United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS C WOODS In Person


 


JUDGE MCMULLEN QC

1. This is an application under Rule 3(10) of the EAT Rules from a decision of the Registrar dated 25 June 2003. Her decision made under Rule 3(7) was that in her opinion the Notice of Appeal discloses no question of law for determination pursuant to Section 21 of the Employment Tribunals Act 1996. I will refer to the parties as Applicant and Respondent.

Introduction

2. It is an appeal by the Applicant against the reserved decision of an Employment Tribunal Chairman Mr P J Russell sitting at Manchester over 12 days between 17 March and 15  April 2003 registered with extended reasons on 6 May 2003. The Applicant represented herself, the Respondent was represented by Counsel. The Tribunal decided that the Applicant's claim that she had been constructively unfairly dismissed failed and it dismissed her claim to have been dismissed under Employment Rights Act 1996 Section 103A i.e. automatically unfair for having made a protected disclosure. The Chairman in exercise of the power conferred on him by Rule 13(5) of the Employment Tribunal Rules of Procedure 2001 refused the application of the Applicant for a review of the decision, in a decision registered on 3 June 2003.
3. The substantive hearing had been conducted pursuant to directions given by a different chairman Ms A F W Woolley recorded on 16 July 2002. In those directions Ms Woolley said as follows:

"The applicant explained that her allegation was that she was dismissed and that the reason for her dismissal was that she had made public interest disclosures to the respondents and others in respect of a request to her to change her evidence on the files relating to LF, closing a children's home, and the respondents arranging a case conference in breach of the appropriate procedures. The Chairman gave her some guidance on what matters would be relevant and explained what constructive dismissal was. The applicant gave some detail of her allegations.

The Chairman explained to the applicant that it was not a proper use of the tribunal proceedings to "clear her name" and the tribunal would not allow irrelevant issues to be pursued."

4. The issues had thus been defined by the Employment Tribunal. The Respondent denied the allegations. As well as dismissing the Applicant's claims, the Tribunal ordered a costs hearing to be conducted pursuant to an application by the Respondent. I understand that has not yet been held.

The Appeal

5. The Applicant complains in the Notice of Appeal that the Tribunal erred in law and also conducted an unfair hearing. That is very much a shortened version of the Applicant's full case which is principally that the decision was perverse and that her ECHR rights were breached. She alleges a travesty of justice and collusion between Counsel for the Respondent and various chairmen of Tribunals in Manchester including the chairman Mr Russell. She alleges that the witnesses for the Respondent committed perjury and were engaged together with the Employment Tribunal in a campaign to pervert the course of justice.
6. The relief the Applicant seeks is that the Employment Appeal Tribunal should involve the CPS in bringing to justice those who have committed criminal offences in the course of the Tribunal proceedings. She relies on a number of civil and criminal law statutes.

The Facts

7. The Respondent is a local authority in the North West. The Applicant is a social worker and she is also secretary of her union branch NATFHE. She is a consultant on programmes known as the workplace basic skills initiative and skills for life. She was born in 1948 and during the period under review was in receipt of a number of medical certificates relating to stress. Although she made a large number of complaints before the Tribunal two still seem to be potentially relevant.
8. In October 2000 the Applicant was involved in a Court hearing during which she alleged a solicitor for the Respondent told her to adulterate a file in respect of a child LF. The Tribunal heard the solicitor, found her evidence to be credible and rejected that complaint. Shortly thereafter the Applicant purported to submit her resignation. On 8 February 2001 she used the Respondent's whistle-blowing line to make a protected disclosure concerning the closure of Fylde Community School at which some of the Applicant's social work clients were in residence. The disclosure was made to Mr Giddings, the responsible officer of the Respondent who indicated that he would look into her concerns. The Applicant did not at any stage register a formal whistle-blowing complaint.
9. On 15 August 2001 the Applicant resigned and on further reflection stood by her resignation pursuant to a letter of 28 August 2001.

The Relevant Legislation

10. the definition of dismissal is found in Employment Rights Act 1996 s 95, and the regime for protected disclosures in section 103A

"Section 95(1)(c)

(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.

[103A Protected disclosure

An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure."

Application

11. The Tribunal directed itself by reference to both of those sections and it seems to me correctly directed itself by reference to the tests for determining whether a constructive dismissal has occurred. See paragraphs 8 and 9 of the reasons. The Tribunal found on the evidence that there was not a breach of the contract of employment, fundamental or otherwise, entitling the Applicant to resign. That it seems to me as a matter of pure fact having looked at the evidence which cannot be challenged. Since the Tribunal found there was no dismissal it was not necessary for it to consider the reason for dismissal or fairness under Sections 98(1), 98(2) and 98(4) of the Act. Thus the only substantive point of law identified in the Applicant's Notice of Appeal and skeleton argument i.e. that the Tribunal failed to consider Section 98(4) does not arise.
12. As to Section 103A, the Tribunal found that the Applicant had conceded that if Mr Giddings did not report to anyone the content of her complaint on 8 February 2001 her complaint would fail. That was the finding, thus it failed. In those circumstances neither of the substantive points raised by the Applicant discloses a question of law.

Procedure

13. On the other hand, the Applicant makes serious allegations of breach of duty by the Employment Tribunal Chairman. Since the Chairman acts as part of a Tribunal of three it must be assumed that the complaints are weighed against all three members of the Tribunal, although of course the Chairman with the active conduct of the case bears the brunt of the Applicant's criticisms. These are direct and personal. They have all been dealt with by the Chairman in his decision on review. It seems to me that the majority of the Applicant's complaints relate to legitimate case management decision made by the Tribunal and reported by the Chairman on behalf of it. The opening paragraphs of the substantive decision contained an explanation by the Tribunal of its approach to the Applicant. It found her not a reliable witness. It gave cogent examples of how she had failed to follow directions as to the conduct of the case and to see obvious points. During the course of the hearing the Applicant in writing complained about the procedure and those matters are dealt with in the opening paragraphs of the decision.
14. All courts and tribunals are now required to consider most carefully the effective case management of cases in front of them. It must be remembered that a tribunal has to guard not only the interests of the Applicant but of the Respondent and of the many witnesses as in this case who are called by either side and who give up their time. Similarly a balance must be struck between the interests of the parties in any given case and those other parties who seek to have their cases determined. Given finite resources and time, case management is now prescribed by the 2001 rules which involves an even disposition between the parties in any given case and the case load of the Tribunal office.
15. This was a very long case. No doubt the cross examination of the Applicant and her witnesses by Counsel appeared to her to be harsh, but the Chairman on behalf of the Tribunal has indicated that the cross examination was quite proper. I am in no doubt that the Applicant felt most strongly about the issues which affected the last stages of her working life with the Respondent and still does. I have no doubt that she has been under considerable stress, and has yet been able to obtain support from others in her community. I am charged with considering whether questions of law arise on the Notice of Appeal and I have decided that the Registrar was correct when she rejected the Notice of Appeal and I, having had the opportunity to read a good more than the Registrar read, and of course to hear the Applicant making her submissions and her post-hearing submissions, come to the same conclusion. The application is dismissed. No further action will be taken on this case and the appeal is hereby dismissed.