United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PETER CARR (Representative) 6 West Road Sawbridgeworth Hertfordshire CM21 0BJ
For the Respondent	MR YASH KULKARNI (Of Counsel) Messrs Kathleen Douglas & Co Solicitors Illford Chambers 11 Chapel Road Illford Essex IG1 2AF


 


MR RECORDER LANGSTAFF QC

1. This is an appeal from a decision of an Employment Tribunal sitting both at Bedford and then at Watford. By Extended Reasons promulgated on 3^rd October 2000, the Tribunal dismissed claims by Mrs Bradbury in respect of discrimination on the grounds of sex and that she had been constructively dismissed unfairly.
2. She was an Accounts Clerk who had been employed for some years by the Respondent. She had fallen pregnant and immediately prior to taking maternity leave had been working at the Hatfield office of the Respondent. The case concerned the terms upon which she was to return to work. In short, for reasons that will become apparent (as only a short recitation of the facts is needed), the factual issues were, whether she was required by her employer to return to work under more onerous conditions than had applied to her earlier. If so it was arguably a breach of the terms upon which a right to return to work following maternity leave might be exercised. It might also be a requirement that could not lawfully be made under the existing contract without the consent of the employee. That, of course, would depend upon a finding as to the terms of the original contract. The relevant terms are those in respect of place of work and hours of work.
3. The Tribunal set out in some detail the facts which it found. It set out in some detail submissions which were made by the Applicant in respect of the facts and it set out in some detail the submissions made on behalf of the Respondent as to the facts. It then concluded the decision in these terms

"Having considered the arguments made for and on behalf of the parties and in the light of the facts which they had found, the Tribunal unanimously preferred the arguments of the Respondents".

4. At no stage in the decision did the Tribunal say what law it was applying. It did not identify the issues which arise under Section 1 of the Sex Discrimination Act 1975, nor those issues which arise under the return to work provisions of the Employment Rights Act 1996 in force at the time. Nor did it direct itself as to the relevant law in respect of constructive dismissal.
5. The problem that we have on appeal is in identifying which fact the Tribunal regarded as of particular significance in reaching its conclusion. We would only know this if the Tribunal itself had said what the relevant issues of fact were in the light of the law which it had set out.
6. It is axiomatic that it is an error of law for a Tribunal not to set out clearly why it is that one party has won and the other has lost. That necessarily involves, in the case of a Tribunal such as this, at least a brief description of the relevant legal principles which it was applying. It also demands a relevant finding of fact in a number of respects. For instance the Tribunal here in considering the issues caused by the claim of constructive dismissal should have begun by asking what was the contract of employment. Only if it had set out the terms it found would it then be in a position to continue by determining whether or not those terms and conditions had been broken, or were broken in anticipation, by the requirement or any requirement by the employer as to the hours that the employee should work upon her return. If, for instance, the contract for employment permitted flexible hours then a requirement to work more hours than she had been doing immediately prior to maternity leave might be thought, depending on the circumstances, to be no breach of contract. If, however, the hours were fixed at 26 hours per week, then to ask the employee to work 30 or 35 hours per week, even for a temporary period, would be to require a performance of her which was outside the terms of the contract. To insist upon it might be thought to be repudiatory of the original contract. Indeed it might be difficult, and one would need cogent and persuasive evidence, to see in such a case why such an insistence should not be regarded as repudiatory if indeed it amounted to an intention not to be bound by the terms of the original agreement. But these are all issues of fact which have to be set in context and the Tribunal neither set out the context, it seems to us, nor did it clearly find the facts which were relevant within that context.
7. Mr Kulkarni, who appeared before the Tribunal, tells us that he addressed the relevant law before the Tribunal. He accepts however, that in the absence of the Tribunal itself identifying which principles were relevant and what law they were purporting to apply in reaching the determination that they did, they were in error. He conceded before us, as we think it was entirely right and proper to do, that he suspected that he could not show a sufficient analysis by this Employment Tribunal for us on appeal to understand, or for that matter for the Appellant to understand, precisely on what legal and factual basis she had lost the case.
8. Although he submitted to us that it was open to this Tribunal to maintain the finding of the original Tribunal so far as constructive dismissal was concerned, he could only do so on the basis that he considered, and submitted to us, that a finding in general terms that the Tribunal unanimously preferred the arguments of the Respondents necessarily meant that they accepted in full that which was set out at paragraph 5(iv) of its decision; that the reason for the employee's refusal to return to work was her nervousness about going on to a new set of software.
9. We are far from convinced that this is a clear finding of fact particularly in the light of the Tribunal's express acceptance of the evidence of Mr Wright that what the Applicant had said at the time to him by phone was that she was unable to return to work due to childcare and increased temporary hours. If the Tribunal were as a matter of fact entitled having heard the Applicant to come to the conclusion that the real reason was different from that which she had expressed by phone, we would have expected rather more by way of comment and factfinding from the Tribunal.
10. Subject only to that, Mr Kulkarni accepted before us that the Tribunal's approach to the issue of constructive dismissal itself was insufficient and it followed that he conceded, as we think he was bound to do, that the proper course for this Tribunal would be to remit the matter to the Employment Tribunal. Mr Carr for the Applicant was persuaded in argument not to pursue a line that suggested that this Tribunal was, despite the deficiencies of the decision as we see it, in a position to determine the whole matter in favour of the Appellant. He accepted that the matter should be remitted.
11. There is however a difference in their approach as to the order we should make. Mr Carr asks that the matter be remitted to a fresh Tribunal and Mr Kulkarni, to the same Tribunal. We have come to the conclusion that the matter should be remitted to a fresh Tribunal. This is not to imply any criticism in the capacity of the Employment Tribunal to hear and determine the facts. It is a reflection merely of the time that has elapsed since the original hearing which was on 8^th May 2000. We note that there was a gap of nearly six months before the second day of hearing before the Tribunal, then in Watford. We think that there may well be substantial difficulties in a Tribunal recalling the facts and arguments addressed on the previous occasion. This would defeat the otherwise economy of returning the issues to the same Tribunal.
12. For those reasons, implying no criticism in this respect of the Tribunal below, we think the matter should be remitted in its entirety for hearing before a fresh Tribunal. We are sorry to have to reach that conclusion upon a case which seems to us for the reasons which we have expressed to fall within the principles identified by the Court of Appeal in Meek v City Council of Birmingham [1987] IRLR.