United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JASON GALBRAITH-MARTEN (of Counsel) Instructed by: Mr J D Stanley 26 Windsor Esplanade Cardiff Bay Cardiff CF10 5BG
For the Respondent	MR THOMAS KIBLING (of Counsel) Instructed by: Messrs Capital Law LLP One Caspian Point Caspian Way Cardiff Way CF10 4DQ


 


SUMMARY

PRACTICE AND PROCEDURE: Compromise

Appeal from an Employment Judge who held that the Claimant could not pursue his claims by reason of a Compromise Agreement and that the Respondent was entitled to refuse to pay the termination payment under the Compromise Agreement because of the Claimant's fundamental breach. The Claimant sought to argue a variation of perversity based on CPR Part 52.11(3) and Assicurazioni Generali SpA v Arab Insurance Group [2003] 1WLR 577. Submission rejected. The jurisdiction of the EAT was narrower than that of the Court of Appeal . Yeboah v Crofton [2002] IRLR 634 applied.


 


HIS HONOUR JUDGE BIRTLES

Introduction

1. This is an appeal from the judgment of an Employment Tribunal Judge (Judge Owen) at Bristol Employment Tribunal on 16 January 2008. The judgment was sent to the parties on 28 January 2008. Having heard evidence and submissions the Employment Judge decided two preliminary issues as follows:

i. The Appellant was prevented from pursuing all of his claims by reason of a Compromise Agreement.

ii. The Respondent was entitled to refuse to pay the termination payment under the Compromise Agreement by reason of fundamental breaches of contract by the Appellant and by the Claimant's breach of clause 3.9 of the Compromise Agreement. All of the claims were therefore struck out.

2. Against that judgment and reasons the Appellant appeals to the Employment Appeal Tribunal. At the hearing of the appeal he was represented by Mr Jason Galbraith-Marten of Counsel. The Respondent was represented by Mr Thomas Kibling of Counsel. We are grateful to both of them for their written and oral submissions.

The Material Facts

3. The Employment Tribunal found the facts at paragraph 8 – 29 and 32 – 34 of its judgment. In summary form the background is that at the date of the hearing the Appellant was a solicitor of some nine years experience. The Tribunal found that he had specialised in employment law for some time. He had previously worked in the Employment Department of Eversheds, a major national firm of solicitors, before joining the Respondent firm of solicitors as an Associate on 21 May 2006. He continued to deal with employment and discrimination matters. On 1 April 2007 he was appointed a salaried partner. There is no dispute that he was an employee of the Respondent.
4. Gradually a conflict developed between the Appellant and his Head of Department, a Mrs Elin Pinnell. On the Appellant's suggestion Mrs Pinnell approached an in-house employment lawyer with Sainsburys Plc at the beginning of June 2007 in order to persuade him that the Respondent could carry out some of Sainsburys' legal work. The Appellant had previously acted for Sainsburys whilst employed at Eversheds. The upshot of this approach was that Mrs Pinnell was told in no uncertain terms that the Appellant was poorly regarded and he would not be acceptable to undertake any work for Sainsburys.
5. Mrs Pinnell felt put in a difficult and embarrassing situation. She then discovered that the Appellant had attempted to by-pass her by submitting a paper to the partners of the Respondent that the Appellant be trained as a mediator to resolve employment disputes. She decided to take disciplinary action against the Appellant. He responded by lodging a grievance. Following mediation and negotiations on 2 July 2007 the matter was resolved by the Appellant leaving the Respondent's employment. A Compromise Agreement was entered into on 2 July 2007: EAT bundle pages 57 – 71. Throughout this period of time the Appellant was advised by a human resources consultant, a Ms Alison Calland, and a solicitor from an independent legal firm, Morgan Cole, a Mr Ian Jones. The Tribunal found that the Appellant himself had negotiated and advised parties to such agreements in many similar cases.
6. Clause 3.5 of the Compromise Agreement read as follows:

"3.5 As at the date of this agreement, the Employee warrants and represents to the Company that there are no circumstances of which the Employee is aware or of which the Employee ought reasonably to be aware which would amount to a repudiatory breach by the Employee of any express or implied term of the Employee's contract of employment which would (or would have) entitled the Company to terminate the Employee's employment without notice or payment in lieu of notice [(if he was still employed)] and any payment to the Employee pursuant to clause 2.1 is conditional upon this being so. For the avoidance of doubt the issues raised in the letter dated 12 June 2007 will not for these purposes be regarded as a repudiatory breach."

