United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JAMES BOYD (of Counsel) Instructed By: Messrs Backhouse Jones Solicitors 23 Wellington Street Blackburn Lancashire BB1 8DE
For the Respondent	MR STEPHEN BROCHWICZ-LEWINSKI (of Counsel) Instructed By: Brabners Solicitors 7/8 Chappel Street Preston Lancashire PR1 8NA


 


MR JUSTICE NELSON:

1. This is an appeal against the reserved decision of the Liverpool Employment Tribunal dated the 13^th March 2001. The Tribunal found that there had been a fundamental breach of the Appellant's contract of employment by the Respondent, in that the Respondent had failed properly to address certain complaints the Appellant had made about the manner in which the Respondent's business was operated, but that he did not resign as a consequence of this fundamental breach, as he said he had, but because he 'wished to join his father's business.'
2. The Appellant was employed as the transport manager and warehouse supervisor in the Respondent's business of distributing fruit and vegetables. He held a Certificate of Professional Competence (CPC), a qualification necessary for a company to retain its operators licence. Mr Stobbs had made numerous complaints throughout the final year or so of his employment, that, for example, vehicles were being overloaded and drivers were exceeding their permitted hours under the relevant regulations. Such breaches threatened his Certificate of Professional Competence so that he felt particularly vulnerable. Mr Stobbs said that his complaints were not dealt with properly and eventually he felt unable to continue working for the Respondents and submitted a letter of resignation on the 10^th April 2000. His net earnings with the company were about £400 per week.
3. The decision of the Tribunal that Mr Stobbs did indeed make genuine complaints, that the company treated them in a wholly cavalier fashion, that they were not intending to address them and that Mr Stobbs, as the CPC holder, was entitled to regard this as a serious act in relation to him, was a majority view, as indeed was the conclusion that there had been a fundamental breach of contract by the company in their failure to properly address these concerns raised by Mr Stobbs.
4. A majority, having accepted Mr Stobbs' evidence on the central issues as to breach, preferred the evidence of the company on a factual issue as to the reason for his resignation. Mr Stobbs had asserted that he had been informed shortly before his resignation that a further director, Brian Cookson, was going to take over his job. This assertion was denied by the Respondents who said that this was only canvassed after Mr Stobbs had tendered his resignation. A majority accepted the Respondent's case that the Appellant had resigned in order to join his father's business.
5. The minority decision is not set out in the Extended Reasons. It is not clear where the majority decision varied from the minority decision in its view on the evidence, as the minority view of the facts is not recited. What weight was given by the respective majority and minority views of the Tribunal to the issues under dispute is not therefore clear. Inferences as to what the minority might have found on these issues might be made but, in the view of this Tribunal, cannot safely be made.
6. At the outset, Mr Boyd, counsel for the Appellant, sought to amend his grounds to allege that the failure to express the minority view, which he had unfortunately only just become aware of, was in itself a ground which required the matter to be remitted to the Employment Tribunal for rehearing. Subsequently however he did not seek such an amendment, but simply sought to argue that this Tribunal should take into account the fact that the decision was unclear as to which facts were found by the minority and which were found by the majority.
7. The Appellant's main contentions were that the findings were perverse and unsupported by evidence. As to perversity, it was submitted that the Tribunal's finding that the company was in fundamental breach of its contract entitling Mr Stobbs to terminate it, but at the same time finding that that fundamental breach was not in fact the cause of his resignation was inherently improbable. When however it was considered that he had left a substantial wage for a job which he held, in order to start in a speculative plant nursery business with no certainty as to earnings, the finding that the resignation was for reasons other than the fundamental breach was not only improbable, but perverse.
8. As to the lack of evidence, the Tribunal had found that Mr Stobbs' father owned a plant nursery and that it was to that business that Mr Stobbs intended to go when he tendered his notice. Implicit in that finding, it was submitted, was that the business was existing. There was however, the Appellant submitted, no evidence that there was an existing, or indeed a past, plant nursery business, owned by Mr Stobbs' father. Neither the chairman's notes revealed that nor did the notes of evidence prepared on behalf of the Appellant.
9. After the Respondent's solicitors notes had been sent to the Appellant, his counsel decided that these were the most accurate and relied upon these, together with the chairman's notes, rather than upon his own side's notes.
10. In spite of Mr Boyd's submission that there was no evidence to support the conclusion that Mr Stobbs' father owned an existing nursery, the Respondent's solicitor's notes suggested on their face that such answers had been given in evidence by the Appellant. There were various answers recorded in these notes at pages 79 and 80 which suggested that Mr Stobbs' father had run the nursery for several years, but many of those answers were not entirely clear, and the chairman's notes, which were somewhat brief, had no reference at all in them to the father owning the nursery. They did however record that Mr Stobbs said in evidence 'My father owned land 13 years'. There is also a passage in the Respondent's solicitor's notes which states 'My dad had owned it for 13 years' though it is unclear, without fevered analysis, as to whether that is a reference to the nursery or the land, as the chairman had recorded. If, as appeared at least possible, both passages related to the father owning the land for thirteen years rather than the nursery, the further reference in the notes to 'the nursery was there for 13 years before' in the Respondent's solicitor's notes becomes uncertain as to its accuracy. The father had owned the land for about thirteen years and there was no other reference to thirteen years apart from the reference which the chairman had recorded as being the period of ownership of the land. It may be therefore that the Respondent's solicitor's notes did not correctly record the answers relating to the ownership of the land, but mistakenly recorded them as relating to the ownership or running of the nursery. On the other hand it maybe that the notes are correct. What is certain is that this Tribunal simply does not know.
11. If the Respondent's solicitor's notes are correct one of the central planks of the Appellant's case disappears, whereas if the notes are incorrect his case of lack of evidence was still sustainable.
12. This Tribunal has given the matter careful attention and concluded that it is not possible on the material before it to come to a safe conclusion on this appeal. The only course open, in view of the dispute as to the accuracy of the Respondent's solicitor's notes, would be to rely solely on the chairman's notes, but both parties agree that those are less than full. We do not consider therefore that this would be an appropriate course to take.
13. We are, as a consequence, forced to the conclusion that as no safe decision can be reached by us on the material at present available, and there is no way of resolving the disputes on the evidence, the matter must be remitted to another Employment Tribunal for a full rehearing. We are fortified in this view by the fact that we face the added difficulty of having to consider the Employment Tribunal's decision when that decision does not set out clearly the majority and minority views.
14. We are satisfied that good practice requires the separate views of the majority and the minority to be set out in the decision. This is particularly important when different findings of fact may have been made by the majority and minority and, the finding of such facts determines the outcome of the hearing. Mr Justice Phillips as he then was, said in the case of Parkers Bakeries Limited -v- R E Palmer [1977] IRLR 215:-

