Appeal No. UKEATPA/0028/11/SM
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE,
LONDON, EC4Y 8JX
At the Tribunal
On 27 June & 4 August 2011
Judgment handed down on 12 January 2012
Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)
MS
C COLLINS APPELLANT
CLUB
24 LTD T/A VENTURA RESPONDENT
Transcript of Proceedings
JUDGMENT
RULE 3 (10) APPLICATION
- APPELLANT ONLY
SUMMARY
VICTIMISATION DISCRIMINATION
The Employment Tribunal did not err in
rejecting the Claimant’s PIDA claims as she did not make a relevant allegation.
She did not suffer any detriment and was not constructively dismissed. There
was no connection with her complaints about what she was required to do as part
of her contract. Complaints about her representative are properly in the hands
of the Regulator and are not for the EAT.
HIS HONOUR JUDGE McMULLEN QC
1.
This case is about unfair dismissal and there are some criticisms of the
procedure of the Employment Tribunal. I will refer to the parties as the
Claimant and the Respondent.
Introduction
2.
This is an application under rule 3(10). I gave my approach to this
sort of application in Haritaki v South East England Development Agency
[2008] IRLR 945, which should be read (paragraphs 1 to 13) with this Judgment.
Since then the Court of Appeal has approved my approach in Hooper v Sherborne School [2010] EWCA Civ 1266 and Evans v University of Oxford [2010] EWCA Civ 1240.
3.
The appeal itself is against the Judgment of an Employment Tribunal
sitting at Sheffield over four days, under the Chairmanship of
Employment Judge Trayler, sent to the parties on
13 November 2010. The Claimant was represented on the first two days
of the hearing by a consultant, on the third day of the hearing, two months,
later, by Mr J Sykes, a consultant, and the matter seems to have come
back on 25 October 2010 with further written submissions by
Mr Sykes. The Respondent was represented by Mr Smedley throughout.
4.
The Claimant made a number of complaints including unfair dismissal,
failure to make payment in respect of notice, deduction from wages and having
been subjected to detriments on the ground that she made a public interest
disclosure. The principal issue was whether there was a constructive unfair
dismissal. The Tribunal rejected all the Claimant’s complaints. She appeals.
5.
On the sift of the appeal, HHJ David Richardson formed the view
that there was no prospect of success and he said this:
“The term of the Claimant’s contract was wide - a general duty
upon employees to assist and further the interest of the company in all ways
reasonably asked of them - see paragraph 3.9 of the Tribunal’s reasons. The
Tribunal found that the instruction to canvas a donation to the RSPCA and go
through training in fundraising in order to do so was a reasonable instruction:
see paragraph 5.5. This being so, there was no foundation for the Claimant’s
claim of constructive dismissal.
The Notice of Appeal in part argues for and in part is
predicated upon a finding that as a matter of contract (either originally or by
variation) the Claimant was entitled to refuse to canvas donations. This was
plainly not the contractual position originally: see paragraph 3.9, which I
have quoted. The Tribunal found no variation. The Tribunal did find that the
Claimant was excused from taking part in fundraising for a time (see paragraph
3.15), but it does not follow that there was a variation of the contract
whereby she was for all time entitled to refuse such work. On the contrary,
the contractual background to the excusal was that the Respondent was entitled
to issue reasonable instructions at any time. The Tribunal dealt with this
point properly in its reasoning at paragraphs 5.10 to 5.13.
For these reasons I consider that the Notice of Appeal discloses
no reasonable grounds for appealing.”
6.
The Claimant expressed her satisfaction and exercised her right to a rule
3(10) hearing. She was fortunate to have the assistance of Mr Ohringer, counsel
appearing under the aegis of the ELAA Scheme. It became apparent that certain
material needed to be produced and the hearing was adjourned. Written
submissions made to the Tribunal below were produced. The Claimant sought to
revive the rule 3(10) hearing rather than proceed on the papers. She appeared
without representation on 4 August 2011, when I made orders for the
production of certain materials in the hands of her erstwhile adviser,
Mr Sykes.
7.
It was clear that the Claimant had fallen out with Mr Sykes and was
seeking to obtain material from him which she had given him, for the purposes
of the second part of the original hearing, the part when Mr Sykes joined
it. It appeared to me that if material were forthcoming, as the Claimant
alleged, the proper venue would be the Employment Tribunal and I invited her to
make such an application for a review. See my Judgment in Korashi v Abertawe Bro Morgannwg University Local Health Board UKEAT/0429/09.
8.
In due course the Claimant made, and on 22 November 2011 the
Employment Judge refused, the application. There is no separate appeal against
that. The judge refused it because it was out of time and the Claimant was represented
at the time she made the claim at the Tribunal and on appeal to the EAT. He
saw no reason to extend time. In any event, he would have refused it because
it had no prospect of success.
9.
What is telling about this refusal is it contains the nub of the
Tribunal’s reasoning as to the failure of the Claimant to succeed in her PIDA
claim. This was because neither of the Claimant’s representatives at the time
had identified a breach of legal duty or criminal act sufficient to found such
a claim under Part IVA of the Employment Rights Act 1996.
10.
Meanwhile, the Claimant has made a complaint about Mr Sykes and the
organisation under whose letterhead he appears, to the Claims Management
Regulator. I do not know the outcome.
11.
It is important to note in these proceedings that the Claimant holds
very strong beliefs and supports her argument with very substantial documentary
material.
The facts
12.
