United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr R Rixon (Solicitor) Peninsula Business Services Ltd (Litigation) Riverside New Bailey Street Manchester M3 5PB
For the Respondent	Mr R Thacker (of Counsel) Instructed by: Messrs John Halson Solicitors 26 Hope Street Liverpool L1 9BX


 


SUMMARY

Unfair dismissal

Public interest disclosure

Claimant resigned and claimed victimization due to a protected disclosure. Split decision – Chairman for minority. Adequacy of reasons and as perversity.


 


HIS HONOUR JUDGE PUGSLEY

1. This is an appeal from a majority decision of the Employment Tribunal sitting at Liverpool that the Claimant was unfairly dismissed and that the Claimant was subjected to a detriment on the ground that she had made a protected disclosure. The Respondent employers were a charity offering educational and other opportunities to the local community. Miss Hartel, the Claimant, was its finance and administrative officer and began working in the centre in February 2003. She reported to a Mr Saif who was its executive officer and a trustee.
2. In October 2004 the Centre was approached by and subsequently recruited a new employee who is referred to as PH in the decision. He was to have responsibility for public relations and was to assist in funding and administrative matters. Mr Saif and Ms Ahmed, an employee, knew that PH had a conviction for a sexual offence. There was an issue, which the Tribunal did not resolve as to whether the Claimant knew about the conviction at that stage.
3. By December 2004 on any view it is clear that Miss Hartel did know about the conviction because she was expressing her concern about PH's contact with children at the centre and she also claimed that there had been inappropriate behaviour between PH and specific children. A meeting of the senior management was convened and a letter was drafted and sent to PH setting out the terms of his employment and instructing him that he was not to have contact with children under the age of 18.
4. Towards the end of January 2005 the CRB check arrived which indicated the gravity of the conviction. A letter dated 26 January was produced which terminated his employment. Miss Hartel claimed that this letter was fabricated after her departure but the Tribunal rejected this suggestion.
5. In February 2005 Miss Hartel took on responsibility for the staff of the youth club at the centre. She had difficulties with the youth workers for whom she had responsibility and a grievance was raised against her but as the youth workers refused to cooperate in the investigation the matter was taken no further. There were other difficulties between Mr Saif and the Claimant which were chronicled in the decision. After a short period off work due to stress Miss Hartel attended a meeting on Wednesday 5 October. There was a fundamental conflict between the parties as to what was said at that meeting. On 7 October Miss Hartel resigned setting out the reasons in the letter of the same date.
6. The central thrust of the Claimant's case was that she had been unfairly constructively dismissed because Mr Saif had been in breach of the implied term of mutual trust and confidence in that, upset by her persistence in raising the matter of PH, he had deliberately embarked upon a campaign to undermine her position; that her appointment to supervise the youth workers was a ploy to set her up to fail and that even when actions which were taken that might be seen as a positive step (such as a provision of a private office for her) they were to be seen against a background of his intention to isolate her and drive a wedge between her and her colleagues. The majority of the Tribunal accepted this account (see paragraphs 46-56).
7. The Chairman took a fundamentally different view of the meeting of 5 October. He did not accept the Claimant was a credible witness and he considered the steps taken by Mr Saif were not motivated by any desire to isolate the Claimant (see paragraphs 57-70 of the decision).
8. We accept the point made by Mr Thacker that this Tribunal decision does not fall into the error which is unhappily commonly the case where a Tribunal decision faithfully and methodically records the evidence it hears on one side and then the evidence of the other, but at no stage makes findings of fact as to what it accepts with sufficient clarity so that one can see why they have reached the conclusion they did.
9. However, we are concerned that the decision falls into another error namely of allowing its conclusions to become its reasons. We are all of the view that having read this decision the way in which it emerges does not enable us to follow a chain of reasoning that leads either to the majority decision or the minority decision. Whilst it is abundantly clear that the majority view accepted the evidence of the Claimant on crucial issues and the minority Chairman did not, it is not possible to identify the route by which this destination was arrived at by either majority or the minority members of the Tribunal. We are united in saying that at times the judgment comes across as though its conclusions have become its reasons.
10. Without being exhaustive we cite the following examples in the majority decision for this conclusion. At paragraph 53 of the judgment the majority preferred the evidence of the Claimant over that of Mr Saif with regards to the meeting on 5 October. No reasons were given other than:

"They considered Ms Mashjari and Ms Abdulla had been given information by Mr Saif that was fundamentally untrue, with the view to turning them against their former friend."

No indication is given as to what this information was, how it was conveyed to Ms Mashjari and Ms Abdulla, why the information was not fundamentally true.

11. The Tribunal noted at paragraph 58 of its decision:

"To a large extent there was no evidencial conflict between the parties as to how Mr Saif had behaved towards Miss Hartel."

The issue was the interpretation to be put on these matters.

