United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Claimant	MISS R WEDDERSPOON (of Counsel) Instructed by: Messrs Pinsent Mason Solicitors 3 Hardman Street Manchester M3 3AU
For the Respondent	MR S YOUNG (of Counsel) Instructed by: Messrs EAD Solicitors LLP Prospect House Columbus Quay Liverpool L3 4DB


 


SUMMARY

PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke

The Employment Tribunal set out the arguments and evidence advanced on behalf of the Claimant but failed to set out the arguments and material evidence advanced on behalf of the Respondent. The Tribunal did not set out a proper evidential basis for the conclusions reached. The judgment was not Meek compliant.

Appeal allowed. Claim remitted to a differently constituted Employment Tribunal for rehearing.


 


THE HONOURABLE MRS JUSTICE SLADE DBE

1. This is an appeal by the University of Manchester from two judgments of an Employment Tribunal. The first judgment was entered in the register on 27 November 2009 ('the liability judgment'). After a hearing lasting six days with one day pre-reading time, the Employment Tribunal ('ET') held that Dr Faulkner had been unfairly dismissed. They also upheld his claim that he had suffered a detriment within the meaning of section 47B of the Employment Rights Act 1996 ('ERA') by reason of making a protected disclosure.
2. By the second judgment entered in the register on 2 March 2010 on remedy ('the remedy judgment') the ET ordered the Respondent to pay the Claimant compensation for unfair dismissal in the sum of £42,521.77 and compensation for injury to feelings in respect of the protected disclosure of £10,000.
3. We will refer to the parties by their titles before the ET as the Claimant and Respondent.
4. The appeals came before Underhill P for a preliminary hearing on 6 May 2010. The Notice of Appeal before Underhill P raised a number of points on the liability judgment and there was also, as we know, an appeal against the remedy judgment.
5. The grounds of appeal in relation to the liability judgment included allegations of perversity. The President ordered a transcript of his judgment on the preliminary hearing. He presciently held, at paragraph 2:

"As regards liability, this is essentially a perversity appeal though incorporating 'no evidence' submissions on some particular points. The Notice of Appeal does not explicitly invoke Meek or rule 30 but on analysis, as is generally the case, the particular points made may shade into an alternative allegation of inadequate reasons: in other words, the Appellant can be taken to be saying 'even if this is not an impossible finding on the evidence it is sufficiently surprising in the light of the evidence as a whole and/or our submissions to require much more explanation than was given.' We are prepared to read the Notice of Appeal as incorporating an argument along those lines. Perversity/Meek appeals of this kind always face an uphill struggle, but there are sufficient points in the Reasons, particularly when read with the contemporary documents which we have seen, where we have found the Tribunal's findings surprising and/or rather under-explained for us to conclude that the appeal does deserve a full hearing. We also see force in the criticism that it is not always clear from what the Tribunal says either what the Respondent's case on a particular point was, or what the relevant evidence was. Indeed, we note that the Tribunal does not in fact identify what witnesses it heard from or what they said on the key points."

6. We invited Miss Wedderspoon, who appears for the Respondent, to address us first on the Meek point. Before inviting her to deal with the perversity ground of appeal and the appeal from the judgment on remedy, we asked for observations from Mr Young on behalf of the Claimant. After an adjournment, during which both parties were able to take instructions, Mr Young addressed us on the Meek point.

Outline Facts

7. The Claimant was employed by the Respondent from 1 October 2004. He was appointed to work for the Square Kilometre Array project (the SKA project). The SKA project is an international venture to establish a world-leading astronomy facility in either Australia or South Africa. It is an extremely significant project which will comprise a radio astronomy telescope with a million square metres of collecting area. This will be the world's largest astronomical instrument and will increase the scientific potential of astronomy research.
8. There are a number of partner institutions across the UK and Europe working on the SKA project. The UK institutions involved are: the Respondent, the University of Oxford; and the University of Cambridge. The project is funded by independent grants from the European Union and the Science and Technology Facilities Council.
9. Professor Wilkinson of the Respondent, was the principal investigator for the UK aspect of the SKA project and chairman of the SKA board. Professor Wilkinson was responsible to the funding of the organisations and for the scientific delivery and financial management of the SKA project.
10. Other individuals named as co-investigators on the grant for the SKA project were as follows: for the Respondent, Professor Mohammed Missous and Professor Tony Brown; for the University of Oxford, Professor Steve Rawlings and Professor Mike Jones; and for the University of Cambridge, Dr Paul Alexander. A further individual involved with the project was Professor Philip Diamond who is employed by the Respondent as Director of the Jodrell Bank Centre for Astrophysics. We take these facts from the Respondent's skeleton argument with which the Claimant does not take issue.
11. The relationship between the Claimant and Professor Wilkinson, the principal investigator, became difficult. The Claimant dealt with other members of the SKA project from other universities, in particular Oxford and Cambridge. There came a time when Professor Wilkinson considered that the Claimant was not communicating with his Manchester team as he should. From that point on there appear to have been difficulties between them. We say no more because, as will be apparent as a result of our conclusions, it is likely that there will have to be further fact finding on this claim.
12. The Claimant resigned. His effective date of termination was 31 August 2008 and on 1 September 2008 he joined the University of Cambridge.

