Scott v W F Refrigeration Ltd [1996] UKEAT 65_95_2005

EAT
Scott v W F Refrigeration Ltd
[1996] UKEAT 65_95_2005 · 1996-05-20

JUDGE PETER CLARK:

Mr Scott appeals against a decision of the London (North) Industrial Tribunal (Chairman: Mr G. Flint) dismissing his complaint of unfair dismissal against his former employers, W.F. Refrigeration Ltd, following a hearing held on 3 November 1994. Extended reasons for that decision are dated 5 December 1994.The issue before the Industrial Tribunal was whether or not the Appellant had been constructively dismissed.He commenced employment with the Respondent on 1 January 1978 and at the time of leaving in November 1993 he held the position of Executive Director and Systems Manager.He represented himself before the Industrial Tribunal and his evidence-in-chief consisted mainly of a 24 page typed statement which is before us together with the Chairman's Notes of Evidence.On 28 October 1993 he tendered his resignation to the Managing Director, Mr Wright, who promptly accepted it. The events leading up to his resignation are set out in detail in his statement, and he summarised his case in this way:
" Conclusions .
I believe that there were special circumstances which should have led the Respondents to doubt whether the resignation was intended in that :-1. I was under extreme pressure and had been for many months. The Respondents were well aware of this.2. The telephone call on 29th October, was a desperate plea for help when I was in a poor mental state. The Respondents knew that I was ill and had been receiving medical treatment for some time.I had no alternative but to resign and was therefore constructively dismissed. This resignation was forced by the behaviour of the Respondents in that they breached the duty of trust and confidence implied into my contract of employment by :-1. failing to respond to and adequately investigate my requests for help.2. failing to keep me informed at all as to whether there was any prospect of help in the future.3. failing to provide temporary support when members of an already inadequate staff were away through sickness.4. failing in general to treat me with the consideration I deserved in view of my consistent hard work in establishing the Bow Office and my deteriorating health."The history set out by the Appellant included complaints that following an office move from Balham to Bow in East London he was placed under increasing work pressure leading to his taking medical advice from both his General Practitioner, Dr Mohamed, and a Professor Seymour at St George's hospital. He says that in December 1992 he was advised by Dr Mohamed to take a month off work because he was suffering from stress, and that he made this known to Mr Wright, who told him that he would have 10 days off over the Christmas shutdown.He complained that he did not receive necessary staff support with the result that he was working long hours, 10 hours or more a day, and finally reached the end of his tether, culminating in his handing in his notice on 28 October 1993. He subsequently attempted to withdraw that notice some two weeks late, but was not permitted to do so by the Respondent.The Industrial Tribunal took a robust line. They heard from the Appellant and a number of witnesses called by him. Then, having heard from Mr Wright, they terminated the proceedings without hearing more evidence. They explain their reasons for so doing at paragraph 4 of their reasons in this way:
"4. It was at this point that we stopped the case as we were satisfied that the Applicant had not established to us that there had been a fundamental breach of contract either of any particular term which there might have been in his contract of employment or in relation to the implied term of mutual trust and confidence which is to be found implicit in every contract of employment. It was for this reason that we decided that there was no necessity for us to hear evidence from Mr Peabody as we were satisfied from the evidence given by Mr Wright that the Applicant did not establish a case. We were not satisfied at the end of the evidence called on behalf of the Applicant that a fundamental breach of contract could be established but we decided that we ought to hear some evidence on behalf of the Respondents in case there might be something in the Respondent's evidence which would cause us to alter the view to which we had provisionally come. We were however completely satisfied after hearing the evidence of Mr Wright that there was nothing in the conduct of the Respondents which could possibly be criticised let alone be conduct amounting to a fundamental breach of the contract which would entitle the Applicant to resign and claim that he had been dismissed. For this reasons therefore the Applicant's claim is not made out and is dismissed."
Before us Mr Reed, who appears for the Appellant, divides his submissions into substantive and procedural matters. We propose to deal first with three procedural matters.

