Appeal No. UKEAT/0134/12/DM
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
20 November 2012
Before
HIS
HONOUR JUDGE BIRTLES
MRS L S TINSLEY
MR B WARMAN
MR
T PYBUS APPELLANT
GEOQUIP
LTD RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
UNFAIR DISMISSAL – Compensation
PRACTICE AND PROCEDURE – Bias, misconduct and procedural
irregularity
Appeal allowed on the ground that the Employment Tribunal did not
consider a submission of constructive dismissal at a remedies hearing or its
application to the facts of the case. Case remitted to same ET.
HIS HONOUR JUDGE BIRTLES
Introduction
1.
This is an appeal from the Judgment and reasons of an Employment
Tribunal sitting at Hull on 27 September 2011. The reserved Judgment was sent
to the parties on 22 November 2011.
2.
This morning the Appellant, Mr Pybus, is represented by Mr Siddall and
Ms Daniels of counsel and the Respondent by Mr Grundy of counsel. We are
grateful to Mr Siddall and Mr Grundy for their submissions.
History
3.
This case unfortunately has a lengthy history. The Claimant was
dismissed from the Respondent’s employment on 9 September 2008 on grounds of
gross misconduct. He had previously been the owner and I think major if not
sole shareholder in Geoquip Limited but had sold that company to the
Respondent. He was retained by them on a three-year contract at a salary of
£60,000 plus bonus. Having been dismissed on 9 September 2008 during the
course of his employment he brought a claim for unfair dismissal by an ET1
dated 6 March 2009. By an ET3 dated 6 April 2009 the Respondent admitted
dismissal but asserted the matter had been fair. The case was heard before the
Hull Employment Tribunal on 20 July to 23 July 2009.
4.
By a written Judgment sent to the parties on 25 August 2009 the
Employment Tribunal concluded the Claimant had been unfairly dismissed with remedy
to be determined. The Respondent sought a review of the Judgment of the
Employment Tribunal by a letter dated 8 September 2009 asserting erroneous
approaches to the issues of (a) section 98A(2) of the Employment Rights Act
1996 and (b) Polkey. It further appealed the decision by a
Notice of Appeal dated 1 October 2009, which appeal was dismissed at a preliminary
hearing on 6 May 2010 by Underhill J. The remedies hearing was on 19 October
2009, the judgment was again reserved and sent to the parties on 12 November
2009. That hearing was also a review hearing. The Employment Tribunal
reviewed its previous decision and concluded that a 35% Polkey
reduction was appropriate and the Claimant’s employment would not have
continued for more than another nine months from the date of his dismissal.
5.
By Notice of Appeal dated 21 December 2009 the Claimant appealed against
that judgment. That appeal was heard on 6 December 2010 by myself sitting with
lay members. A written Judgment was promulgated on 14 April 2011. The
Claimant’s appeal was successful as regards the 35% Polkey
deduction on the limitation of the period of loss. Those matters were remitted
to the same Employment Tribunal for reconsideration.
6.
The remitted hearing took place on 27 September 2011 and the reserved
decision, as I say, was promulgated on 22 November 2011.
7.
Following clarification from the EAT the Tribunal made no Polkey
reduction but they determined that the Claimant’s employment would have ceased
within nine months of the date of termination. The Claimant appealed that
Judgment by means of a Notice of Appeal dated 22 December 2011, the matter came
before HHJ Peter Clark on the sift and he put the matter through to a preliminary
hearing on the basis that it was not clear whether or not the issue of
constructive dismissal had been argued before the Employment Tribunal on the
remitted remedies hearing.
8.
The preliminary hearing was heard by Wilkie J on 31 May 2012 and he put
it through to a full hearing which is what we have heard this morning.
The grounds of appeal
9.
The Notice of Appeal contains two grounds: what Mr Siddall has called
the irrationality issue and the perversity issue. In his skeleton argument Mr
Siddall raised a third issue and he submitted to us this morning that the third
reason, the reasons issue, was covered by the first two issues but if it was not
he sought permission to amend the Notice of Appeal to argue the reasons
issues. We took the view that the reasons issues was not covered by the
original Notice of Appeal and we granted permission to amend the Notice of
Appeal to argue the reasons issue for the reasons we gave earlier this
morning. I will therefore start with the reasons issue.
10.
The authorities are well known. Meek has been cited many
times in this Tribunal and it is not necessary for us to repeat it. Perhaps
the most recent statement is that of HHJ Hand QC sitting in this Tribunal in Greenwood v NWF [2011] ICR 896 at paragraphs 62 and 63. He
said this:
“62. Meek said something about content.