7. It is also necessary to refer to Clause 3.9 of the Compromise Agreement which says this:

"3.9 If the Employee materially breaches any material provision of this agreement or pursues a claim against the Company arising out of his employment or its termination, notwithstanding the provisions of the agreement, he acknowledges and agrees to repay to the Company a sum equivalent to the Termination Payment (after deduction of all tax and national insurance contributions due) and that the said sum is recoverable from him by the Company as a debt and that the Company shall be released from an continuing obligations under this agreement."

8. The Appellant's express and implied obligations under his contract of employment are set out by the Employment Tribunal in paragraphs 20 - 21 of its judgment. The Tribunal said this:

"20. The Claimant's express obligations under his Contract of Employment are contained in the Salaried Partnership Agreement of 1 April 2007, a copy of which is in the Bundle between pages 72 and 84. None of these obligations are novel and they include the following:

Under clause 7.9, an obligation to show the utmost good faith to the Capital partners.

Under clause 7.10, an obligation to conduct himself in a manner becoming to a solicitor and to use his best endeavours to promote the partnership.

Clause 15.1 provided for summary dismissal in various specified circumstances, which included; committing any serious breach or repeated or continual breach of obligations; being guilt of any serious misconduct or serious neglect in the discharge of his duties; or bringing the name or reputation of Capital into serious disrepute or seriously prejudicing the interest of the partnership by his actions or omissions.

21. Insofar as implied obligations are concerned, I was assisted by the evidence of the Claimant's own solicitor, Mr Ian Jones of Morgan Cole. He is an Employment Law specialist and Senior Associate. He readily conceded that the specific obligations of a Salaried Partner or other Senior Solicitor in an Employment Department would encompass the following:

21.1 Setting a good example to other members of the team.

21.2 Providing a written record of meetings and other work undertaken for a client like Mrs Walsh, where a significant amount of time was spent on her matter.

21.3 Sending out an engagement letter at an early stage.

21.4 Creating a record about the time limits that would apply in any particular Employment Law case.

21.5 Giving a client accurate verbal advice about time limits and confirming it in correspondence.

21.6 Where a client contacted the firm about an Employment Law claim which was out of time advising that the claim be lodged immediately

and

21.7 Reporting to the firm so that insurers could be notified where a client's claim was out of time."

9. The issue of the construction of the Compromise Agreement revolves around the advice given by the Appellant to a Mrs Walsh. The Tribunal's findings of fact on that matter are set out at paragraphs 19; 22-31 of the Tribunal's judgment. The Employment Judge said this:

"19. As already noted Mr Stanley's employment came to an end on the day following the execution of the Compromise Agreement. Some two days after that, however, on 5 July last, a client of the firm, Mrs Denise Walsh, contacted an Assistant Solicitor, Mr Iestyn Morris, in the Employment Department, to register a complaint against the firm. She had dealt previously with the Claimant and, to a lesser extent, with Mr Morris in connection with her own employment dispute. That telephone call set in train a sequence of events which led the Respondent to contend that the Claimant was in breach of the provisions of clauses 3.5 and 3.9 of the Compromise Agreement. I need therefore to pause here and make findings about what express and implied obligations existed on the part of this solicitor employee and then to deal with the contention that he was in breach of those obligations in a fundamental way, so as to disentitle him to the financial benefit afforded by the Compromise Agreement.

