United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MICHAEL NORMAN (of Counsel) Instructed by: Messrs Dutton Gregory Solicitors Trussell House 23 St Peter Street Winchester Hampshire SO23 8BT
For the Respondent	MR STEPHEN WHALE (of Counsel) Instructed by: The Stokes Partnership Solicitors Kingfisher House Market Square Crewkerne Somerset TA18 7LH


 


SUMMARY

Unfair dismissal – Constructive dismissal

Practice and Procedure – Perversity – Bias, misconduct, and procedural irregularity

ET finding of fact, critical to conclusion on Constructive Dismissal, falling between evidence given by witnesses. Whether no evidence to support that finding (perversity); whether procedural unfairness in not giving parties an opportunity to make submissions on that possible finding of fact (procedural irregularity). Appeal dismissed.

HIS HONOUR PETER CLARK

1. This appeal concerns the Employment Tribunal's fact-finding role and the fairness of the proceedings. The parties before the Exeter Employment Tribunal, chaired by Employment Judge Housego, sitting with Ms Clarke and Mr Jacombs, were Mr Webster, Claimant, and Woodhouse School, Respondent. We shall so describe them. The Tribunal's judgment under appeal by the Respondent was promulgated with reasons on 20 June 2007.
2. Woodhouse School cares for female pupils aged between 9 and 18 who are severely disturbed and require substantial care. The owners are Mr and Mrs Moore. The claimant was recruited as head of care, commencing that employment on 9 November 2004. He resigned from the employment on 1 September 2006 with effect from 15 September.
3. By a claim form ET1, dated 14 December 2006, he complained of constructive unfair dismissal. The event which he alleged led to his resignation, amounting to a fundamental breach of the implied term of mutual trust and confidence, was described in his Particulars of Complaint at paragraph 4, thus:

"On or about 11 August 2006 the respondent instructed the claimant to terminate the employment of an employee, named Rowan Ward because she suffered from a disability, namely hearing difficulties."

4. In his witness statement dated 5 June 2007, at paragraphs 5.2 and 5.3 he said this:

"5.2 At the meeting of August 11^th, Sheena Murphy-Collett was introduced to me and the meeting commenced with a discussion regarding Rowan. I have produced a transcript of part of that discussion from the audio device itself. I only have about fifteen minutes of it because the device switched off, having reached the end of a folder. Later in the discussion, I was very clearly told to terminate Rowan's employment with Woodhouse.

5.3 That would be done by me (as instructed by Pat [Mr Moore]) writing to Rowan one month before her six month temporary contract finished, simply saying that her services were no longer needed. This was totally contrary to the real situation, as Rowan was most certainly needed …"

5. By way of background, the Tribunal found that in June 2006 the claimant recruited Ms Rowan Ward to the staff on a six-month probationary period. She had been profoundly bilaterally deaf since birth. At that time the Claimant had effective control over the school as Mr Moore was coming to the end of a period of recuperation following treatment for cancer. Mr Moore learnt of Ms Ward's recruitment shortly before she commenced employment on 12 June. The Tribunal found, reasons paragraph 18, that he was very worried by this. He had heard that Employment Tribunal awards for disability discrimination were unlimited and that a disability claim by Ms Ward could mean financial ruin for the school. He discussed his concern with the Claimant on several occasions between 6 June and 11 August 2006. Mr Moore then asked the Claimant to attend a meeting with him on 11 August. Also present at that meeting was Mrs Moore and Sheena Murphy-Collett, a person whom Mrs Moore had met at dog-training classes. She was retained and was paid to attend that meeting as she had Human Resources experience.
6. The Tribunal record (reasons paragraph 6) that if the Claimant established his central assertion that at that meeting Mr Moore instructed the Claimant to dismiss Rowan Ward by reason of her disability, his claim must succeed. Mr Norman, on behalf of the Respondent conceded as much. However, both Mr and Mrs Moore and Mrs Murphy-Collett denied that such an instruction was given.
7. In the event the Tribunal members were divided in their findings of fact. The minority member, Ms Clarke, accepted the Respondent's case that no instruction was given and she would have dismissed the claim. The majority, the Chairman and Mr Jacombs, took a different view in upholding the claim, but not one which amounted to complete acceptance of the Claimant's evidence. Their critical finding is at paragraph 41 of the reasons which reads as follows:

"Mr Jacombs and I think that the truth of the matter is that at no point in the meeting did Mr Moore say specific words to the effect:-

'I want you to give notice at the beginning of November to dismiss Rowan Ward and bring her employment to an end at the beginning of December'.