There must be an outline of the story leading to the complaint, there must be a
summary of factual conclusion and reasons as to why those conclusions have been
reached on those facts. All this must be in sufficient detail to enable the
parties to know why each has won or lost and to allow the Appellate Tribunal to
see whether or not an error of law arose.
63. Since 2004 Rule 30(6) has set out what the contents of a
decision should be. In our view the continuing utility of Meek relates
to issues as to whether there has been substantial compliance of the rule. It
seems to us that is why Buxton LJ kept it in mind when considering whether
there had been substantial compliance with Rule 30(6)(c) and (e) in Balfour
Beatty. Substantial compliance with the rule can only be achieved by
sufficient detail in respect of each of its components so as to enable a party
to understand the conclusions reached and how their application has resulted in
the outcome. It seems to us that however closely Meek may resemble English
the Tribunal would be better to refer to Meek which is the Court of
Appeal decision relevant to this jurisdiction. Furthermore, without attempting
to lay down any rigid guidance and mindful that all cases are different, we
think most cases are likely to call from rather more explanation than was
envisaged by last sentence of paragraph 19 in English.”
11.
He then goes on to say this:
“If the critical issue is one of fact, it may be enough to say
that one witness was preferred to another because the one manifestly had a
clearer recollection of the material facts or the other gave answers which
demonstrated that his recollection could not be relied upon.”
12.
In this case Mr Siddall submits that the issue for the Tribunal of
whether or not Mr Pybus would have resigned and claimed constructive dismissal
was argued before the Employment Tribunal at its second remedies hearing but
not considered at all in the reasons of the Employment Tribunal. The
Respondent’s written Answer concedes that the issue of constructive dismissal
was raised and argued by both counsel appearing before the Employment
Tribunal. Mr Siddall goes on to submit that if one goes through the Employment
Tribunal reasons (and he specifically referred us to paragraphs 9, 6, 13, 15,
22, 23, 24 and 25) one finds no reference at all to the concept let alone the
test of constructive dismissal. The test for constructive dismissal is set out
in paragraphs 4-6 of his skeleton argument. Mr Grundy agrees with it, we do
not need to set it out. It is well known. So if one stands back from the reserved
Judgment and the reasons of the Employment Tribunal, one finds no mention of
the concept of constructive dismissal at all let alone the application of the principle
to the facts of the case. What the Tribunal did was to consider three
possibilities in this case, none of which was constructive dismissal.
13.
By contrast, Mr Grundy submits that if one reads the Tribunal reasons
carefully one can see that although the Tribunal does not use the term
“constructive dismissal” or indeed set out the test for constructive dismissal,
it did in fact consider it and reject it and found that the Claimant would have
resigned, a voluntary resignation, and not, as Mr Siddall argued, a
constructive dismissal.
14.
We have listened carefully to the submissions made by counsel and
compliment Mr Grundy on his manful attempts to persuade us that the Employment
Tribunal had the concept of constructive unfair dismissal in mind but we are
unable to agree with him. We have read and re-read these reasons and we simply
cannot see that the Tribunal flagged up the issue which had been argued before
it by counsel. It is simply not there. If it was a question of interpretation
of particular passages in the reasons we may have some sympathy for Mr Grundy’s
submission but there is no discussion at all of the concept of constructive
unfair dismissal and whether it applied in this case.
15.
We think the answer to this may be the fact that this was a reserved
Judgment which was not sent to the parties until some two months after the
hearing, but be that as it may we are satisfied that the reasoning of the
Tribunal does not tell Mr Pybus why the Employment Tribunal rejected the
submission of his counsel that constructive unfair dismissal operated in this
case, and on that basis that he was entitled to the full compensation up to the
period of three months after the end of his three-year contract.
16.
We can deal briefly with the other grounds of appeal. They are
irrationality and perversity. Irrationality is defined as a judgment which no
reasonable Tribunal properly directing itself on the law could have come to.
We do not think that is this case, this is not a case of irrationality, it is a
case of omission. The test of perversity is well known: see Yeboah v
Crofton [2002] IRLR 634 at paragraphs 92 to 95 per Mummery LJ. As he
pointed out the hurdle is a very high one. This is not a case of perversity,
it is a case of omission. So the appeal is allowed on the reasons issue and
dismissed on the irrationality and perversity issues.