22. There is very little dispute about the service (or lack of it) that the Claimant provided to Mrs Walsh. He conceded in his evidence that he first saw Mrs Walsh as an Employment Law client on 15 September 2006, at which stage she stated that she had been recommended to him and that she was facing disciplinary proceedings. That meeting was recorded as taking one hour and forty two minutes, although that time encompassed a telephone conversation the previous day. Mr Stanley read correspondence and documents during October 2007 and then met Mrs Walsh again on 27 October, a meeting which took one hour and eighteen minutes. By this stage, she had actually been dismissed and he agreed with her that the time limit for bringing Tribunal proceedings was three months. Unfortunately, it is abundantly clear that he did not work out the precise date, nor did Mr Stanley explain to this client that time ran from the date of dismissal and was not extended or postponed until the date when any internal appeal was concluded. It is perfectly clear that the client believed that her limitation period would only come to an end three months after the appeal was adjudicated upon.

23. It is clear from the subsequent Cardiff Employment Tribunal judgment of 23 May 2007 (in the Bundle between pages 85 and 89) that Mrs Walsh was dismissed on 25 October 2006, some two days before she met the Claimant. No doubt, at that time, she was primarily concerned to obtain advice about her internal appeal, but I find that Mr Stanley should not have left her in any doubt as to precisely when time would expire for lodging a claim (24 January 2007) and, of course, he should have confirmed that advice in writing.

24. There was also some discussion between Mr Stanley and his client about her having legal expenses insurance and taking the opportunity of instructing panel solicitors at no cost. However, the Claimant's evidence is inadequate in detailing the number of occasions when he actually saw her. He simply says: "She originally came to see me at the back end of 2006." There was a third meeting between solicitors and client on 29 November 2006. Including preparation, that meeting lasted one hour and twenty four minutes. In all, between September and November 2007, the Claimant spent over seven hours on her file.

25. Mrs Walsh was seen as a difficult client in many ways and she did not act promptly or decisively, possibly because she was apparently suffering from stress and depression. She had a number of problems, but she came to see Mr Stanley again on 12 February 2007. That meeting and its preparation took one hour and forty two minutes (see live matter enquiry record again at page 64 in the Bundle R1). It was then very obvious to Mr Stanley that his client was out of time for presenting a complaint of unfair dismissal. It is, however, perfectly clear that he did not tell her that he would immediately assist with preparing and lodging a claim in the Cardiff Employment Tribunal. Instead, on his own admission, the Claimant told his client to lodge her own claim out of time and to argue that time should be expended because she was acting in person. He felt that she would be assisted by approaching the Tribunal as an unrepresented party. Whether or not this client was given loud and clear advice about urgency, it is perfectly obvious that it was not followed, because by 6 March 2007, she was contacting Capital again seeking an urgent meeting with Mr Stanley. (He was unavailable and therefore arranged for her to see the Assistant Solicitor, Mr Morris, on the following day.)

26. I had a considerable amount of sympathy for Mr Morris, in the position in which he found himself. His evidence was clear and frank. Mr Stanley had acknowledged to his colleague that Mrs Walsh had missed the initial limitation date. He asked the Assistant Solicitor to help her finalise her own Form ET1 and to frame her argument which was, of course, that she thought that the three month limitation period only ran from the conclusion of her internal appeal. Even on that argument, 7 March 2007 was the last day for presenting a claim. Mr Morris duly saw the client during his lunch break on 7 March and assisted her in completing the application. He expressed doubts about her prospect of obtaining an extension of time and she indicated that Mr Stanley had been much more optimistic.

27. In the event, the claim brought by Mrs Walsh against her former employers, Tri-Solutions Call Centres Limited, was heard by the Chairman, Mr John Thomas, of Cardiff Employment Tribunal on 23 May 2007 and he issued a Reserved Judgment on 1 June last striking out the claim on the grounds that it was out of time and that it was inappropriate to extend it.

28. The Claimant's case about Mrs Walsh and the service that he provided is a simple one. He believed that he gave her appropriate advice and that she was not complaining about it when he saw her in February 2007.

