Smith v Association Of British Credit Unions Ltd [1992] UKEAT 273_91_0912

EAT
Smith v Association Of British Credit Unions Ltd
[1992] UKEAT 273_91_0912 · 1992-12-09

JUDGE HICKS QC :

This is an appeal by Mr Graham Donald Smith against the decision of the Industrial Tribunal rejecting his application on the grounds of unfair dismissal by his employers the Association of British Credit Unions Ltd. In view of the fact that we have unanimously decided that this matter ought to be remitted for a fresh hearing by a different tribunal I shall say as little as possible about the facts, because clearly there must be a re-hearing which deals with the facts in issue. Suffice it to say, therefore, that Mr Smith had resigned and that the case was one therefore of what is usually called constructive dismissal. It was dealt with on that basis and accordingly Mr Smith was the party who opened the proceedings before the Industrial Tribunal.The Industrial Tribunal dismissed his application without calling upon the Respondents. We do not think we need go into the disputed question of exactly what had transpired up to that point - how far Mr Smith had completed developing his case - because we think that the matter can be adequately disposed of by looking simply at the reasons given by the Tribunal and considering whether the Tribunal approached the matter along the correct lines, in other words - to put it formally - whether the Tribunal correctly directed themselves as to the law.The situation and approach when a Tribunal is asked to rule that there is no case to answer, or - which comes to the same thing when a Tribunal - considers of its own motion whether to call upon the Respondent to present its case, is, we think, sufficiently summarised for present purposes, without going back to the original authorities in Harvey on Industrial Relations Part X at paragraph, 181 and 182 in these terms:
"Whilst ordinarily a submission of no case to answer is somewhat out of place in tribunal proceedings, at any rate in all arguable cases [and an authority is referred to], it has been pointed out by Slynn J that the EAT has never said that an industrial tribunal cannot stop a hearing at the end of the case of the party whose evidence and submissions come first: Coral Squash Clubs Ltd v Matthews [1979] IRLR 390... The learned

judge continued (at 611, 612):

"It clearly is a power which must be exercised with caution, but if the tribunal is satisfied that the party upon whom the onus lies and who goes first has clearly failed either in law or in fact to establish what he set out to establish, then it seems to us that the tribunal is entitled to decide the case at that stage. It should however always bear in mind what was said by this Appeal Tribunal in Ridley v GEC Machines Ltd and in the other cases which also deal with the point."
In Ridley v GEC Machines Ltd (1978) ITR 195, EAT, Phillips J acknowledged that "there may be cases put forward which are so obviously hopeless that it would be a complete waste of time to call upon the respondents to call evidence, and thus prolong the proceedings for what may be a long time at very considerable expense. So, yes, there may be exceptional cases but, ordinarily, at all events, it is better to hear what everybody has to say". Similar expressions of view are to be found in [and other authorities are cited]."Paragraph 11 of the Tribunal's reasons reads as follows:
"Accordingly Mr Smith failed to satisfy the tribunal on the conditions necessary for establishing constructive dismissal, and the tribunal did not consider it necessary to call on the respondents to put their case."
It does seem to us clear that so far as the reasons which they gave are concerned - and they were reasons in full form - the Industrial Tribunal had not, so far as appears, borne in mind what was said by this Appeal Tribunal in Ridley v GEC Machines Ltd and the other cases, a matter which Slynn J said they should always bear in mind, and we are forced to conclude that the Tribunal did misdirect itself in law in that it did not ask itself whether this was an "exceptional case" where it "need not hear what everybody has to say". It did not ask itself whether this was "so obviously hopeless" a case that it should be stopped at that point, and for those reasons the unanimous conclusion of this Tribunal is that the Appeal should be allowed and the application remitted for a re-hearing by a different Industrial Tribunal.I should add that other grounds were advanced in Mr Smith's Notice of Appeal, but in view of the conclusion we have reached on the basis that I have expressed there is no need to consider those.