The Contentions of the Parties

13. Miss Wedderspoon contended that the judgment of the ET failed: first, to set out the issues between the parties and the areas of dispute; second, to set out the relevant evidence; third, to give any or any adequate consideration to the Respondent's case. It merely set out the Claimant's case.
14. In respect of the matters upon which the ET relied to conclude that there had been fundamental breaches of contract by the Respondent entitling the Claimant to resign and claim constructive dismissal, Miss Wedderspoon contended and has shown us that documentary evidence was before the Tribunal and which was relied upon by the Respondent to put the particular events in context. Those documents were nowhere referred to in the ET judgment, nor are the contentions of the Respondent in that regard set out. The examples are too numerous to itemise in this judgment. Bearing in mind that this part of the appeal hearing is not concerned with the perversity challenge, it is not necessary for us at this stage to outline that evidence. Suffice it to say that the ET did not refer to evidence before the Tribunal that the Respondent contended was central to the arguments it was advancing.
15. We have been taken to examples of material evidence not referred to in the judgment. We merely mention a couple of them. The first is the context of the meeting on 4 December 2007 at which the ET considered that the behaviour of professors at that meeting in itself would have warranted a finding that there had been a fundamental breach of contract by the Respondent.
16. In respect of that meeting there is no reference in the ET's judgment to evidence that was before them that before an important meeting with other university members of the SKA group on 20 November 2007, there was evidence before the ET that the Claimant had communicated with the Oxbridge teams but had not communicated with Professor Wilkinson with the result that the Manchester team felt disadvantaged in their handling of the meeting of 20 November 2007.
17. So far as a letter of 9 January 2008 is concerned, which the ET rely on in their paragraph 14.3, as:

"Another attempt by Professor Wilkinson to undermine the Claimant, to put him in his place, to show him who was boss."

The ET do not make reference to the fact that in that letter, Professor Wilkinson outlines his principal concerns about the behaviour of the Claimant. Nor is there reference in the ET's judgment to the fact that when the Claimant raised a grievance which was to be heard by a particular professor, he had sent a draft of his grievance to that professor for comment and improvement.

18. There are other matters to which Miss Wedderspoon on behalf of the Respondent has drawn our attention but upon which we do not think it is appropriate at this stage to make further observations. It may well be necessary for another Tribunal to make appropriate findings of fact in relation to relevant evidence.
19. Miss Wedderspoon contends that the judgment of the ET is totally flawed. She asks that it be set aside and the case remitted for rehearing to a differently constituted Employment Tribunal. Mr Young, for the Claimant, could not but acknowledge that there was little he could usefully say in connection with the ET's reasons. He could not say what evidence was in their minds or what conflicts of evidence they considered and resolved in reaching their judgment. If the ET does not adequately set out material issues, quite properly said that he could not justify the judgment on an hypothetical basis.
20. Mr Young pointed out that the ET heard evidence over six days. There is very little explicit or implicit reference to that evidence. However, he did not go so far as to concede that the appeal on the Meek grounds is well made out. If the Appellant were to succeed on the Meek ground, Mr Young contends that the case should be remitted to the same ET because it heard evidence over six days, and it would remember the context of that evidence. It would save time and expense for his client if the case were remitted to the same ET.

Discussion and Conclusion

21. As is well known, since the case of Meek v The City of Birmingham District Council [1987] IRLR 251, a party must be told why they have won or lost a claim. The court delivering the judgment in Meek was an extremely distinguished court, including the late Lord Bingham, then Bingham LJ. The Court of Appeal criticised the judgment of the Industrial Tribunal for giving no detailed account of relevant matters. Various criticisms had been made of the Respondent in that case without any statement of the basic underlying facts. The Court of Appeal set aside the Decision and remitted it for rehearing to a different Industrial Tribunal.
22. In this case, at a very basic level, the ET did not set out which witnesses gave evidence. Whilst they said that they had a reading day, they did not state which documents they had read apart from skeleton arguments. There were, apparently, at least 500 pages of documents before the ET.
23. The ET set out the Claimant's submissions in extenso in paragraph 3 of the judgment. So far as the Respondent's contentions are concerned, all that they said at paragraph 4 was:

"Counsel for the Respondent made a number of detailed written submissions as set out in the skeleton argument and as presented on the final day of the Hearing. We have considered those submissions with care but do not rehearse them here."

24. We have been shown sufficient documentary evidence which had been produced to the ET to be satisfied that the Respondent adduced material evidence which, at the very least, should have been referred to in the judgment of the ET, and if properly considered may well have been of significance for the issues which the Tribunal should have decided. There was no reference at all to those documents.
25. There was no reference to a meeting with the Claimant on 11 December 2007 which the Respondent relied upon as material to their case. There was no reference to the substance of the Respondent's arguments.
26. An examination of the conclusions of the ET at paragraph 14 in large part does not refer back to properly reasoned parts of the judgment, nor does it refer back to a proper evidential basis for the conclusions reached. The ET has not set out the Respondent's case as it did the Claimant's case on the various issues, why it rejected the Respondent's case and what evidence it took into account in dealing with the various issues.
27. It is with regret that we consider that this judgment, after a hearing lasting six days at which about 500 pages of documents were produced, fails to set out the case of both parties. There is no proper reference to the Respondent's case. The judgment fails to set out the material facts or make reference to material documents. The judgment fails to meet Meek standards by quite a margin.
28. On this ground alone, the appeal against the liability judgment is allowed.
29. Bearing in mind the way in which this ET dealt with the case in its judgment, we remit the case for rehearing to a differently constituted Employment Tribunal. We have in mind Sinclair, Roche and Temperley v Heard (No. 1) [2004] IRLR 763 and (No. 2) UKEAT/0168/05/TM, and the overriding objective of the Employment Appeal Tribunal.
30. We are confident that competently handled, before the remitted hearing takes place, there can be a large measure of agreement between the parties as to the relevant documents and the relevant issues. Although it is a matter for them, the parties may consider it appropriate to include notes of the evidence given at the previous hearing in the course of the remitted hearing. We are confident that this case will be heard in less than seven days.
31. In the circumstances, we also set aside the remedy judgment. On application of Respondent's counsel we give leave to withdraw the perversity appeal.