29. The Claimant has also contended that he did write a Client Care letter to Mrs Walsh although he concedes that he wrote no other letters giving her advice as to her prospects and/or the Limitation Date. I am certainly not persuaded by his argument that a Client Care letter would have been automatically generated and therefore must have gone out. It is perfectly clear that any fee earner must (however comprehensive the model letter might be) complete specific details on it. Mr Stanley was extremely careful to record the considerable amount of time that he spent with Mrs Walsh (in all some 9 hours, plus the time of his colleague, Mr Morris). Despite this, the in-house record on page 64 does not indicate a single letter having been sent to this lady even though he charged her fees including VAT totalling £2,447.53 between September 2006 and 30 March 2007. (Unsurprisingly, Capital issued credit notes worth £595.14 in October 2007.) I find that no client care or advice letter was sent out.

30. This Claimant was guilty of a substantial number of failings in the way he dealt with Mrs Walsh. I will begin by considering his obligation in respect of a potential negligence claim and a report to insurers. Mr Stanley contends that since he had no specific complaint or allegation of negligence by spring 2007, he was under no duty to report it. That of course is emphatically not the case. Insurers require that solicitors report to them any "circumstances" which might give rise to a claim. In that context, the acts and omissions of this senior solicitor were lamentable. He must have been aware when he saw her in February 2007 that she was already out of time and that if her claim was struck out the partners of his firm would almost certainly face a complaint and the threat of negligence proceedings. The situation required a report either to his head of department or to another senior person in the Capital organization. He must have been similarly aware that he had failed to give this client clear advice on limitation dates and that there were no letters in the file which would assist Capital in defending any proceedings. I therefore entirely reject the argument that he was not under any obligation to report to insurers at this stage. If he contends that he did not know he was probably negligent and/or should report to insurers, then he ought reasonably to have known.

31. Turning to the overall quality of advice given to Mrs Walsh, the failings of this solicitor are only too obvious. It is disappointing (to say the least) to see him contending that he knew that this lady was a fee-paying client of limited means and that he should keep costs to a minimum and therefore send out as few letters as possible. That is a disgraceful argument and it does him no credit at all. This lady received appalling service for the fees that she was charged. It was totally unacceptable for him to spend 9 hours on her case and yet give her no written advice about limitation dates. It was equally unacceptable (when he did know that she had missed her time limit) for him to fail to take decisive action on or around 12 February 2007 and to ensure that a properly prepared Form ET1 was lodged at the Cardiff Employment Tribunal without any further delay. Instead of course he sent her away to fill in the form herself and thereby ensured that by her own dilatory approach her claim was not subsequently lodged until she saw Mr Morris over three weeks later."

32. The events after 5 July 2007 can be summarized briefly. Mr Morris promptly reported the client's complaints to Mrs Pinnell on 9 July 2007. Her email to Senior Partner, Mr Nott, is at Page 67 in the Bundle R1. Mr Nott subsequently discovered that Mr Stanley's file was in a mess and that it contained no adequate notes and (as already noted) a total absence of correspondence between him and his client. He was also concerned about the fact that no internal system had been utilized to record Mrs Walsh's Limitation Date in order that a warning letter could be sent to her before the three month period elapsed. In the circumstances, it is entirely understandable that Mr Nott took a highly critical view of his colleague's conduct. I accept and endorse his evidence on these matters.

"Even the best lawyer will make a mistake from time to time. I have done so myself. The appalling element of the Claimant's conduct was not that he misled the client to misunderstand what the time limit was in her case, but the manner in which he responded to learning that the time limit had been missed. What the Claimant should have done is inform the Respondent of the problem and of the potential for a claim for negligence. The Claimant received annual reminders about the need to inform the Respondent (Capital, of course) of any claims or potential claims and this was also clearly stated in the Respondent's Practice Manual."

Mr Nott went on to emphasize the need for reporting a circumstance and not just a subsequent claim."