Chairman asleep

In accordance with the practice of this Appeal Tribunal the Appellant filed affidavit evidence in support of his contention that during the hearing the Chairman fell asleep or appeared to be asleep. The relevant extracts from the evidence filed are as follows:In the Appellant's affidavit, sworn on 7 December 1995, at paragraph 10 he says:
"10. The Chairman gave the impression during the morning session of not following the proceedings very closely. In the afternoon, I believe that he fell asleep on two or three occasions. He appeared to me to keep nodding off. His head was resting on his left hand. I could tell that he was drowsy or asleep because whenever I looked up his head was either bowed down or his head was resting on his left hand. The other two members of the panel appeared to be alert and were following the proceedings. I do not believe that the Chairman was simply concentrating with his eyes closed because occasionally someone would say something more loudly or in his direction and he would appear to be startled and his head jolted up. On the rare occasions that I looked up to see the Chairman paying some attention, he appeared to be impatient or struggling to follow the thread of what was being said; he appeared to be having difficulty staying awake."
Mr Stuart Hinton, an observer at the Industrial Tribunal, said this at paragraph 6 of his affidavit, also sworn on 7 December 1995:
"6. When we returned in the afternoon it seemed to me that the Chairman was very drowsy and often had his eyes closed with his head bowed. A lot of the time he would rest on his arm and look in the opposite direction to the witness and on a number of occasions he checked his watch as though he was becoming impatient. I recall on one occasion looking at the Chairman and watching him resting on his arm. At that exact moment somebody said something to the Chairman. At this moment his glasses had been pushed up his face by the way in which he was leaning on his arm and he looked up, startled, put his glasses back in place, looked down at the document and used his finger to try and find out what was being referred to."
Mrs Gillian Hinton, the Appellant's partner, in an affidavit similarly sworn on 7 December 1995 said at paragraph 9:
"9. During the afternoon session it seemed to me that the Chairman became very drowsy and may have fallen asleep for a couple of minutes on a number of occasions. The panel had to look to their right to look at the witness' face when the witness was giving evidence. However, I often noticed throughout the afternoon that the Chairman was sat with his eyes closed, looking down or leaning on his hand and looking away from the witness. At other times he persistently checked his watch."
The Respondents filed an affidavit sworn on 9 January 1996 from Mr John Roe, a former Director of the Respondent who gave evidence before the Tribunal. He said this:
"7. ... At paragraph 10 Mr Scott gives further opinion evidence as to an impression obtained from the actions of the Chairman. Presumably the Chairman can testify as to whether or not he was asleep at the time during the Hearing. If the Chairman had fallen asleep, it would have been very apparent to all present, in particular his two adjacent colleagues, and to all present. I cannot agree with Mr Scott's claim that the Chairman had fallen asleep. I have considered paragraphs 11, 12 and 13 of Mr Scott's Affidavit which appear to repeat the claim made in paragraph 10, for which there is no foundation. ...
11. ... It is my opinion that the Chairman did not fall asleep."In response, the Chairman caused a letter dated 8 February 1996 to be written to the Registrar of the Employment Appeal Tribunal, containing this comment:
"The Chairman was not asleep. He was involved in taking notes as it is his duty to do and the extent of his involvement can be seen from the notes herewith."

