Greaves v First Choice Homes Oldham Ltd [2015] EWCA Civ 810

Case No A2/2014/3790[2015] EWCA Civ 810
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Venue Royal Courts of JusticeDate Wednesday, 24 June 2015
Between
GREAVESApplicant
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE AIKENS
v
Between
FIRST CHOICE HOMES OLDHAM LIMITEDRespondentDAR Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)The Applicant appeared in person for in person for The Respondent was not present and was not representedJ U D G M E N T

LORD JUSTICE AIKENS:

[1]This is a renewed application for permission to appeal by Mr Stuart Greaves, who has appeared in person. The application is made following the refusal to grant permission to appeal on the papers.[2]The case arises out of claims by the Applicant, Mr Greaves, in the Employment Tribunal for unfair dismissal and unlawful deduction of wages. Originally the Applicant had also made a claim in respect of unpaid holiday pay, but that was dismissed having been withdrawn.[3]The Applicant started work with the Respondent company, First Choice Homes Oldham Limited, in December 2002 as a repairs operative. His duties were those of a plasterer. Mr Greaves has told me this afternoon that First Choice Homes Oldham Limited are the largest employers in Oldham.[4]The contract of the Applicant included an entitlement to occupational sick pay which was of a sum that was much more generous that the statutory sick pay terms. However, in order to be able to claim the occupational sick pay he had to comply with various rules which have been set out in the judgments of the courts below.[5]On 18 August 2011 the Applicant raised various issues with the Respondent company in a letter of complaint. It is quite a long letter of complaint and in it he raised a number of points. In the last paragraph of that letter, there is a statement to the effect that he has felt that he has been harassed over a minor issue, that the situation he is in is unfair and that he is being criticised without justification. The letter then finishes off with this sentence:
"There have been other instances recently where I have felt pressured into working outside the remit of my training by being given inconsistent instructions about dealing with asbestos material, which should be dealt with by specially trained professionals."
[6]That issue about asbestos was not re-emphasised in subsequent letters, although that letter of 18 August 2011 was attached to a subsequent letter of complaint on 3 January 2013.[7]At the hearing before the Employment Tribunal the Applicant raised as one of his principal complaints the fact that the issue concerning asbestos was not dealt with by his employers. The Employment Tribunal found that this issue, raised at the end of a letter which raised a large number of other complaints, had been overlooked by the Respondent. The Employment Tribunal also concluded that this only became an issue which was referred to by the Applicant in his evidence before the Employment Tribunal when he thought it was potentially beneficial for him to do so.[8]Going back to the history of employment, the Applicant was signed off as unfit to work on 1 October 2012 after he had suffered a road traffic accident in the course of his employment. He then started to receive occupational sick pay under the terms of his contract.[9]As I have already mentioned, the Applicant sent a letter of 3 January 2013 in which he made detailed complaints which ranged from issues concerning communication at the time of the road traffic accident and shortly afterwards to issues about the HR department, whom he said had sent him hostile letters about his continuing illness and a number of other matters. The letter identified 12 individuals within the Respondent company, including members of HR and occupational health.[10]As I have said, the letter also attached to it the earlier letter of 18 August 2011. It also stated that the Respondent had failed to adhere to its own grievance procedures when dealing with his letter of August 2011.[11]There were attempts by the Respondent to arrange welfare meetings with its staff and other staff that were named in the complaint, but the Applicant did not attend those meetings.[12]There was an investigation by a HR adviser employed by the Respondent company in January 2013. That was a man called Mr Buckley. A response was sent to the Applicant on 1 February 2013. Mr Buckley concluded that the matters raised did not amount to a grievance.[13]The Applicant did not meet Mr Buckley after that, nor other members of the management. He also declined to attend the offices of the occupational health advisers to the Respondent company. There were attempts to arrange meetings between the Applicant and others in relation to his complaints and also in relation to occupational health, but they were not successful.[14]The Respondent's view was that the matters raised in the August 2011 complaint were all closed and that they could not be reopened two years down the line. The Applicant thought that that was wrong and he would not attend meetings with the Respondent or occupational health after that time. As a consequence of that, the Respondent suspended the Claimant's contractual occupational sick pay from 22 February 2013.[15]On 5 March 2013 the Applicant resubmitted his grievances that he had laid out in the letter of 3 January. He explained his current position in that letter. The Respondent company examined these complaints again and said this time that it would do so under the grievance process, although it declined to consider those matters which it had said previously that it regarded as being closed. The investigations were carried out, but the Applicant did not take part in them.