10. As a result of the complaint by Mrs Walsh the Respondent subsequently decided to treat the Appellant's advice to Mrs Walsh as a breach of Clause 3.5 of the Compromise Agreement. On 1 August 2007 the Senior Partner, a Mr Nott said this:

"Your conduct in this instance was appalling and would have led to your summary dismissal."

The Employment Tribunal's Judgment

11. The reasons given by the Employment Tribunal for dismissing the claim are contained in the Employment Tribunal's judgment at paragraphs 30 – 31 and 35 – 40. We have already set out paragraphs 30-31. The remaining paragraphs say this:

"35. The Claimant's contention is that the Respondents are guilty of breaching the Compromise Agreement. He argues that he can accept that this is a repudiatory breach and simply pursue all employment and discriminatory options that he thinks might be open to him – hence these proceedings. He is mistaken. It is never easy to analyse an emotive situation when you are in effect your own client; the Claimant should have reflected more carefully or taken independent legal advice. The correct interpretation of what happened here is not that the Respondents breached the Agreement by withholding the money. They endorsed this Agreement by relying upon its provisions to excuse them from an obligation to pay. Have they satisfied me on the balance of probabilities that the Claimant was guilty of serious breaches of contract and/or negligence so as to justify summary dismissal? The answer to those questions is an emphatic "Yes". I have found that the Respondent was correct in its conclusion that there had been a failure to report "circumstances" on 12 February and both previously and thereafter; numerous serious negligent failures to advise and to manage the client's file correctly; a failure to record limitation dates and a wholly inadequate response to clear evidence that the claim was out of time when contacted by Mrs Walsh on 12 February 2007.

36. Turning to the Compromise Agreement, the Claimant was in fundamental breach of the warranties that he gave in Clause 3.5. There were indeed circumstances of which he was aware that would amount to a repudiatory breach. I have no doubt at all that he knew this. He was also clearly aware that he should have disclosed the situation (both concerning negligence and reporting to insurers) to his head of department or another senior member of Capital. Instead, Mr Stanley took a deep breath and hoped that either the Claimant would (against all odds) be permitted to proceed with her claim in Cardiff Employment Tribunal or that she would not pursue any claim against Capital. He was wrong and as a result he is no longer entitled to be paid the sum of £25,000 pursuant to the Compromise Agreement. He was guilty of misrepresentation in giving the warranty in question. The Respondents were entitled to rescind the Compromise Agreement but did not do so; they took an alternative option and sought damages pursuant to Section 2(2) of the Misrepresentation Act 1967. The Compromise Agreement permits withholding all the money due since none would have been paid if the employers had known of his gross misconduct.

37. I need to deal with two other matters. Clause 3.9 of the Compromise Agreement precludes both the contract claim and the Additional Claims. That is a consequence of the material breach of the material provision (Clause 3.5). However, the Claimant would also be obliged to refund the termination payment because of the other provisions of Clause 3.5. Mr Stanley also breached the Compromise Agreement by issuing proceedings not just for breach of contract (which was entirely permitted) but also for the Additional Claims. He was not permitted to do this and must accept the consequence which is that the Additional Claims would also be struck out because of Clause 3.9 if they were not in any event to be struck out because of the breach of warranty.

38. The other matter which I wish to deal with relates to Exhibit R2 which is the report sent to their insurers by Capital in July 2007. The Claimant had not thought to call for a copy of this report but it was, very properly, produced when requested during the hearing. Understandably Mr Stanley thought that it assisted him to a huge extent. I have considered its contents very carefully and have come to the following conclusion. The report to insurers is deficient in several ways. It makes no mention of the fact that a senior solicitor at Capital was aware on 12 February 2007 that this client's claim was out of time. It does not mention that Mr Stanley failed to give clear and written advice about the specific time limit applicable. It records "he is no longer employed by Capital Law". However, it does not acknowledge that the firm alleged after dismissal such serious misconduct in connection with that very matter that they withheld a termination payment that would otherwise be due to Mr Stanley. In short, it sets out the misleading and over-optimistic view of the matter taken by Mr Stanley and gives no acknowledgement at all that Capital had taken a quite different view of negligence and their prospects. Furthermore, it was incorrect for them to say that they did not think that they were at fault (Question G1) because this was all down to the client's inadequacies.

