United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant (in 1084/01) Respondent (in 1161/01)	MR A REEVES (Solicitor) Messrs Reeves & Co Solicitors 27b The Mansions 252 Old Brompton Road London SW5 9HW
For the Respondent (in 1084/01) For the Appellant (in 1161/01)	Mr SIMON GORDON (Of Counsel)


 


MR COMMISSIONER HOWELL QC

1. We have before us for Preliminary Hearing an appeal and cross appeal both against the same decision of the Liverpool Employment Tribunal sitting on four days in April 2001, with the decision being set out in Extended Reasons sent to the parties on 15 August 2001.
2. The proceedings before the Tribunal were a lengthy and detailed set of complaints by Miss Sheila Susan Maddock alleging disability discrimination, sex discrimination, a claim for redundancy, unfair dismissal and breach of contract against her former employers, a company called Peoples Liverpool Limited, by which she had been employed as business manager down to 17 July 2000. Peoples Liverpool Limited had taken over the motor sales business of a previous company, J Lake and Company, with whom Miss Maddock had been an employee since early 1990. As is clear from the Tribunal's findings, relations between Miss Maddock and the management of the new company were not anything like as satisfactory to her as they had been with the old; though it is a matter of record that the old company had become insolvent and was unable to continue with the business in any event 13 April 1999 when the takeover took place.
3. Miss Maddock's complaints were set out in a document anexed to her Originating Application dated 17 August presented on 21 August 2000. This ran to some 57 paragraphs spread over many pages, setting out a detailed narrative of events which she had found unsatisfactory over the period following the takeover and making numerous complaints about the way she had been treated by individual members of staff including Mr Brown the Director.
4. That document concluded by setting out under five separate heads (a) – (e) the specific claims she was making. First of all, she had been unfairly dismissed, principally by reason that the conduct of the employer was such as to cause her distress and ill health entitling her to resign her position as she had done by letter of 17 July 2000. That coincidentally was the same date on which the Respondent company sent her a letter purporting to dismiss her, on the ground that they were no longer able to tolerate her continued inability to turn up regularly for work on the ground of ill health.
5. Subsequent sub paragraphs of the claims set out at the foot of her Originating Application were that the employer had failed to consider reasonable adjustments for her as a disabled person and that they had discriminated against her as a disabled person by dismissing her for grounds relating to her disability. Further that there had been a series of events amounting to discrimination against her as a female member of the staff and she had suffered sexual harassment with which the employer had failed adequately to deal, and that too had led to her dismissal.
6. A further contention that she had been in truth made redundant has not been proceeded with, and a contractual claim set out in sub paragraph (e) of that document have also not been proceeded within their own right, although it is right, to say that a ground of complaint called in aid in support of the contentions made before us on unfair dismissal was that she had not been paid her statutory sick pay entitlement for the number of weeks she was away from work on grounds of sickness.
7. The Tribunal in its decision recorded findings of fact as to the events which had led up to her employment being terminated. These included findings to some extent bearing out what she had said about the sexual harassment to which she had been exposed by some members of the staff, which on any footing the Tribunal rightly found indefensible; but apart from upholding the complaint of sex discrimination in respect of certain of those matters the last example of which had as the Tribunal recorded occurred in December 1999, the Tribunal rejected Miss Maddock's claims. They found that she had not been dismissed by the Respondents. She had resigned in circumstances which did not amount to constructive dismissal, because the Respondents had not in the view of the Tribunal been guilty of repudiatory conduct such to justify an employee resigning and treating herself as constructively dismissed. Nor in fact, as the Tribunal recorded, had the particular conduct she had complained of caused her to resign. Her resignation had been for other reasons which the Tribunal had specified in paragraph 4(c) of the Extended Reasons by saying:

"The conduct the applicant complained of did not cause her to resign. She was not herself. She had grown disappointed and frustrated over work. She never appeared to have settled down to the new ownership of the company. She feared and resented the respondents' efforts to change arrangements that she was happy with."

The Tribunal concluded with the observation that the Respondents had been entitled to run the company in their way and they had done nothing to impose on her in such a way as to deprive her of the benefit of arrangements she was entitled to insist on.

