United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS G WHITE (of Counsel) Instructed by: Farrer & Co 66 Lincolns Inn Fields London WC2A 3LH


 


JUDGE A WAKEFIELD

1. This is is an ex parte preliminary hearing of an appeal by R H M Frozen Foods Ltd against a finding by an Employment Tribunal, sitting at Ashford in Kent, that the present Respondent, Mrs Joanne King, had been constructively dismissed and that such dismissal was unfair.
2. The hearing of the complaints, which had included that the Respondent had been discriminated against by reason of disability (such complaints of discrimination not being found proved), had occupied the Employment Tribunal for five and a half days in April 2001, and the Decision with Extended Reasons was sent to the parties on 9 October 2001.
3. The Reasons for the conclusions of the Employment Tribunal that the Respondent had been constructively unfairly dismissed were set out in paragraph 18 of the Decision as follows:

"The conclusion of the Tribunal is that the Applicant was constructively unfairly dismissed for the following reasons:-

(1) The complaints against her dealt with in the disciplinary meeting on 21 December 1999 had not been fully investigated by Mr Harris. (They had only been partly investigated).

(2) The Applicant had not been given adequate time to prepare her defence.

(3) The Respondent should have provided the Applicant with an agenda setting out the items to be discussed. This should have been provided in advance, together with copies of all relevant documentation.

(4) The Applicant was not allowed to question relevant witnesses as provided for by the applicable disciplinary procedure.

(5) It is clear from the transcript of the tape, that the telephone rang on many occasions and was very loud and was disruptive as to make it impossible for the disciplinary meeting to proceed in a proper and appropriate manner."

4. On the question of causation, they then found in their paragraph 20 the following:

"In view of the Applicant's mental impairment after 21 December 1999, the Tribunal do not consider that the Applicant affirmed the contract of employment prior to her letter of resignation dated 25 May 2000.

(The Tribunal do not consider it an appropriate factor that Mr Harris rather than Mr Evo dealt with the disciplinary meeting. Further, the allegation relating to Ms Atkinson and the complaints made by the Applicant in that regard are not, in the Tribunal's view, relevant to the issue of constructive dismissal. The Tribunal's view on this point is that the Applicant should have taken up a grievance under the grievance procedure and that the Respondent's actions in not disciplining Ms Atkinson was not a breach of the implied term of trust and confidence between the Applicant and the Respondent.)"

and then they go on to other findings.

5. Those conclusions are criticised in the Notice of Appeal, and in argument before us today, on three broad bases: firstly, that the Employment Tribunal failed to identify which, if any, of the matters which they had set out in their paragraph 18, constituted a breach of a contractual term, or whether, if such a term was thereby breached, whether that breach was sufficiently serious to amount to a repudiatory breach of the contract of employment. That is to say it is argued that the Employment Tribunal focused on the issue of fairness and failed to ask the relevant questions in relation to whether or not the Respondent had been constructively dismissed. Secondly, it is argued that the Employment Tribunal failed to consider and/or to find that any repudiatory breach of the contract of employment was the cause of the Respondent's resignation. Thirdly, it is said that the Employment Tribunal failed to take account of evidence before them from the Respondent herself that she resigned not in consequence of any of the matters referred to in paragraph 18 of the Decision but as a response to a letter to her from the Respondent, dated 23 May 2000.
6. We consider that these grounds of appeal are arguable and that the appeal should therefore go forward to a full hearing. We order that the Chairman's Notes of the hearing be produced of the evidence given at that hearing by the Respondent, that is to say the original Applicant, as to the following matters: firstly, the disciplinary hearing on 21 December 1999, and her reactions, if any, to the way in which that had been conducted; secondly, as to her intentions regarding any return to work in the period December 1999 and May 2000, and thirdly, as to the receipt of the letter dated 23 May 2000, and her reactions to that letter.
7. We give leave to the Appellant to amend the Notice of Appeal in relation to the finding of the Tribunal that:

"In particular, the Tribunal finds as a fact that the Applicant's major depressive disorder with phobic anxiety disorder arose directly as a result of the disciplinary hearing conducted by Mr Harris on 21 December 1999."

8. We put the matter in category C. We order that Skeleton Arguments be provided not later than fourteen days prior to the hearing and we consider that a time estimate of half a day for the hearing should be adequate.