39. The Respondents have, quite correctly, criticized their former employee for his acts and omissions which clearly damaged or destroyed trust and confidence between them and him. They are, however, aware that an insurance contract is one of "utmost good faith" and that Capital have an obligation to disclose all the facts so far as their insurers are concerned. No-one knowing the sequence of events in this case could believe that Exhibit R2 was a fair, complete and accurate assessment of Capital's position vis-à-vis this client. It was surely inappropriate for Capital to reject all the arguments offered by Mr Stanley in Summer 2007 and yet to repeat them (in substantially the same words) when reporting to their insurers. I am sure that the Respondent will deal with this if they have not.

40. Despite the above, I have come to the conclusion that the Respondents must succeed with their defence to these proceedings. They have not given false evidence to the Tribunal. I have accepted their case and they have more than discharged their burden of proof. Their failure, as already noted, lies in the way in which they have omitted to acknowledge the negligence of their former employee. That needs to be rectified, but it does not permit the Claimant to succeed in these proceedings."

The Notice of Appeal

12. Before turning to the Notice of Appeal we think it is appropriate in this particular appeal to make some observations about permissible grounds of appeal to the Employment Appeal Tribunal.
13. First, it is settled law that there is limited scope for challenging a determination by a Tribunal of fact on the nature and extent of repudiatory conduct. In Lewis v Motor World Garages Ltd [1986] ICR 157 at G-H Glidewell LJ said this:

"An appellate court, whether the Employment Appeal Tribunal or the Court of Appeal may only overrule that decision if the Industrial Tribunal have misdirected themselves as to the relevant law or have made a finding of fact for which there is no supporting evidence or which no reasonable Tribunal could make."

14. In the amended grounds of appeal there is a freestanding ground of appeal of perversity. It is only if there is a "overwhelming" case that no reasonable Employment Tribunal could have reached this decision can it be characterised as perverse or amounting to an error of law. This is irrespective of whether another Tribunal of fact might have found otherwise: Yeboah v Crofton [2002] IRLR 634 at paragraphs 93-95 per Mummery LJ.
15. The further ground of appeal in this case is that the judgment is not Meek compliant. As that case makes clear an Employment Tribunal's judgment is not required to be an elaborate formalistic product of refined legal draftsmanship, but an outline of the story which has given rise to the complaint and a summary of the Employment Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusions which they do on those basic facts. The parties are entitled to be told why they have won or lost. So far as findings of fact are concerned it is helpful to the parties for some of the explanation of them to be given but it is not obligatory. As Philips J in Fourgere v Phoenix Motor Company [1976] IRLR 259 recognised an Employment Tribunal has to work in practical conditions and is bound of necessity to operate in a somewhat rough and ready way to paint the picture with a broad brush.
16. With those general observations in mind we note the following specific factors about this case:

(i) Only two witness statements have been included in the Employment Appeal Tribunal bundle. They are those of two witnesses for the Respondent i.e. Mr Chris Nott: EAT bundle pages 91-98 and Mr Iestyn Morris: EAT bundle pages 99-104:

(ii) No attempt has been made by the Appellant to activate the Employment Appeal Tribunal Practice Direction by either agreeing the notes of evidence and in default applying to the Employment Appeal Tribunal for an order that the Employment Judge's notes of evidence be produced. This is often critical in a perversity appeal;

(iii) Many if not most of the Appellant's alleged "undisputed facts" contained in the Appellant's Amended Notice of Appeal are challenged by the Respondent as accurate: see paragraph 7.1(a) of the Amended Notice of Appeal: EAT bundle pages 13-16 and the Respondent's skeleton argument paragraph 18 page 8;

(iv) We reiterate that the Employment Appeal Tribunal is not a fact finding body. We do not hear evidence in the course of an appeal except in the most unusual circumstances.

