MacMullen v ASDA Stores Ltd [1993] UKEAT 921_92_0110

EAT
MacMullen v ASDA Stores Ltd
[1993] UKEAT 921_92_0110 · 1993-10-01

JUDGE J HULL QC:

In this case Mr MacMullen appeals to this Tribunal against the decision of the Southampton Industrial Tribunal promulgated on the 4th November 1992.He complained to the Industrial Tribunal that he had been unfairly dismissed. Putting it shortly, he had been very unwell, he had been away from work for long periods by reason of illness, and that, said the employers, is why we dismissed him.Before we go into the grounds of appeal we will start by referring to the decision of the Industrial Tribunal. An appeal to this Appeal Tribunal necessarily involves saying that the Industrial Tribunal either made an error of law in their decision or else dealt with the matter in a way which was so unsatisfactory that there was some unfairness amounting to an error of law; and so the place to start is with the Tribunal's decision. They heard a good deal of evidence and of course they heard Mr MacMullen, who was not represented. The employers were represented. It was therefore the particular duty, as Mr MacMullen himself says, of the Tribunal to safeguard the interests of the Applicant, Mr MacMullen, and to make sure that he was properly heard. Mr MacMullen complains that quite apart from the ordinary handicaps of a litigant in person, who does not know the law and is confronted by lawyers, he also had a disability which was due to nervousness, matters tended to leave his mind, he suffered memory loss when he tried to deal with matters which were distressing to him. Industrial Tribunal Chairmen and Members are very used to applicants who are "in person", dealing with matters which may be unfamiliar to them; that is the everyday experience of the Tribunals. It is wrong to think that the Chairman alone is responsible for those matters; he is assisted and guided by his Industrial Members who are equal members with him of the Tribunal and they are all determined - and this is really the principal task of such Tribunals -to give a fair hearing to people who may not be at all clear about the law and who may be very distressed by what has passed. As Mr MacMullen says, he was helped by the Tribunal, he was questioned by the Chairman, and he himself found difficulty in putting his case.Mr MacMullen had worked at the Supermarket, where he was employed by the Respondents, since 1988 and there was a take-over in October 1989 by the Respondents. The Tribunal in their decision, which appears to us a very careful one, went through the facts. They say:(e) The applicant's actual period of working with the respondent was, in relation to his total length of employment, comparatively small, as will appear hereafter. (f) From 20 March 1989 to 9 July 1989, the applicant had unpaid leave in order to resolve a domestic problem. The Store Manager, Mr Miller, agreed to this. We have seen the correspondence . . ."- indeed they saw a large number of documents, they had 132 pages of documents apparently in front of them - then they say:(g) The applicant only returned for a matter of some 16 weeks before he was away again. This time he was away with a painful arm, the cause of which was never properly diagnosed. That absence ran from 30 October 1989 to 23 April 1990. (h) In less than 3 months, the applicant was away again. That absence commenced on 9 July 1990 and, in fact, he never resumed."He was not dismissed until the following year; on the 30th November 1991, eighteen months later.So the Tribunal went into all the facts, they heard all the evidence and of course they had to reach their findings of fact on that. They referred to the medical report on Mr MacMullen dated 14th May. They say:(o) That report confirms that the applicant has been suffering from stress symptoms, which `seem to have been brought on' by some disagreements at work. The doctor continues, `Therefore, until his presumed dispute with the company is sorted out, I don't see his stress symptoms abating, and therefore I don't see him returning to work. As and when he does return to work, with the dispute settled, there should be no disability anticipated. In the future he should be able to render regular and efficient service, but I cannot say when this will be'."Then the Tribunal goes on to consider how this matter was dealt with by the employers. It is not enough for the employers to show what the reason for the dismissal is (and here the Tribunal were satisfied that it was due to the ill-health of Mr MacMullen); they also have to behave fairly and justly in treating that reason as a reason for dismissal. So the Industrial Tribunal had to enquire into that and they made some important findings. They were dealing with the situation in 1991:
"(p) It is right to say that, at the meeting on 4 April [1991], Miss Griffiths had attempted to discover what the problem was that the applicant saw. The applicant was unable to give any clear particulars. (q) A further interview took place on 17 July, when, of course, the doctor's letter was available. The applicant [Mr MacMullen] refused to talk about the problem any further. There was discussion of him moving to a different location, but the applicant did not want to discuss that either. One thing that was clear from that interview was that there was no prospect of anything like an immediate return to work. (r) Miss Griffiths offered to see the applicant at home, if it made matters any easier, but the applicant said that that would not help. (s) The applicant was given another appointment for 30 August. He did not attend. He was therefore given a further date of 19 September. The notes of that meeting appear at 110/111. In brief, there was no prospect of a return to work, and the applicant made it clear that he was unable to discuss the problems, as it made his stress worse, as did the meetings. . . (t) On 2 October, the applicant was invited to a further meeting on 11 October. The applicant failed to arrive, but, three-quarters of an hour before the due time, telephoned to say that he was refusing to attend this and any further meetings."
Then he was dismissed, as I say, something like eighteen months into this absence. He appealed:-(x) The appeal was heard by Mr Lucas. The applicant was accompanied by the Shop Steward and also the full-time officer of his Trade Union. At the outset, the applicant handed to Mr Lucas 4 closely typed pages, setting out the problem that he said he had."they refer to those pages which they have looked at too.(y) The meeting resumed. The applicant was asked about his return [to work]. He indicated that he could not return either to the store, or, as he put it, anywhere. He referred to wanting the `issue to be put right'. . ."7. We have lengthy written submissions by the applicant and we have read carefully the 4 page document that he submitted to Mr Lucas. He says that he handed that to his full-time officer in July 1990, when he first became ill, and that the advice given to him was that there was nothing more the Union could do; that he could either resign, or the matter would run its course and he would be dismissed. All we can say is that that advice seems to have been sound, for, if his complaint was as serious as the applicant maintained, and he resigned, then obviously there was a potential claim for a constructive dismissal, but if he did not do that, then, as the officer pointed out, the matter would run its course and the applicant would be dismissed. The applicant's argument is, shorn of its detail, that management had harassed him over a period, culminating in the events in July 1990. This had caused his stress and the matter had never been resolved, and, as a result of that, he was dismissed for long-term sickness.8. The respondent's argument [that is the employers'] is simply that here was an employee who was away from work, allegedly with stress, though the medical document only referred to stress symptoms; that the respondent, despite numerous attempts, was unable to obtain any coherent explanation from the applicant, who either was unable, or was refusing, to discuss the situation; that he was warned what that would entail. He did not respond and, accordingly, he was dismissed."Then the Industrial Tribunal referred to the allegation or the suggestion that had never been apparently explained by Mr MacMullen that there was:
". . . some sort of campaign against him, ranging from the Store Manager to the part-time assistant who worked with him. It is not for us to say whether there was a campaign or whether there was not, for that has never been the reason why the respondent said that it dismissed the applicant."
That passage in the Industrial Tribunal's decision is complained of in his grounds of appeal. They go on:
"10. It is an unusual feature of this case that the illness is said to have been caused by the respondent, and the applicant was dismissed because of his inability to work due to the illness. All we can say is that if the applicant is ill and unable to work, the employer is expected to take certain steps before deciding whether to dismiss or not. No doubt one of the factors to be taken into account may very well be whether, indeed, the illness has been caused by the respondent itself. Here, however, despite the most valiant efforts by Miss Griffiths, the applicant flatly refused to discuss the matter, alleging that that made the position worse. To make matters even more difficult for the respondent, no clear allegations could be extracted from what the applicant said, except that he had been harassed by various people, but in respect of which no complaint had ever been raised until he became ill with stress, even though, according to him, it had been going on for some considerable time. We have to say we are deeply suspicious about that, bearing in mind the appalling attendance records that the applicant had. To suggest that there had been harassment for a lengthy period of time cannot be so, when he was actually at work a comparatively short period of his total employment."
Then they go on to consider what a reasonable employer could do in the circumstances. They found that the employer had acted reasonably and that it was within the range of reasonable responses for the employer to decide to dismiss.Of course it is for the employer, not for the Industrial Tribunal, to say what they are going to do, provided they act reasonably in the circumstances.Now Mr MacMullen appeals. This case is set down under our Practice Direction for us to discover if we can, with Mr MacMullen's assistance, whether there is any point of law in the case. We cannot deal with any case which does not rest on a point of law and he has put in grounds which have plainly been drafted by lawyers. They suggest that:

"the Tribunal attached too great a weight to earlier absences from employment"

They go on to complain of one passage in which it was said that the Tribunal took the view:
"it was not for the Tribunal to say whether there had or had not been a campaign of harassment against the appellant when the existence of such harassment was, as the Tribunal found in paragraph 7 . . . the basis of the appellant's case."
It seems to us that this Tribunal most carefully addressed itself to that very question despite what they said in the passage complained of. They heard witnesses. They were anxious to consider whether they could accept the evidence of the employers and they did accept that in spite of numerous interviews it was not possible for the employers to find out what the complaints were and they pointed to the fact that if there was indeed some campaign against Mr MacMullen it certainly could not have been waged during the long periods whilst he was away from work. In our view they considered that matter very fully. If they had thought that the Store Manager or any responsible person had been a party to any conspiracy to oust Mr MacMullen; to make him ill; or to persecute him, they would have undoubtedly have said so and it is quite clear to us that they had that matter in mind when they were attending, as they had to, to the employers' evidence. Then the solicitors grounds, drafted by them, go on:
"(c) Whether the Tribunal erred in failing to take into account the detailed evidence of the appellant as to physical harassment appearing on page 18 of the bundle of documents. (d) Whether the Tribunal having made the holding referred to [they refer back to the complaint which we have mentioned] further erred in failing to investigate the full details of the appeal hearings and in particular to attach sufficient weight to the statement of Mrs Crompton at page 132 of the bundle and the evidence of the appellant that his representations and statements at the internal meetings were not properly recorded and that he had invited the employer to take evidence from his doctor and his managers. (e) Whether the Tribunal erred in law by failing to consider the effect of the employers conduct taken as a whole on the relationship of trust and confidence which should prevail between an employer and employee and whether such conduct contributed to the appellant's illness and consequent dismissal thereby constituting constructive dismissal."
It does appear to us that those grounds, however well they sound simply as grounds, are simply contradicted when one reads the decision of this Tribunal. They did enquire into all these matters in a thoroughly impartial and careful way and in accordance with their legal duty and it does seem to us that those grounds, as we say, are not supportable as points of law. They are (to cite something which has often been said in this Tribunal) attempts to dress up points of fact as points of law and in effect to say that the Tribunal should have reached a different conclusion on the evidence which it heard. It was for the Tribunal to reach its findings of fact here. This Tribunal read this large bundle of documents, considered a great deal of evidence and in particular had the advantage of hearing Mr MacMullen and those he alleged were persecuting him.Mr MacMullen has appeared today and told us shortly and clearly about other matters. He tells us he cannot afford a solicitor. He tells us that he put his trust in the Chairman of the Tribunal and feels he was let down. I have already explained that he was entitled to expect and, in our view, got, a careful enquiry not merely by the Chairman but the other members of this Tribunal who would most certainly have said if they disagreed with the way the Chairman was conducting the hearing. He says then that his employers did not tell the truth, but nonetheless the Industrial Tribunal accepted their evidence. That is not a point of law. Of course it is a misfortune if Mr MacMullen feels that untruthful evidence was accepted but it was for the Tribunal and not for us to say what evidence they accepted and what they rejected. Then he complains that the Chairman said that he fully understood Mr MacMullen's case and that he was not allowed, he said, to read it out aloud; but if the Chairman and the Members all read the four page document which had been laid before Mr Lucas on the appeal, they were not obliged to hear it read aloud. That cannot found a complaint. Mr MacMullen assures us that he has always told the truth and that the other side withheld information. That again was a matter for the Tribunal to judge. He tells us, and one sympathises with him, that he wishes he could have had a solicitor to represent him here, and indeed before the Tribunal, and he says the doctor gave clear evidence. Of course, the Tribunal accepted the evidence of the doctor and gave full weight to it. He says:- "the opposition could run rings around me and they all lied on oath." The question of what evidence to accept and what to reject was for the Tribunal, but in saying that the "opposition", who were represented, were in a position to run rings around him Mr MacMullen goes too far. The Tribunal would not have allowed Mr MacMullen to be overborne and to have rings run around him, as he puts it, and there is no indication whatever that bad behaviour by the employers was allowed at the hearing. It appears to us from reading the decision of the Tribunal that they patiently considered this matter, correctly addressed their minds to the points which they were required to address and considered the evidence. They reached a decision which, of course, was wholly unfavourable to Mr MacMullen's case. It is not for us to say whether we would have reached the same decision, it is for us to say whether there is any point of law here which could fairly be argued. Having, all three of us, considered the papers as carefully as we can we cannot discover any such point of law.In those circumstances, because that means that we have no jurisdiction in the matter, we have to say that this appeal must proceed no further and it is dismissed.