our view there is no principle of law to the effect that such evidence may never be admitted. To our mind a classic example would be where the evidence in question (or, as in the present case, the new evidence) shows that other evidence given regarding pre-termination events is inaccurate. Whether to admit such evidence, and what weight to give to it, would of course be a matter for the employment tribunal in the exercise of its discretion having regard to the relevance or otherwise of the evidence sought to be adduced.
23. In the present case the tribunal's decision of 25 January 2001 to revoke its earlier decision of 20 September 2000 was made under Rules 11(1) and (7) of the Employment Tribunals Rules of Procedure 1993. Rule 11(1) provides:

"(1) ... a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that –

...

(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not reasonably have been known or foreseen at the time of the hearing ..."

Rule 11(7) provides:

"On reviewing its decision a tribunal may confirm the decision, or vary or revoke the decision under the chairman's hand; and if it revokes the decision, the tribunal shall order a rehearing before either the same or a differently constituted tribunal."

24. There is no doubt that the circumstances set out in Rule 11(1)(d) are satisfied in this case. It was therefore for the employment tribunal, in the exercise of the wide discretion conferred by Rule 11(7), to decide whether the new evidence was such as to justify revoking its earlier decision. Since the jurisdiction of this Appeal Tribunal is limited to errors of law, we can only interfere with the exercise of the tribunal's discretion under Rule 11(7) if we are satisfied that the way in which that discretion has been exercised was wrong in principle, or if no reasonable tribunal could properly have exercised that discretion in the way that it did.
25. In the employment tribunal's view, the new evidence cast strong doubt on the accuracy of the evidence that the appellant, Miss Overton, gave at the earlier hearing on a specific and relevant issue (her relationship with Mr Stephenson), and upon her general credibility as a witness. It was a case which turned directly on the credibility of Miss Overton's evidence as compared with that of Mr Dee-Crowne.
26. Those are matters for the tribunal to judge. Having examined the tribunal's decision, and notably the grounds given in paragraph 8 of that decision, we can detect no error of law in the exercise of the tribunal's discretion in the present case.
27. We would merely add that the tribunal's decision of 25 January 2001 does not preclude the appellant from advancing her case anew before a differently constituted tribunal that will be in a position to hear the totality of the evidence. The appeal is dismissed.