United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DANIEL LEADER (of Counsel) Instructed by: Messrs Newsome Vaughan Solicitors Greyfriars House Greyfriars Lane Coventry CV1 2GW
For the Respondent	MR FRANCIS SCOON (Legal Adviser) Messrs DWF Solicitors Centurion House 129 Deansgate Manchester M3 3AA


 


SUMMARY

Practice and Procedure

Unfair dismissal

Adequacy of reasons for claim in which the ET made findings of fact about credibility of a witness or different issues with no attempt to explain why it found the witness credible was one matter and not in the other matter and when ET made no reference at all to a witness whose account supplied the conclusion of the Claimant.


 


HIS HONOUR JUDGE PUGSLEY

1. This is an appeal from a decision of the Birmingham Employment Tribunal in which the Tribunal found for the Claimant on certain matters concerning holiday pay but dismissed the Claimant's application for unfair dismissal.
2. The circumstances of the case are straightforward. Miss Robinson, a young person was employed by the Respondents from 1 October 2004 until 1 March 2006. The Respondent employs some 30 employees over the 4 sites. Miss Robinson worked at the Coventry site, which provides facilities for a total of 49 children. She began to train as a nursery nurse assistant. This required her to take a college course as well as working for the Respondents. In October 2004, as a trainee nursery nurse, she was fully integrated into the Respondent's workforce being subject to their rules of procedure. She still had some contact with Rathbone, who were the opportunity provider.
3. There were some problems which had led to a suspension in 2005, pending an investigation. That was resolved and Miss Robinson continued to work. In February 2006 Mr Chester was handed a written complaint about Miss Robinson, from one of the employees, Miss Bates. The complaint stated that Miss Robinson forced a piece of cucumber into the mouth of a child and she called another child "thick". These matters were said to have occurred on 27 February 2006. Miss Robinson was on a day release at the college when the complaint was handed to Mr Chester. On 1 March Mr Chester asked Miss Robinson to go to his office so he could have a word with her. He read out the statement, according to the Tribunal, that Miss Bates had made. Miss Robinson said that the first incident had occurred; she could not remember the second. He then told her that, according to the findings of fact made by the Tribunal, that she would be suspended pending a full investigation, read out the disciplinary process, whereby Miss Robinson wrote out a brief statement followed by a short resignation letter. That resignation is in the bundle. I do not mean to be at all patronising, but it is in very, very terse forms and is a letter which does not show immediately the circumstances very well.
4. It was the Claimant's case that she was effectively bullied into resigning, that she was told that she would lose her job if she did not resign, and be reported to Social Services. Mr Chester and Miss Robinson had very different accounts. Mr Chester's evidence, which the Tribunal found acceptable in paragraph 15, is that he told Miss Robinson that he had no option but to suspend her pending the full circumstances, given the seriousness of the complaint that was made. The Tribunal said that was a proper course to take. They preferred his evidence to Miss Robinson's evidence on the basis that they found her very inconsistent and vague.
5. The Tribunal said, taking everything into account, they much preferred Mr Chester's evidence. There was no issue of there being a breach of the duty of mutual trust and confidence and, therefore, this was not an unfair constructive dismissal. They did take Mr Chester to task that he did not try to talk to her about her decision, or encourage her to go away and think about it overnight and talk it through with her parents. Although it could have been dealt with in a more sensitive way the Tribunal concluded that it did not impact on whether Miss Robinson resigned in response to a fundamental breach of contract by the Respondent.
6. The Claimant, it is argued, did resign in her letter of 3 March. What she wanted to do, according to this letter, was to withdraw her earlier resignation:

"I wish to withdraw my resignation dated 1 March 2006. I felt I was given very little choice at the time and, therefore was written whilst under duress. I have had time to think and reflect on this matter. ['I wish to resign' I think it should be but it is 'I which'] I wish to resign from my post as Nursery Nurse Assistant with effect from today's date of 3 March 2006, the reasons for which I have set out as follows."

The Claimant's mother worked for a firm of solicitors and advice was taken. It is obvious that letter was showing a rather greater depth of understanding of employment issues than her original letter. It was wholly appropriate for her to take advice.

7. It is submitted to us by the Respondent at the end of the day this Tribunal decision tells the parties why they have won, why they have lost and counsel has cited those cases well known to this Tribunal about perversity. It is important that we are not seduced into thinking we should do the job of the Employment Tribunal and make findings of fact. If we may say so, with respect to Mr Leader, who has been very helpful and always scrupulously polite, at times he seemed to be treating us as though we have powers we do not have. Flattered though we were to be arrogated such powers by him, it simply is not open to us to rewrite history and make our own findings of fact.
8. Even taking into account the difficulties concerning perversity we have a sense of unease which does lead us to intervene. In paragraphs 15 and 17 the Tribunal make very clear summaries of findings of fact. In paragraph 15 they found that they preferred the evidence of Mr Chester. In paragraph 17 they made a finding of fact about the issue of a contract on particulars of employment. It is not quite clear, and we do not wish to be over censorious, what the finding concerning Mr Chester was, but it certainly was a finding not to his advantage. They said no contract of employment was every issued. They said they attached little weight to the document that Mr Chester sought to rely on, at pages 86-89, since it was an undated, unsigned pro forma document, it is left blank in relation to employee details. In the circumstances the Tribunal drew the inference from the failure by the Respondent to produce any contractual document related specifically to Miss Robinson, or any records of such documentation, that no such document existed.
9. Although they said that the failure to issue employment particulars was not, they said, an act that is likely to destroy or seriously damage the term of trust and confidence in making these findings about the role of Mr Chester the Tribunal was, as Mr Leader points out, making a serious allegation against him. Further, it is true to say that they made adverse findings by Mr Chester about, in particular, what he said about the employment status of the employee. (see paragraph 13 of the decision).
10. Ultimately our concerns can be summarised in this way. Tribunals can, and frequently do, reach different conclusions about various issues before them. It is a statement of the obvious that Tribunals may find a witness credible as to one issue but not as to another. Indeed making blanket over-arching findings of credibility can in a complex case call into questioning the integrity of the fact finding process.
11. Tribunal decisions should not be judged by an unrealistic yardstick. We are aware that our reaction can only by its nature be a matter of impression. Although well drafted the decision reads like a shopping list of issues and we are concerned there was no analysis of why the Tribunal should be so critical of Mr Chester at para 13 and para 17 and yet accept his evidence at para 15. The obvious answer that at para 15 they were also considering the evidence of Ms Robinson, the Claimant, is somewhat blunted by the fact that in considering her evidence the Tribunal make no mention of the evidence of her mother, Mrs Sandra Robinson. Whilst the mother's evidence cannot be said, in the strict legal sense, to corroborate her daughter's account it is evidence capable of showing the consistency of her daughter's account.
12. We allow this appeal and send this case back to a freshly constituted Tribunal to hear her case from the beginning. We do not consider it would be fair to send it back to the same Tribunal. We consider the original decision did not set out in sufficient detail the basis of its findings especially in view of its failure to analyse the evidence of the Claimant's mother.