"Where there is a majority decision by an Industrial Tribunal, it is very desirable that the views of the majority and those of the minority should be set out clearly and distinctly in separate paragraphs. Unless that is done, neither the parties nor the Appeal Tribunal can really get a clear idea of what precisely are the views of the majority and minority respectively.

Apart from that, it is essential that decisions should set out the findings of the primary – i.e. the basic – facts found, making it clear precisely what the majority thought had been established and what the minority had thought had been established. It is essential that that should be stated before the conclusions are given, because the conclusions must be dependent upon the findings of basic facts."

15. We indicated to the parties when announcing the decision of the Court that directions for the rehearing would be given by us. The ownership of the nursery, when it commenced trading, whether, and if so for how long it was run by Mr Stobbs' father, and what profit it made over the years it traded, will become important features of the rehearing. It is therefore essential that there be proper disclosure of the documents relevant to these issues and we order that such disclosure be given by Mr Stobbs. He should in any event produce the documents relevant to the setting up of the business in his name and the trading figures from its outset, if that was before week ending 30^th April 2000.
16. If there are no documents relevant to his father running such a business, because he did not do so, then clearly further statements from both Mr Stobbs and Mr Stobbs senior stating these facts will be required. Such further evidence and disclosure of documents should be concluded, including any evidence in reply from the Respondents, by the 31^st August 2002. The parties should then consider whether they could usefully meet in order to explore the possibility of settling the issues between them by way of agreement.
17. The matter is therefore remitted to a different Employment Tribunal for full rehearing, including the financial disputes save in so far as those are disposed of by way of agreement. It is open to the parties, if so advised, to agree the Employment Tribunal's findings as to fundamental breach and only have a rehearing on the cause of the resignation.