The Tribunal made the following findings introducing the parties:
“3.3 The Claimant is Miss Cathrine Collins born
12 April 1957. (“Miss Collins”). The Respondent is Club 24
Limited which trades as Ventura.
3.4 Miss Collins was employed by Ventura from
12 June 2006 until the termination of her employment by resignation
on 26 December 2009. The Claimant provided work for the Respondent
in connection with its call centre support for the RSPCA charity. Initially
the Claimant’s title was Customer Service Adviser. We find that the title of
the role had changed to Customer Experience Adviser during the course of the
Claimant’s employment.
3.6 The work provided by Ventura to the RSPCA was to service an
advertised telephone help and advice line which was also dedicated to receiving
calls in relation to animals at risk or suffering harm. There was a separate
line operated and advertised by the RSPCA by which callers could make an
inquiry as to making donations. When a caller telephoned the helpline number
there were then a number of options as is common with this type of service by
which a key can be pressed to choose the relevant line for example for an
emergency referral or alternatively another type of enquiry such as for
advice.”
13.
The Respondent has a disciplinary policy which provides for summary
dismissal as an option if there is serious insubordination and refusal to carry
out reasonable instructions. The Respondent also has a whistleblowing policy.
The Respondent agreed with its client, RSPCA, that its advisers who were called
on the phone would be asked to canvass those callers where appropriate, whether
they wished to make a donation to the work of the RSPCA. There was no
compulsory requirement. Some training was given.
14.
The Claimant did not agree with the use of the advice line for this
purpose. She had a satisfactory work and performance record and the only issue
the Respondent had with her was her refusal to canvass for donations. She
considers she was bullied into fundraising. She raised a grievance which was
rejected. On 12 November 2009 an investigation was conducted. The
Claimant was suspended with immediate effect on the grounds of gross misconduct
for failing to comply with reasonable request to attend training.
15.
The Tribunal held that the Respondent acted reasonably in seeking to ask
its employees to canvass for donations after suitable training. This was part
of the contract. The Claimant resigned, after her grievances were rejected in
retaliation for the way in which the Respondent addressed the appeal. There
was no breach of the Claimant’s contract, but the Respondent was simply
carrying out what was expressly anticipated when the contract was entered into.
A reasonable employer could address the problem of its instructions in the way
the employer did in this case. It also had a right to suspend her.
16.
The Tribunal dismissed the allegation that detriments had been imposed
on the Claimant for making a public interest disclosure, as the Tribunal held
that there was no detriment. There was no allegation of breach of legal duty
or commission of a criminal act. Whatever the Respondent did was not connected
with any public interest disclosure by the Claimant, but simply because she
refused to do what she had been properly instructed to do.
17.
An aspect of a PIDA claim is whether the Claimant acted in good faith.
There is no dispute that she did. She was opposed to raising funds for the
RSPCA via the helpline but she did not reasonably hold a belief that these
activities were illegal or in breach of any legal duty. In those circumstances
the claim must fail. Even if the Employment Tribunal were wrong, it held that
there was no connection between such conduct as the Claimant alleged and a PIDA
matter. The Tribunal held as a matter of fact that the Claimant resigned
because she was dissatisfied with the Respondent’s conduct in relation to the
RSPCA.
The law
18.
The Employment Tribunal comprehensively set out the law and there is no
dispute by the Claimant or her counsel Mr Ohringer. The law is set out in
paragraph 2.1 to 2.6 of the Judgment.
Discussion and conclusions
19.
Problems of constructive dismissal are notoriously hard. Many Tribunals
make decisions which cause difficulty for all levels within the appellate
system: see Fuller v London Borough of Brent [2011] ICR 806 in the majority Judgment of Mummery LJ.
Appellate courts must be diffident about overturning a Judgment of an
Employment Tribunal on a conduct dismissal.
20.
I can see no basis upon which it can be said the Employment Tribunal
erred in law in its conclusions. It decided the matter against the Claimant as
one of causation. The various legs on which the case had to run were all
analysed and dismissed by the Employment Tribunal. The main issue was the
proper construction of the contract. Reasonable instructions had been given to
the Claimant which she disobeyed. She did not undergo the training. She did
not suffer detriment as a result of what she said was a protected disclosure,
but in any event the disclosure did not meet the contours of Part IVA, or
s.103A, of the Act. In those circumstances I can see no error.
21.
I then turn to the procedural issues in this case. I have attempted to
have the matter of the new evidence, as it is called, determined by the
Employment Tribunal, but the Tribunal has made a decision which was open to the
judge to decide. In my view, the judge was right but that is not itself the
subject of an appeal. The material which the Claimant sought to adduce at the
EAT and then again by review to the Employment Tribunal was in existence at the
time and therefore would fail to meet the test for review in rule 35,
22.
The same is true of the test under Ladd v Marshall [1954] 1 WLR 1489 and Korashi
before the EAT. It is not for an
appellate court to become involved in matters which are properly in the hands
of the Regulator. The dispute the Claimant has with her representative Mr
Sykes does not, in my judgement, affect in any way the correctness of the
Tribunal’s Judgment. Such issues as she wishes to raise must be raised in that
channel.
23.
I am very sorry that these proceedings in the EAT have been so
protracted, but they have been caused by genuine attempts to try and deal with
the many claims the Claimant was making and to have them dealt with at the
appropriate forum. This application under rule 3(10) is dismissed, and with it
the underlying appeal.