Calling witnesses

The Appellant makes two complaints. The first is that he was not permitted to call Mrs Hinton to give evidence. He admits that he forgot to call her as part of his case, and did not apply to call her until after the Tribunal had retired following evidence and speeches. We do not regard this to be a point of substance. The decision not to allow the Appellant to re-open his case at that stage fell within the proper exercise of the Tribunal's discretion.The second complaint is a different matter. Prior to the hearing the Appellant wrote to Mr Peabody, an employee of the Respondent, indicating that he wished to call him to give evidence before the Tribunal. Mr Peabody replied, stating that he would be attending the hearing since the Respondent wished to call him.The Appellant gives this account of what happened so far as that potential witness was concerned at paragraph 14 of his affidavit:
"14. I had asked the Chairman during the morning session if I could call Mr Peabody as my first witness. The Chairman however informed me that Mr Peabody was to be called by the Respondent but that I would be able to cross-examine him when he was called. I replied that so long as that was the case I did not mind not being able to call him immediately. During the afternoon, Mr Armitage [the Respondent's representative] called Mr Wright as his first witness. At one point Mr Armitage referred to the possibility of some evidence being held over until the next day. At this the Chairman became very agitated and said that there was no possibility of the hearing being carried over to the following day. He also tapped his watch in an attempt to hurry the proceedings along. After I finished my cross-examination of Mr Wright we took a five-minute afternoon recess. When we returned from the recess the Chairman spoke directly to Mr Armitage and stated that Mr Peabody would not be required to give evidence because he felt that Mr Peabody's evidence would not be helpful to either side. I was flabbergasted. Mr Peabody was my key witness and I had made this clear in so many words to the Chairman at the outset. The Chairman then asked both parties to sum up their case. Again, this order came out of the blue. I did my best to collect my thoughts and to precis my case. Mr Armitage had already prepared a summing-up statement and he read from this. The Chairman said that the Tribunal would then retire and consider its decision."
That account is not disputed in the Chairman's letter of 8 February 1996.

Tribunal Reasons

Mr Reed points to the terse reasoning of the Tribunal, covering one page, contained in their Extended Reasons. He contends that no attempt is made to analyse the relevant terms of the contract of employment or the factual issues between the parties. No or no sufficient findings of fact are made. The parties do not know from the reasons why they have won or lost. Meek v City of Birmingham District Council [1987] IRLR 250 .

Conclusions

In our judgment this appeal must be allowed and the matter be remitted to a fresh Industrial Tribunal for rehearing. Our reasons for so deciding are as follows:-(1) Both sides wished to call Mr Peabody. It follows that each considered his evidence to be relevant. The Appellant clearly understood from the Chairman that Mr Peabody would be called by the Respondent and that he would be able to cross-examine him. No submission of "no case to answer" was made on behalf of the Respondent at the close of the Appellant's evidence. Mr Croxford, who appeared on behalf of the Respondent before us, conceded that the Appellant's case, if accepted in full at that stage, could amount to a fundamental breach of the contract of employment. The Tribunal wished to hear from Mr Wright. Having done so, it then decided to dismiss the complaint without hearing from Mr Peabody. That strikes us as fundamentally unjust to the Appellant. He refrained from calling that witness on the Chairman's indication that Mr Peabody would be called by the Respondent. The Respondent had every intention of doing so. There were no proper grounds for stopping the case before he had given evidence. That procedural defect, in our judgment, of itself vitiates this Industrial Tribunal's decision.(2) Prolix reasons are neither necessary nor desirable in Industrial Tribunal proceedings. However, the Extended Reasons in this case go too far the other way. The losing party, in this case the Appellant, is entitled to know from the reasons on what factual issues he has failed to satisfy the Tribunal and why; which contractual terms were considered by the Tribunal, and why it held that no breach had been made out. It is not sufficient in our view, to deal with these matters in the broad brush way in which this Tribunal did. On this further ground we would allow the appeal.(3) Both Counsel addressed us on the effect of the EAT decision in Red Bank Manufacturing Co Ltd v Meadows [1992] ICR 204 , a case involving an allegation that a lay member of an Industrial Tribunal had appeared to fall asleep during the proceedings. The thrust of any such complaint is the sense of grievance on the part of the losing party that he has not had a proper hearing. Since the remedy for such grievance is a rehearing, and that we order on the basis of other grounds of appeal, it is unnecessary for us to decide the issue here raised. We simply make the trite observation that under no circumstances should parties ever leave a Tribunal hearing with the impression that any member of the panel is giving less than his or her full attention to their case.In these circumstances we do not propose to deal with the substantive points raised byMr Reed in this appeal. These are matters which properly fall to be ventilated before the next Industrial Tribunal which rehears this case.There will be legal aid taxation of the Appellant's costs in the appeal.