[16]On 9 May 2013 a detailed 9-page letter was sent to the Applicant by the Respondent and the author of the letter was Helen Allen, assistant HR manager. The letter dealt with the grievances in a detailed fashion and it rejected all the complaints that were made and which the Respondent was prepared to deal with. The Applicant was told that he had a right of appeal and he did notify the Respondent that he wanted to take advantage of that right. However, he did not attend the subsequent hearing.[17]There was then an attempt to get the Applicant to attend. The Respondent indicated that it would be prepared to hear the Applicant's views on the question of reopening the complaint that had been made on 18 August 2011. However, by this stage the Applicant took the view that he had no trust or confidence in the Respondent or its methods and so he did not see any point in attempting to continue any further correspondence.[18]The result was that he did not attend the subsequent appeal hearing, but he sent by fax a letter of resignation to the Respondent on 12 June 2013. This was a very short letter and did not set out any reasons for resigning. However, in effect the Applicant contended that his resignation was the result of the actions by the Respondent during the whole period from January to June 2013 in the way that the Respondent had dealt with his complaints and also because it had stopped his contractual sick pay. Hence the claims for unfair dismissal and for wrongful deduction of pay.[19]The two claims were both rejected by the Employment Judge. With regard to the alleged unlawful deductions, the judge concluded that it was proper for those to be subject to terms in the contract and that those terms had not been complied with and therefore there was no unlawful deduction.[20]As for the unfair dismissal claim, the conclusion of the Employment Tribunal was that, on the facts, there had been nothing which amounted to a breach of contract, in particular of the implied term as to trust and confidence, that could give to an unfair dismissal claim.[21]I should point out at this stage, because Mr Greaves has emphasised the point in the course of his oral submissions to me this afternoon, that in the lengthy 18-page judgment of the Employment Tribunal Judge there is a specific reference to the letter of 5 March 2013 that the Applicant sent restating his wish that the complaint letter of 18 August 2011 and that of 3 January 2013 be considered again. The Employment Judge comments that this letter was considered as a further formal grievance when it was considered by the Respondent.[22]The Applicant, having lost his case before the Employment Tribunal, then applied for permission to appeal to the EAT. That was rejected on paper and the Applicant then reapplied at an oral hearing before Her Honour Judge Eady QC sitting as an Employment Appeal Judge.[23]At that hearing, the Applicant appeared and he argued most of the points himself, although he did have with him Mr T Walker, who appeared on behalf of the Applicant under the Employment Law Appeal Advice Scheme. However, Mr Greaves has told me today that it was he himself who made most of the points.[24]Judge Eady gave an oral judgment after argument which runs to some 10 pages. Her comment on the points raised by the Applicant before her were that they did not raise any point of law; that they did not engage with the findings or reasoning of the Employment Tribunal Judge and that there was no issue that was fit to go to the Employment Tribunal which as a matter of law cannot deal with issues of fact but only points of law. It seems that it was also argued by the Applicant that the conclusion of the Employment Tribunal was perverse on the facts and so therefore committed an error of law, but that point was rejected by the judge.[25]Before me today, Mr Greaves, in his forceful oral submissions, has taken me through some of the facts and in particular the sequence of events concerning the letters raising his complaints. I entirely accept that the letter of 5 March 2013 was received and was indeed acknowledged by the Respondent.[26]Mr Greaves submits that those letters were not dealt with in accordance with the grievance procedure in the way that they should have been and not in accordance with the Respondent's own rules. He attempted to make the point that the letter of 5 March was not mentioned by either the Employment Tribunal Judge or by Judge Eady. With great respect to Mr Greaves, that is wrong on both counts. I have already pointed to the paragraphs in the Employment Tribunal judgment where it is raised. It is referred to in the judgment of Judge Eady also in her recital of the facts. At paragraph 11 she says:
"Meanwhile, the Claimant resubmitted his January 2013 written grievance in early March 2013 and that was then considered by the Respondent."
[27]The fact is that all the points that Mr Greaves wishes to raise today have been considered by the Employment Tribunal and have been considered by Judge Eady on the application for permission to appeal to the EAT.[28]As has been repeatedly said now, the EAT and indeed this court can only consider points of law that arise as a result of the employment proceedings. That is not something I have any discretion over. That is what the statute says. Unless there is a point of law, there cannot be permission to appeal.[29]I have listened very carefully to all the submissions made orally by Mr Greaves this afternoon. I have studied the various documents he has produced, including the latest one which he sent to the court yesterday. In my judgment, there is no point of law that arises in this case. It all concerns the facts. Those have been decided. The decisions on the facts and the findings of facts cannot be described as perverse. Therefore, I have to reach the conclusion that, as a matter of law, there cannot be any permission to appeal in this case.[30]I am very grateful to Mr Greaves for all the submissions he has made, but that is the conclusion that I have to come to as a judge applying the law of the land.