12. The conclusion of the majority was that the treatment melted out to Miss Hartel was because she had repeatedly expressed to Mr Saif her concerns about PH given that she had seen him in the company of the children in the centre. There is no analysis of her letter of 7 October in which over several pages she gave her reasons for resigning.
13. The indelible impression left upon all of us after reading the decision is that, whilst we are aware that the majority accepted the Claimant's evidence on most matters, and were prepared to draw the inference that Mr Saif was pursuing a campaign against her, the Chairman for his own reasons did not accept that position because he did not accept the credibility of the Claimant. However, there is little in either the majority decision or the minority decision to explain to anyone the primary facts as to why each reached the decision they did.
14. If one turns to the minority decision it is open to very similar objections. At paragraph 67 there is stark sentence:

"Miss Hartel claimed that certain documents had been fabricated when they were clearly authentic."

It is difficult to see from the face of the decision whether or not this is a reference to a suggestion by Miss Hartel which surfaces in paragraph 15 of the decision that the letter terminating PH's employment had been fabricated after her departure. The Tribunal – and on this they appear to be unanimous – stated "we did not believe that was the case". There is no analysis in either the majority or the minority decision as to the significance of this finding which would have been open for the majority to point out that although they were satisfied that the letter had not been fabricated after her departure nevertheless they believe they were good reasons for Miss Hartel to make this allegation. Similarly the decision of the Chairman makes no mention of the fact that he rejects that possibility.

15. We do not underestimate the difficulties that face Members and the Chairman in drafting a decision on a case that had lasted for four days and when there was a further day of discussion in chambers. Sadly we have come to the view in this case that this does not satisfy the requirements of allowing the parties to know what was the basis on which their account was accepted or rejected. The decision reads, as we have already indicated, as a series of conclusions without there being any underlying and underpinning findings of fact that enable anyone to know why such inferences have been drawn.
16. This is not legal pedantry. Those who come to a Tribunal have a legitimate right to know the basis upon which their claim has been accepted or been rejected. It is for a person who has lost their job, a matter of great stress and strain but, certainly in small organisations, the suggestion that one has behaved unfairly is understandably taken as a very personalised attack on the person making the decision to dismiss. As a matter of elementary justice there should be something other then a shopping list of bald conclusions. We have come to the view that this decision is fundamentally flawed in that it does not satisfy the criteria set out in Meek v City of Birmingham District Council [1987] IRLR 250 CA and 30(5) of the Employment Regulations of enabling either party to see why they have won and why they have lost but merely tells them what conclusions have been reached. In no way are we suggesting that it is necessary to make subsidiary findings of fact on every matter ventilated in a four day Tribunal hearing.
17. Ultimately we accept that our decision is a matter of impression. However all of us reading this decision have come to the view, having heard the argument before us, that whilst we are unimpressed with the arguments of perversity, we do not consider this is a case in which the decision fulfils the requirements of setting out with sufficient particularity the findings of fact and the inferences that could be drawn there from. We therefore allow the appeal. In view of the terms of our decision we consider that this is a case where it has to be heard afresh by a newly constituted Tribunal. Given the split between the Tribunal and given, in our view, the fundamental nature of the flaw we have unhappily come to the view that it has to be reheard by a separate Tribunal. We earnestly urge the parties to see whether some sort of attempt to resolve their differences can be reached in view of the heavy incident of costs that inevitably follows.
18. In deference to the argument raised as to perversity before us as we should say this. The Employment Tribunal has the responsibility for making findings of fact and, as was made clear in the judgement of Mummery LJ in Yeboah v Crofton [2002] IRLR 634, the occasions when perversity will succeed are rare since an overwhelming case needs to be made that an Employment Tribunal reached a decision which no reasonable Tribunal would have reached. As was pointed out in The Chief Constable of the Thames Valley Police v Kellaway [2000] IRLR 170 the fact that a Tribunal is divided may strengthen the integrity of a Tribunal's decision since it is often a good indicator of the care with which individual members of a Tribunal scrutinise the evidence.
19. Many of the points made by Mr Rixon on behalf of the Appellant have the underlying premise that a Tribunal decision is perverse if the Members take a different view of the evidence than the Chairman and that it is a mark of perversity to accept the evidence of a witness on one matter but not on another matter. The older employment cases used to refer to industrial tribunals as industrial juries. It is trite law to say any Tribunal of fact may accept some, all or none of a witness's evidence.
20. Mr Thacker who appears for the Respondent did say that whatever the result of our deliberations he would want to consider making an application for costs in view of the way the case has been conducted by the Appellant and in particular its failure to particularise matters of perversity. We indicate it would be inappropriate to consider that before we have reached a decision. Such an application may be made in writing to us within 21 days of the promulgation of their decision and the Appellant would have 14 days therefore to put in any submissions in reply.