However, the combination of the three earlier discussions, the clear and recorded statement about "how we go about not employing her really" and then discussion about the mechanics of terminating her employment were as clear an instruction as could have been given without express words. Mr Webster correctly understood exactly what Mr Moore was meaning by his words. Sheena Murphy-Collett appeared a credible witness. In the transcripts which we have heard, she appears primarily concerned with offering advice rather than with listening, and we are prepared to allow the charitable explanation that she simply failed to pick up on what, to us, is blindingly obvious."

8. We interpose at this point that Mr Whale invited us to listen to a 15-minute tape recording of the beginning of the meeting held on 11 August. In the event, we have not found it necessary to do so.
9. Mr Norman takes essentially two points in this appeal. First, he submits that the Tribunal rejected the key factual assertion advanced by the Claimant in support of his case. Having done so, it ought to have found that the Claimant had failed to prove that he was constructively dismissed, an essential ingredient in his claim of unfair dismissal. Instead, he submits, the majority made a finding of fact unsupported by the evidence (perversity) a legitimate basis for appeal to this Tribunal (see Piggott v Jackson [1991] IRLR 309). Secondly, that that finding was radically different from the case advanced by the Claimant, and the Respondent was given no opportunity to make submissions or cross-examine the Claimant or draw out evidence from Mr Moore on the majority's ultimate finding, which in the event proved crucial to the outcome of the case: (procedural irregularity).
10. At a preliminary hearing of this appeal before HHJ Birtles and members on 28 November 2007, that division employed the Burns-Barke procedure to ask certain questions of the Tribunal, namely:

"(a) Please see paragraph 41 of the written reasons. What was the basis for the majority Employment Tribunal finding that at no point in the meeting did Mr Moore say to Mr Webster specific words to the effect that:-

'I want you to give notice at the beginning of November to dismiss Rowan Ward and bring her employment to an end at the beginning of December.'

(b) Did either party make submissions to the Employment Tribunal based on these facts or the possibility that Mr Moore did say it?"

11. The Chairman responded to that inquiry by letter dated 19 February 2008. He attached the whole of his notes of the hearing, not just his notes of evidence of those present at the meeting on 11 August, as requested at paragraph 6 of Judge Birtles' order, but also counsel's closing submissions and, somewhat unusually in our experience, his notes of the panel discussion held in private at the end of the hearing.
12. As to the first question posed by Judge Birtles, the Chairman explains that whilst the majority concluded that the Claimant had overstated his case and rejected his evidence that Mr Moore had given a direct, explicit instruction to the Claimant to dismiss Rowan Ward, nevertheless he clearly set out his intention and instruction to the Claimant to do so, along the lines of, "Who will rid me of this turbulent priest". Whilst, after many centuries, King Henry may still have a notional defence to a charge of conspiracy to murder Beckett, history has firmly judged that he is guilty of that crime. That was the view on the majority of all of the evidence of the present case.
13. As to the second question, we see from the Chairman's notes of closing submissions by counsel that Mr Norman submitted, in relation to the Claimant's account of the alleged instruction by Mr Moore of 11 August,

"its either misconceived, made up or exaggerated. It seems to us that the majority concluded that he had exaggerated or embellished his evidence, but that the sense of Mr Moore's direction was made clear to him, as Mr Moore intended."

14. In determining the two grounds of appeal advanced by Mr Norman, we are assisted by certain observations by the Court of Appeal in Judge v Crown Leisure Limited [2005] IRLR 823. In that case, the issue was whether, at the company's Christmas party, the special operations director, Mr Fannon, had explicitly promised the Claimant, a special operations manager, an increase in salary which was contractually binding. Failure to honour that promise, it was alleged, amounted to a fundamental breach of contract, entitling the Claimant to resign in circumstances amounting to constructive dismissal. Before the Tribunal, Mr Fannon denied that any such conversation had taken place at the party. The Tribunal did not accept either the Claimant or Mr Fannon's account given in evidence. Instead, they found that some casual conversation took place whereby Mr Fannon gave the Claimant some words of comfort and assurance that in due course he would achieve parity with the pay of his fellow operations managers, but that did not amount to a binding commitment as contended for by the Claimant.
15. In the Court of Appeal, the principal submission on behalf of the Claimant/Appellant was that the Tribunal's findings of fact about the party conversation ought not to have been made without giving the parties an opportunity to make submissions on the legal impact of such findings, it being accepted on behalf of the appellant that it was open to the Tribunal to make those findings.
16. We have taken particular note of what was said in that case by Smith LJ at paragraphs 20 to 21. She said:

