United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P MICHELL (of Counsel) Inst ructed by: Messrs. Bird & Bird Solicitors 90 Fetter Lane London EC4A 1JP
For the Respondent	MS H WINSTONE (of Counsel) Instructed by: Messrs Quantrills Solicitors The Peninsula Business Centre Wherstead Ipswich IP9 2BB

SUMMARY

Unfair Dismissal

Appeal against finding by ET of a constructive dismissal, following use of Burns v. Consignia procedure – appeal dismissed.


 


HIS HONOUR JUDGE PROPHET

1. On 4 February 2003 Ms Verney resigned from her employment with Rapid Electronics Limited with immediate effect. She presented through solicitors an Application to the Employment Tribunal at Bury St Edmunds on 9 April 2003 complaining of an unfair dismissal and sex discrimination. The employers, also through solicitors, resisted the complaints.
2. The case came before an Employment Tribunal sitting at Bury St Edmunds on three days in November 2003 and three days in March 2004, the last two days being, as we understand it, a Chambers meeting. The Chairman was Mr Cole and the lay members Mrs Clements and Mr Thompson. Ms Verney was represented by Mr Quantrill, Solicitor and the employers by Mr Cheves of Counsel.
3. The applicant had incidentally now become, presumably through marriage, Mrs Andrews but for all the purposes of the case was continued to be referred to as Ms Verney.
4. She was adjudged by the Employment Tribunal in a reserved Decision to have been constructively dismissed and that that dismissal was unfair. Her complaints relating to sex discrimination were partly successful. It followed that a remedy hearing was necessary but this has not yet taken place.
5. The employer sought a review by the Employment Tribunal of the finding of an unfair dismissal but that was rejected by the Chairman as being an Application which had no reasonable prospect of success. A Notice of Appeal dated 5 May 2004 was then presented to this Tribunal. That was set down for a preliminary hearing by an Order of His Honour Judge Birtles dated 17 May 2004.
6. That preliminary hearing was held on 5 July 2004 with the President of the Employment Appeal Tribunal Burton J presiding. The outcome was that under the principle set out in Burns v Consignia plc No. 2 [2004] IRLR 425, the Employment Tribunal was requested to answer a question posed by the Employment Appeal Tribunal. That is to say, whether the statements or statement made to the applicant by Mr Lee, the employer's Managing Director, on 30 January 2003 in relation to a missing £70,000, was sufficient in itself to amount to a fundamental breach of contract such as to constitute a constructive dismissal.
7. However, instead of dealing shortly with that question, unfortunately the Employment Tribunal choose to provide an elaborate response in the form of Further Extended Reasons. Following that response Burton J ordered on 3 September 2004 that the preliminary hearing be restored and that hearing took place on 26 October 2004. It was followed by a further Judgment by Burton J, in which he expressed concerns. First, that there had been in his view, no clear answer to the question posed. Secondly, that in the second so-called Decision and Reasons, there seemed to be statements inconsistent with what the Employment Tribunal had said in the original Decision, which the President felt could, in particular, could cause difficulties at the remedies hearing, which had, of course, not yet taken place.
8. Burton J then passed the matter for a full Hearing before this Appeal Tribunal and we are constituted today to conduct that full Hearing. The Appellant is represented by Mr Michell of Counsel and the Respondent by Ms Winstone of Counsel. Mr Michell has helpfully indicated that the only matter with which we are called upon to decide today is in respect of the Appeal on the constructive unfair dismissal
9. Mr Michell has taken us through various matters which could well be said to justify criticism of the way the Employment Tribunal chose to set out its reasons in the original Decision. Thus, after apparently rejecting a submission that this case could be a "last straw" situation they later reintroduced straws into the equation. It might well be said that the Employment Tribunal appears to some extent to have lost sight of the essential question posed by Section 95 (1)c of the Employment Rights Act 1996, which requires an Employment Tribunal to examine the conduct of the employer in relation to the resignation of the employee.
10. However, following the further analysis of the reasons by Burton J, it seems to be accepted that the crucial issue was whether the conduct of Mr Lee on 30 January 2003 in speaking to the Applicant about a missing £70,000 was in itself sufficient to constitute a constructive dismissal. It is, therefore, unfortunate that the Employment Tribunal did not in reasonably short form simply answer the question put to it by Burton J. The principal difficulty which has arisen is that purporting to give an answer, the Employment Tribunal said this:

"It follows we answer in the affirmative the question put to us. We are entirely satisfied that the reference to £70,000 of itself, taken together with the circumstances in which that reference was made, was sufficient to enable the Applicant to resign as a constructive dismissal."

11. As Mr Michell has put to us, and it is a strong argument, without the words 'taken together with the circumstances in which that reference was made' the answer would have been straightforward, and this appeal perhaps unnecessary.
12. What then is the significance of those words? We have listened carefully to the submissions of Mr Michell and Ms Winstone on that matter and there is merit in both. However we have concluded unanimously that the reference to the circumstances means the manner and attitude of Mr Lee to the Applicant and, in particular, to how he framed and presented to her his remarks about the £70,000. We can well understand that that was regarded by the Employment Tribunal as unacceptable and justified her in leaving her employment. Such a conclusion was one the Employment Tribunal was entitled to reach. On that basis therefore we are satisfied that the appeal in respect of the finding of a constructive unfair dismissal fails and is dismissed.
13. We cannot leave the appeal, however, without turning to the matters raised by Burton J which could bear on remedy. Those concerns arise from the totally inappropriate action of the Employment Tribunal in choosing to set out Further Reasoning in its so-called Second Decision, which was not called f, and has unhappily allowed Mr Michell to point out inconsistencies between what was said in the Further Reasons with what was said in the original Decision and Reasons. It is unfortunate that those apparently inconsistent views are on matters which could bear upon remedy, a matter which the Employment Tribunal has not yet properly addressed.
14. What then should we do about the remedy hearing, which, other than through settlement, is necessary to complete this case at the Employment Tribunal? Both Counsel have rightly referred us to the decision of the Employment Appeal Tribunal with the President presiding in Sinclair Roche & Temperley v Heard [2004] IRLR 763, because the question arises whether it is appropriate for this same Employment Tribunal to deal with remedy, having regard to the matters which have arisen.
15. It is Mr Michell's view that remedy should be referred to a differently constituted Employment Tribunal but Ms Winstone argues that the right course to adopt is for it to go to the same Employment Tribunal.
16. In our view this is a finely balanced decision for us to make. On the one hand, there is the argument that this current Employment Tribunal has spent five days considering this matter already and is fully familiar with all the background. On the other hand, there are the matters which Mr Michell has quite properly referred us to today which can be said to cause us concern, as well as they did indeed to the President, as to what will happen when the matter goes before the remedy hearing. In the end, we have decided that we have to follow the reasoning of the President in the Sinclair Roche case, that employment tribunals must be trusted to approach their duties in a professional way. That means that in this case we have decided that the case the matter of remedy should be dealt with by the same Employment Tribunal. They will have the advantage of the high degree of advocacy as has been presented to us today, and we are confident that that will ensure that, notwithstanding any statements which have already been made, their approach to the assessment of remedy will take place with completely open minds. That means in particular that the Employment Tribunal must deal afresh with issues of causation/loss on the basis that such issues have yet to be determined.