(v) It follows that in the absence of (a) agreed notes of evidence and/or (b) the Employment Judge's notes of evidence we accept the facts as found by the Employment Judge. We have no alternative.

The Amended Grounds of Appeal

17. The amended grounds of appeal appear at EAT bundle pages 12-23. Before turning to each ground in turn we note that Mr Galbraith-Marten made two broad opening submissions to us before turning to his specific grounds of appeal. His first general submission was that this was not a perversity appeal but an appeal which raised a point of law which is about the extent of duty of care owed by an employment solicitor to a client. He referred us to Midland Bank Trust v Hett, Stubbs & Kemp [1979] Ch 384 and to the judgment of Oliver J at 402 B - E. Mr Galbraith-Marten reminded us that first there had been no expert evidence called before the Employment Judge to the extent of that duty and, second, that the extent of the legal duty is a matter for the Court.
18. Mr Galbraith-Marten's second submission is that the Employment Judge had to ascertain the extent of the duty of care and, having done so, it was his function to evaluate the facts as found. He submitted that there was no proper evaluation here. In support of this proposition he referred us to Assicurazioni Generali SpA v Arab Insurance Group [2003] 1WLR 577 at paragraphs 14; 16-17 per Clarke LJ and Datec Electronics Holdings Ltd & Others v United Parcels Services Ltd [2007] 1WLR 1325 at paragraph 46 per Lord Mance. Mr Galbraith-Marten submitted that the Employment Appeal Tribunal was in the same position as the Court of Appeal in hearing an appeal and that these authorities applied to the Employment Appeal Tribunal in exercising its statutory appellate jurisdiction.
19. By contrast Mr Kibling submitted that the Employment Appeal Tribunal was in a different position from the Court of Appeal when the Court of Appeal heard cases under CPR Rule 52.11. The Assicurazioni case is a Practice Note for the guidance of the Court of Appeal in conducting a "review" of a decision below pursuant to CPR Rule 52.1 (1). The Practice Note makes that clear. The Employment Appeal Tribunal has a more limited jurisdiction under statute. Section 21 of the Employment Tribunals Act 1996 provides:

"(1) An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings before, an Employment Tribunal under or by virtue of …"

The statutes are then prescribed. Mr Kibling also referred us to British Telecommunications Plc v Sheridan [1990] IRLR 27, CA. Mr Kibling further submitted that ground 1 of the Notice of Appeal is a perversity challenge. It is not about professional negligence. He therefore referred us to the perversity cases I have referred to earlier in this judgment.

20. We reject Mr Galbraith-Marten's submissions about the general approach we should adopt. We agree with Mr Kibling that the jurisdiction of the Employment Appeal Tribunal by s21(1) of the Employment Tribunals Act 1996 is a more limited jurisdiction than that given to the Court of Appeal by CPR Rule 52.11(3), which provides as follows:

"(3) The appeal court will allow an appeal where the decision of the lower court was

(a) wrong; or (b) unjust, because of a serious procedural or other irregularity in the proceedings in the lower court."

We therefore approach this appeal on the basis of the conventional approach to the powers of appeal of the Employment Appeal Tribunal.

21. Furthermore, as Mr Kibling has pointed out the Employment Judge is by definition a specialist in employment law. In addition there is no dispute in this case that the Compromise Agreement was a lawful one: judgment paragraph 14: EAT bundle page 4.

Ground 1

22. Mr Galbraith-Marten submits that the Employment Judge erred in law by applying too high a standard or requiring too much in respect of the Appellant's conduct towards Mrs Walsh in the particular circumstances of this case. He relies specifically on the following matters:

(a) The Appellant was not instructed to act in respect of an unfair dismissal claim;

(b) Nonetheless he had discussed the time limit for presentation of an unfair dismissal claim with Mrs Walsh who was aware that it was three months: judgment paragraph 22; EAT bundle page 6;

(c) At the meeting in November 2006 Mrs Walsh notified the Appellant that she had insurance that would cover the cost of legal proceedings and that she would thereafter be using a panel firm of solicitors: judgment paragraph 24; EAT bundle page 6. In fact what is recorded in paragraph 24 does not accord with Mr Galbraith-Marten's factual submission. Mr Galbraith-Marten criticizes the Employment Judge for failing to take account of central facts with the result that the Employment Judge did not deal with either the question of the scope of the retainer or the date or dates when the Respondent ceased to act for Mrs Walsh. He made detailed submissions on dates.

