United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Miss A Morgan (of Counsel) Instructed by: General Healthcare Group Ltd Legal Services 9th & 10th Floors 66 Chiltern Street London W1U 6GH
For the Respondent	Mrs S Hornblower (of Counsel) Instructed by: The Employment Tribunal Advocacy Service 27 Coombe Way Kings Tamerton Plymouth PL5 2HA


 


SUMMARY

Practice and Procedure – Bias, misconduct and procedural irregularity

The judgment of the Employment Tribunal was set aside for not only did it fail to comply with any part of rule 30(6), but it failed to give any account of the facts, issues, submissions, law and reasons for the findings. Remitted to a fresh Employment Tribunal and subsequent remedy judgment set aside.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about Employment Tribunal procedure in the giving of reasons for a judgment. The context is a pair of identical claims of constructive unfair dismissal. The judgment represents the views of all three members. We will refer to the parties as the Claimants and the Respondent.

Introduction

2. It is an appeal by the Respondent in those proceedings against a judgment of an Employment Tribunal sitting at Watford over 2 days. We will correct the record to show 25 and 26 July 2006. The Chairman was Mr J Metcalf and the reasons were registered on Friday 18 August 2006. It was followed by a remedies hearing at which substantial awards were made to the Claimants on 29 August 2006. The Claimants represented themselves; the Respondent was represented by a consultant. Today the parties are represented respectively by Mrs Sarah Hornblower and Miss Adrienne Morgan of Counsel. The Claimants claimed constructive unfair dismissal, the Respondent contended the Claimants resigned and were not unfairly dismissed actually or constructively. The Tribunal decided in their favour. The Respondent appeals.
3. Directions sending this appeal to a full hearing were given by Underhill J who noted as follows.

The appeal is on Meek grounds, but for once entirely justified: the reasons fail to give any coherent account of the facts or the issues or the Tribunal's reasoning - I have considered whether they could be remedied by a Barke order, but they seem to me so radically defective that I do not think it would be right to go down that route.

The legislation

4. The relevant provisions of the legislation are section 95(1) of the Employment Rights Act which defines dismissal and section 98 which deals with general fairness. The 2004 Rules of Procedure set out how the reasons of an Employment Tribunal should be recorded.

"30(6) Written reasons for a judgment shall include the following information-

(a) the issues which the tribunal or chairman has identified as being relevant to the claim;

(b) if some identified issues were not determined, what those issues were and why they were not determined;

(c) findings of fact relevant to the issues which have been determined;

(d) a concise statement of the applicable law;

(e) how the relevant findings of fact and applicable law have been applied in order to determine the issues; and

The background

5. We are unable to give any coherent account of any of the matters prescribed by rule 30(6) since they have not been recorded at all by the Tribunal. We cannot even give an elementary account of the facts, or of the dispute between the parties. The reasons contain none of the five points identified in the rule. There are unfinished sentences and conditional clauses, (paragraph 7), a mixture of the first person singular and plural so one is unable to tell which is the Chairman's reflection and that of the Tribunal as a whole. The judgment contains meaningless platitudes. For example, we are told one should not undermine one's own supervisors; and the general rule at work is that people keep their heads down: see paragraphs 3 and 6. Some conduct, it is said, speaks volumes but we are not told what the conduct is or how it speaks. A series of failures by management is alluded to, but we are not told what they are. A manager, Miss Bruno, is criticised but she does not exist..
6. This was a case of constructive dismissal based on the last draw doctrine, yet none of the events, except the last, is described. We assume it is the last for only one date is contained within the reasons and we do not know such elementary matters as the dates on which the Claimants were employed or their employment terminated. We do not know the nature of the employer's business or of the Claimant's jobs, nor of the roles played by the actors in this drama.
7. None of this can be excused. The Claimants themselves produced as part of their claim form a very carefully typed explanation of the events set out in chronological order with an explanation of abbreviations and a cast list of 15. The Respondent's response is equally carefully written with a paragraph by paragraph response to that by the Claimants. Routine and bespoke case management directions were given in the case. We understand that the relevant witnesses gave evidence in accordance with written witness statements and were examined.

The Respondent's case

8. The Respondent submitted that the Employment Tribunal had erred in that it failed to comply with elementary rules required of a judicial body under a statutory duty to give reasons. We did not call upon Miss Morgan to add orally to her skeleton argument.

The Claimants' case

9. On behalf of the Claimants it is accepted by Mrs Hornblower that the reasons are inadequate yet they are fit for the purpose. They do meet the minimum standards at least in giving an account of the facts, although she was unable to identify any of the other four matters set out in rule 30(6) which are generally required. It is submitted that there is no fatal error in the judgment.

The legal principles

10. The legal principles are clear and are not in dispute since both counsel have helpfully agreed the statement of the law as put forward by Miss Morgan. In short a Tribunal is under a duty to give adequate reasons: see Meek v City of Birmingham District Council [1987] IRLR 240 CA. Failure to make appropriate findings will lead to the judgment being set aside: see English v Emery Reimbold & Strick Ltd [2003] IRLR 710 CA. When dealing with a repudiatory breach of contract the Tribunal should set out the totality of an employer's behaviour said to constitute such repudiation: see Logan v Commissioners of Customs and Excise [2004] IRLR 63 and Turner v Vestric Ltd [1981] IRLR 23. The requirements in rule 30(6) are not mandatory in every case so long as the important matters relevant to the judgment are set out. But a Tribunal which does not follow the broad outline in these rules will be at risk of failing to do its duty.

Conclusions

11. We uphold the submissions of the Respondent and allow the appeal. We agree with Underhill J in his provisional view of the case. This judgment fell woefully below the standards to be required which are no different on a Friday afternoon in midsummer. The Chairman had three weeks after giving the oral Judgment in which to approve and perfect the transcript and he appears not to have done so.
12. Over the last decade the training of Employment Tribunal Chairman under the leadership of its English and Scottish Presidents has become sophisticated and impressive. In May 2006 Thomas LJ and Pill LJ speaking in Cardiff at the annual conference of the council of Employment Tribunal Chairman praised the very high standards of judgment writing and the same was said the previous year at the Employment Law Bar Association by its President Mummery LJ, of course a former President of the EAT. The judgment in the present case is in a form which would not even have passed muster in the very early days of this jurisdiction, when in 1972 Industrial Tribunals would customarily hear three or four unfair dismissals in a day and give reasons. The judgment could be utilised as an object lesson of what not to do when writing reasons. Not only is it deficient in every requirement under rule 30 but it is devoid of the most elementary of features of any case. On reading it, one feels as though one has entered half way through a long judgment where all the necessary findings of fact have been made and an outline of the applicable law has been given.
13. For these reasons the appeal is allowed and the judgment set aside. The case will be remitted. We have heard argument from counsel and have decided that this case is so fatally flawed that applying the principles in Sinclair Roche & Temperley v Heard [2004] IRLR 763 EAT it is not appropriate to send it back to this Tribunal and a fresh Tribunal will be constituted. It is agreed that the remedy judgment will be set aside as well. We have a great deal of sympathy for the three parties who carefully prepared their cases and had a right to expect a higher standard from the Tribunal to which they applied. We would like very much to thank both counsel before us for their concise and expedient approach.