8. Consequently they dismissed the claims for unfair constructive dismissal, held that she had been subjected to a detriment in the particular instances of sexual harassment to which she had been exposed but rejected any other claims based on the fact of her dismissal. They also rejected, for reasons they gave fairly shortly, the complaints of disability discrimination by concluding that the requirements the employer had made that she produce sick notes for periods of absence were not a detriment for this purpose, or even if they were a detriment they were justified. They had not dismissed her so that there was no dismissal to constitute disability discrimination, and that they had not in their conduct refused to make reasonable adjustments which they ought to have been expected to make for her benefit as a disabled person: assuming her to be such a person for the purposes of the Disability Discrimination Act 1995.
9. As we have mentioned, against that decision we have two separate appeals. One by the Respondent company on file EAT/1084/01 which raises a single issue whether the Tribunal erred in law in deciding as they did to admit out of time the complaints first made by the Originating Application on 21 August 2000 of sexual discrimination, relating to individual incidents which went back to December 1999 and before. The Tribunal dealt with that fairly shortly in paragraph 5 of their Extended Reasons saying that strictly by her complaint of sex discrimination was out of time, but they had decided it was just and equitable to enlarge the time for presentation: the discrimination certainly took place and the Respondents were not prejudiced by an enlargement of time.
10. Against that decision the company appeals on the grounds that that was a misdirection or erroneous in law and that the Tribunal had erred in failing at any rate overtly to address in the paragraph to which we have referred what was just and equitable for the Respondent. Mr Reeves who appeared before us for the company on the Preliminary Hearing of this appeal urged that there was no reasoned explanation for the Tribunal's exercise of its discretion to give itself jurisdiction to entertain those complaints, and there was therefore a sufficiently arguable point of law for us to direct that that issue should go forward to a full hearing.
11. We accept those submissions having regard in particular to the decision we have also reached on the other appeal before us on behalf of Miss Maddock on File EAT/1161/01. We accept that is relevant because if that other appeal is to be allowed to go forward to a full hearing then the issue sought to be raised in the company's separate appeal could in any case be raised by way of cross appeal in Miss Maddock's own appeal.
12. Turning to Miss Maddock's own appeal, the grounds that were urged on us by Mr Gorton of Counsel who appeared before us on behalf of Miss Maddock (and as he informed us, had also appeared on her behalf at the Employment Tribunal proceedings themselves) allege a number of errors of law in the way the Tribunal dealt with the factual issues and the evidence in the case. In particular it is contended in the detailed grounds of appeal annexed to the Notice of Appeal dated 25 September 2001, that as regards constructive dismissal the Tribunal had failed to address and take into account numerous material factors advanced by the Applicant which in her contention had led her to take the inevitable step of resigning from her employment by reason of intolerable conduct towards her by her employers. In particular it is suggested that the Tribunal failed to consider all the material issues to make a properly informed decision on whether the circumstances facing her on 17 July 2000 amounted to circumstances justifying an employee resigning and claiming constructive dismissal. Related to that are further contentions that the Tribunal had erred in failing to consider material issues on the complaints of sex discrimination, in particular a contention that was said to have been advanced that the circumstances leading up to her resignation either individually or together also amounted to circumstances of dismissal contrary to the Sex Discrimination Act 1975.
13. Similarly, the contention is sought to be raised that the Tribunal failed to make proper findings of fact in connection with the disability claim. In particular they failed to deal with the pleaded case in relation to reasonable adjustments, that were contended could and should have been made for her, and again the circumstances leading up to her resignation ought to have been considered as circumstances of discrimination against her by way of dismissal contrary to the Disability Discrimination Act 1995. All of those contentions appeared to us (and this was not really disputed in argument by Mr Gorton before us) to relate that to the way the Tribunal dealt with the factual issues he said had been raised before them on what were the circumstances giving rise to Miss Maddock's decision to resign and whether these ought properly to have been viewed as amounting to either individual repudiatory conduct, or the last straw in a sequence of repudiatory conduct on the part of the employer, justifying her in taking that course.
14. We have reluctantly concluded that there has to be a full hearing on these issues as well. But for what we are told by Counsel on the Preliminary Hearing today from his own recollection as to the way the case had been put before the Employment Tribunal, we would unanimously have dismissed Miss Maddock's appeal at the Preliminary Hearing stage. The Employment Tribunal decision with which we are concerned, viewed by its own lights and having regard to the findings of fact it contains within it, appears to us an entirely clear and sufficient explanation of the decisions they reached which decisions appear to us to have been open to an Employment Tribunal to reach on the facts recorded as found.