23. As we have made clear the Respondent takes issue with the facts relied on by the Appellant himself in his own amended Notice of Appeal: see Mr Kibling's skeleton argument pages 8-13.
24. The Appellant's primary case under the first ground of appeal is that he was not specifically instructed to act for Mrs Walsh in respect of her unfair dismissal claim. The main issue is the Appellant's conduct on 12 February 2007 when Mrs Walsh returned to see him. This is contradicted by the evidence: see Time Ledger Listing for 12 February 2007: EAT bundle page 78 and judgment paragraphs 22-25: EAT bundle pages 6-7.
25. Furthermore, the matters which amounted to a repudiatory breach of contract are identified in the judgment at paragraphs 22; 24; 28 - 31 and 35. At paragraph 39 the Employment Judge says this:

"The Respondents have, quite correctly, criticised their former employee for his actioned omissions which clearly damaged or destroyed trust and confidence between them and him."

26. Given the structure of this judgment we conclude that the Employment Tribunal did not apply too high a duty of care to the Appellant. The Employment Judge was as an expert judge well placed to deal with this issue. No expert evidence was put before him and no reference was made to any of the authorities cited to us. What the Employment Judge did have was the Appellant's express obligations under his contract of employment which he set out in paragraph 20 of his judgment: EAT bundle page 5, as well as evidence of the Appellant's implied obligation which came from the Appellant's own solicitor, Mr Ian Jones of Morgan Cole, who was an employment law specialist himself: judgment paragraph 21; EAT bundle pages 5-6. There was amply material upon which the Employment Judge could reach the conclusions that he did.

Ground 2

27. Mr Galbraith-Marten submits that findings made by the Employment Judge about the Appellant are career threatening and based upon allegations made by Mrs Walsh that have never been tested. There has been no claim for negligence by her against either the Appellant or the Respondent. Mr Galbraith-Marten complains about the fact that during the hearing the Respondent produced a solicitor's PI Plus Notification Form which they had completed and sent to their insurers about this matter: EAT bundle pages 51-54. The copy in the EAT bundle is unsigned but there is no doubt that it was sent to the Respondent's insurers: judgment paragraph 38; EAT bundle page 10. Mr Galbraith-Marten criticises the Employment Judge because that document denies any wrongdoing by the Appellant and asserts that Mrs Walsh was at fault in missing the relevant time limit. As we understand Mr Galbraith--Martin's submission, it is that the Employment Judge should have taken a different view of the Respondent's evidence because of this document.
28. The Employment Judge deals with this at paragraphs 38-40 of his judgment, which we have set out above. It was a matter for the Employment Judge to assess the evidence having heard witnesses for both sides. He rightly criticises the Respondent for the form of this notification to their insurance company but that does not require him automatically to reject the rest of their evidence about the Appellant's actions and their view of them. He was entitled to accept their evidence and find against the Appellant. That was his function.

Ground 3

29. This ground of appeal relates to Clause 3.9 of the Compromise Agreement. It was a reason relied upon by the Employment Judge for finding against the Appellant: judgment paragraph 37; EAT bundle page 10. Both Counsel are agreed that the Employment Judge was wrong in relying upon Clause 3.9 in reaching his decision. However, both Counsel are also agreed that it does not affect the result in this case if we are against the Appellant on grounds 1 and 2. We agree. Clause 3.9 has no bearing on the facts of this case and it was an error for the Employment Judge to refer to it in reaching his decision. However, it does not affect the result of this appeal.

Conclusion

30. For these reasons the appeal is dismissed.