Korea Exchange Bank v Merkel [1992] UKEAT 436_90_0207

EAT
Korea Exchange Bank v Merkel
[1992] UKEAT 436_90_0207 · 1992-07-02

JUDGE HARGROVE QC:

The Industrial Tribunal, by its Reasons given on the 12th April 1990, held that Mr Merkel had been constructively dismissed when he tendered his resignation on the 21st November 1989.The Respondent had been employed by the Appellant since the 10th October 1978. In May 1989 a new General Manager of the Bank took up post and it was, in the view of the Industrial Tribunal that, from that individual's personality and lack of insight into a number of problems there arose the difficulties which ultimately forced the Respondent to tender his resignation.The Notice of Appeal alleges bias. In accordance with the requirements of the Practice Direction an affidavit was sworn. Mr Walker swore the affidavit and it is worthwhile to consider the exact terms which were used. He says that he was authorised to swear the affidavit on behalf of the Bank, he says in paragraph 3:"The Respondent considered that the Decision was biased and submitted a written Notice of Appeal".he then goes on to say:
"The Bank believes that the Chairwoman, Mrs S Hollis remarked to her two members `It is a clear case of unfair dismissal' before reading the Bank's submitted documents or hearing evidence."
In the light of that, he was asked why, if it had occurred, he had elected to continue before a Tribunal which was biased and his answer was that "he considered his case was so good that he had no doubt that a successful outcome would be reached." We do not accept that any such remark was made and we find the whole of the affidavit very unsatisfactory. It is not Mr Walker's fault, but it is not sufficient when bias is alleged merely for affidavits to reiterate matters of belief without indicating where that belief originates. Nor is it sufficient merely for the grounds of appeal to be set out seriatim with nothing further added to them on a factual basis. We have not seen the Notes of Evidence and in all the circumstances, there is nothing in the first point.A number of other matters are raised by the Notice of Appeal. It is accepted by Mr Walker that none of those points raises any matter of law. The Court of Appeal has indicated in a number of cases, and particularly in Woods v. W M Car Services (Peterborough) Ltd [1982] IRLR 413:
"In cases of constructive dismissal, the Employment Appeal Tribunal should only interfere with the decision of the Industrial Tribunal if it is shown that the Industrial Tribunal misdirected itself in law, or that the decision was such that no reasonable Industrial Tribunal could reach it."
In the light of admissions made by Mr Walker all other points in this case fail and accordingly the appeal is dismissed.We understand that no payment has been made to Mr Merkel and it will follow therefore that from a period 42 days after the receipt of the decision of the Industrial Tribunal, interest at the usual rate will attach to the compensatory payment.