"20. Mr Mulholland now accepts that it was open to the ET to make the findings of the fact that it made about what had been said at the Christmas party. He complains, and plainly with justification, that neither the Appellant nor the Respondent had contended for that finding and had not anticipated it. They had not had the opportunity to address the Tribunal upon the legal impact of that finding. Mr Mulholland submits that it is a cardinal principle of fairness that the parties should have the opportunity to be heard on any issue that is likely to be relevant to the decision. As a general proposition, that is obviously right. It is highly desirable that if a Tribunal foresees that it might make a finding of fact which has not been contended for, that possible finding should be raised with the parties during closing submissions. If the Tribunal does not realise what its findings of fact are likely to be until after the hearing has finished, it will usually be necessary to give the parties the opportunity to make further submissions, at least in writing, although not, in my view, necessarily by oral argument.

21. However, the giving of such an opportunity is not, in my judgment, an invariable requirement. That is so for two reasons. First, paragraph 11 of the Employment Tribunal Regulations gives the ET a wide discretion on procedural matters. It seems to me that that discretion is wide enough to encompass a decision as to the appropriate course to take where this kind of situation arises. In any event, if the legal effect of the findings of fact that are to be made is obviously and unarguably clear, no injustice will be done if the decision is promulgated without giving that opportunity. Even if an opportunity should have been given and was not, the consequence will not necessarily be that an appellate court will set aside the decision of the lower court. It will only do so if it concludes that the lower court's application of the law was wrong."

17. At paragraph 26, Sir Martin Nourse said this:

"I read again what the Employment Tribunal said at the end of paragraph 9 of their extended reasons: 'The Tribunal was not, however, satisfied that Mr Fannon, particularly in an environment such as that described above, either would have or indeed did enter into any legally binding contractual commitment to the applicant whatsoever'. That view, a perfectly tenable one to be taken by a Tribunal whose composition includes two industrial members, was formed after they had heard both Mr Judge and Mr Fannon give evidence. The ultimate question is whether there is any real possibility that if Mr Mulholland had been given the opportunity to make the submissions he now seeks to make at a rehearing, the Employment Tribunal would have come to a different view. Mr Mulholland has failed to satisfy me that there is such a possibility. The Employment Tribunal's view must have been based on their impression of the evidence of Mr Judge and Mr Fannon and it is unrealistic to suppose that any submissions by counsel, however persuasive, would have been able to change it."

18. Applying that approach in the present case, first we are satisfied that there was evidence to support the majority finding at paragraph 41 of the reasons that, although not explicit, as the Claimant had said in evidence, the Claimant plainly understood, and Mr Moore intended to give, an implicit instruction that he should dismiss Rowan Ward because she was disabled. That was what the Claimant felt, as he told Ms English, a witness called by the Respondent, whose evidence the Tribunal preferred to that of Mr Moore in a material respect. It was also something which the Tribunal majority could properly infer from the whole of the evidence, particularly the three specific matters to which they refer in paragraph 41.
19. As to the question of procedural irregularity, we have no doubt that had that potential finding of fact been canvassed with counsel during closing submissions, nothing which Mr Norman might have said, even allowing for his considerable skills as an advocate, would have caused the majority to reach a different view of the case.
20. This is a case, in our view, in which the Tribunal, adopting a conscientious approach to its fact-finding duty, as appears from the notes of its deliberations, arrived at what the Employment Judge described as the truth of the matter as the majority saw it. Mr Whale is correct in submitting that the critical finding at paragraph 41 is a small departure from the Claimant's evidence put at its highest, Mr Moore's evidence being roundly rejected by the majority in a number of important respects, as Mr Norman very fairly accepts and records at paragraph 11 of his helpful skeleton argument. We need not repeat those findings.
21. Based on the finding at paragraph 41, the conclusion that the claim succeeded was plainly and unarguably correct as a matter of law. There was no procedural unfairness. Consequently, this appeal fails and is dismissed.