15. At some points the decision is shortly and simply expressed, but we have in mind in particular the well established principle that an Employment Tribunal's statement of reasons is not intended to be an over detailed document or the product of over refined legal analysis, and it is not for the Employment Appeal Tribunal to pick over detailed points on the facts or evidence, especially in such a diffuse and complicated case as this one was to consider on the facts. The fact that individual points of contention or evidence are not mentioned expressly in the Tribunal's decision is not of course a ground of itself for inferring that there have been errors of law in the way the Tribunal reached the decision it did.
16. In this case it appears to us that the crucial documents for judging whether the Tribunal adequately addressed the contentions put before them on what led up to Miss Maddock's decision to resign are three, all of which they referred to expressly in their Extended Reasons. First, her actual letter of resignation to which they referred in paragraph 3(q) of their Extended Reasons as reciting the matters that she said caused her to resign. That was the contemporaneous evidence and the most useful piece of evidence to judge the basis on which the Tribunal had to approach the question of unfair dismissal.
17. The second document was her witness statement used for the purposes for the Tribunal hearing that is referred to by the Tribunal expressly in paragraph 2(a) of their Extended Reasons. The third, and perhaps for this purpose most important, document was a tabular analysis produced by Counsel for the purposes of the Tribunal hearing and submitted to the Tribunal itself, setting out the basis of the complaints on which the Tribunal was being asked on behalf of the Applicant to adjudicate. As Mr Gorton confirmed to us, that is the document also referred to in paragraph 2(a) of the Tribunal's Extended Reasons. As Mr Gorton told us it did seek to refine to some extent the 57 paragraphs of narrative complaint set out in the Applicant's Originating Application; and given the breadth and detail of that document, some such refinement was of course necessary by the hearing stage of the Tribunal's proceedings if not before.
18. All of those documents are recorded by the Employment Tribunal as having been considered; and we find no reason from the decision itself or from the other material that is before us to infer that the contents of those documents would have been ignored or their material points overlooked by the Tribunal in reaching the decision they did. None of those documents is before us today. If they had been, it would have been much easier for us to form our own view for the purposes of the Preliminary Hearing on whether there really were material omissions from the Employment Tribunal's consideration of the crucial issues that they had to decide on constructive dismissal and the conduct alleged to have led up to it.
19. Unfortunately, however, Mr Gorton who appeared before us was unable to produce any of those documents to us: in particular the analysis of the issues. He informed us that most unfortunately been contained in a computer belonging to him which had been lost or stolen, so that he was unable to produce his own copies though it was hoped that another copy could be obtained from the Tribunal or elsewhere.
20. For the purpose of the Preliminary Hearing we had therefore to rely on Counsel's own statements from his own recollection as to the way matter was put before the Tribunal. This, he informed us, was categorically to the effect that all of the issues identified as material in the Notice of Appeal and his skeleton argument as wrongly not having been dealt with by the Tribunal were indeed raised before the Employment Tribunal by him, in such specific terms as issues for decision by the Tribunal as to make it an error in law for them not to have been addressed in the Tribunal's statement of Extended Reasons more fully than they were.
21. For the purposes of this Preliminary Hearing we have concluded that we must accept what Counsel tells us on such a factual matter; though of course at the full hearing of the appeal the documents themselves will need to be looked at closely to see if they really do fairly have the effect which Mr Gorton contended. For those reasons we have concluded that we must direct a full hearing of this appeal inter partes before the Employment Appeal Tribunal. We will direct that this appeal and the company's appeal on File EAT/1084/01 should be for practical purposes consolidated, with Miss Maddock being the Appellant for the purposes of consolidated appeal and Peoples Liverpool Limited the Respondent, and that the grounds of appeal by Peoples Liverpool Limited in its own separate appeal on file EAT/1084/01 should stand as the Respondent's cross-appeal in the consolidated appeal.
22. We will direct that the combined appeal should be set down for full hearing before the Employment Appeal Tribunal, listing Category C with an estimated combined length of one day. The further directions we think are necessary to give for the purposes of the full hearing are these: first the Chairman should be asked to provide his notes of any oral evidence given by Miss Maddocks about the reasons for her resignation. Second, the Chairman should be supplied with the copy of this judgment and the Notice of Appeal in Miss Maddock's appeal and invited to give in writing any comments he wishes to make on the way in which the issues were placed before the Tribunal at the hearing for decision, and the suggestion that material issues on which the Tribunal was asked to give a determination were not addressed. Third, that for the purposes of the company's cross appeal the Chairman should be asked to provide his notes and any relevant material in the Tribunal file going to the reasons for admitting the sexual discrimination claims out of time. The only other direction we need to give is that Skeleton Arguments be exchanged between the parties and lodged with the Employment Appeal Tribunal office not later than fourteen days before the date to be fixed for the hearing of the combined appeal.