Rosenbaum v London Borough Of Islington [1997] UKEAT 19_97_1111

EAT
Rosenbaum v London Borough Of Islington
[1997] UKEAT 19_97_1111 · 1997-11-11

JUDGE B HARGROVE QC :

This is an appeal by the employee who alleges constructive dismissal and appeals against a finding that at the end of his case the employers were held to have no case to answer.The Appellant was an unqualified social worker. and he began work with the Respondents in 1982. The work was looking after children and young persons in residential care.It seems that after initial problems his work was uneventful until 1986 when he was transferred to 11 Sheringham Road. The Appellant was not satisfied with conditions at this site. He was transferred to 26-28 Northampton Park where he was a conscientious worker and he became dissatisfied with the adequacy of management. He raised a grievance under the grievance procedure, complaining about lack of support. In 1991 the Appellant sought advice from his Union and seems to have been given advice about constructive dismissal.The Appellant was transferred to or acted at St Johns Neighbourhood office. He was worried about an adolescent in relation to his mental health and he raised that matter with the management. He was moved to Beaumont Rise, where it seems no notice was taken of his complaints.The Appellant began to look for other jobs. There was a problem with obtaining references from the Respondent. By that I mean that the Respondent appears not to have provided the references on time, not that there was any problem about the reference itself. Between 1990 and 1991, he was still employed by the Respondents but he was without work and, therefore, some of the additional payments which he would have received had he been in work, did not accrue, for example, overtime. He was disappointed that he was not appointed to a post at 80 Highbury Newpark in 1991. There are two initiatives which he started, which were not supported by the Respondents.The evidence of the Appellant was that he wanted to obtain qualifications and to seek election to the Council. He resigned in February 1994 and the circumstances are set out in the extended reasons of the Industrial Tribunal at paragraph 12 in these words:
"In 1994 the Applicant was finally told formally that he would not be getting any compensation for the lack of references being produced and the Applicant also decided that he wished to obtain formal qualifications. He applied for 'secondment' which is a scheme whereby employees can apply for further education which is paid for by the Council on the understanding that they remain in employment when they finish the courses. The Applicant informed us that he had applied to North London University to take a formal degree but his application for secondment was not successful. The Applicant was quite clear in evidence, that his main interest was the welfare of the children and young persons and he felt that the Respondents were giving inadequate care to them and therefore he decided to seek election as a Counsellor. It is quite clear and accepted that by both sides that any person seeking election as a Counsellor has to cease being an employee of the Council. The Applicant confirmed that in November [that is probably a mistake] 1994 he decided to leave his employment and seek election as a Counsellor and also seek a place at university to continue his education. In February therefore, he wrote his letter of resignation setting out in detail the reasons that he said he was leaving and in evidence stated that even though his line manager had indicated that he wished him to stay he had decided that he must leave. The Applicant therefore gave three months notice and left in April 1995. [It looks as though that, again, is an error. It should be 1994.] He was not elected as a councillor [sic] and in October he was admitted to university on a full time course."
The Tribunal continues as paragraph 16:
"The Applicant has relied on the 'last straw' argument and that the attitude of the Respondents to him at Park Place Family Centre in 1994 resulted in a repudiation of his contract of employment entitling him to leave."
17. Having considered in detail all these incidents and read the documents which were referred to us we conclude that there was no repudiatory breach of the Applicant's contract of employment entitling the Applicant to resign. The Park Place Family Centre we heard close in 1996 and this was obviously a management decision that this centre could not be supported."It is complained that the Tribunal failed to give adequate reasons. That is the first ground urged before us. There is nothing in this approach. The reasons are clear. A decision is not to be judged by its length or the insertion of detail, provided the parties know the grounds upon which they have won or lost and the issues of law are set out. The principle has been well established since Meek v City of Birmingham District Council [1987] .The next complaint is that the case should not have been stopped on the basis of no case to answer. Of course, a finding that there is no case to answer is one that ought to be made with very great caution. Lord Gladwin commented during argument that a submission of no case to answer has little place in ordinary industrial tribunal life and with that we agree but this is a case which cried out for such a decision. It was negatived on the Appellant's own evidence in that he accepted that he left in order to become a counsellor at a time when he was being pressed to remain. The Tribunal is entitled to take a common-sense approach and decide that the case had no prospects of success because it was failing on both considerations of constructive dismissal. A list of matters is put forward dating back to 1984, for example, there is an occasion very early in the Appellant's career when his employment was terminated but the employers swiftly realized that that was a mistake that had been made and the Appellant was reinstated. They recited in 1991 that he felt that he was unsupported and supervised and that grievance was investigated and the Appellant claimed he did not have a fair hearing because he did not like the person who did the investigations. Again in 1991 it is said that he did not get a job because the employers failed to provide a reference. In fact, the highest that this can be put must mean that he is claiming that he lost the chance of competing for the job and that the employers refused to pay him compensation for lack of a reference. Again, the failure to put forward the reference was in 1991.The way these events took place from time to time over the extended period are put forward as "the last straw" test, which indeed was considered by the Industrial Tribunal. Unfortunately, the very evidence which the Appellant gave indicates that, very far from being the last straw, there were a totally different agenda which was causing his resignation. We note the views expressed in Walker v Josiah Wedgwood & Sons [1978] where the submission of no case to answer is said to be somewhat out of place in the Industrial Tribunal. That is obviously correct in the vast majority of cases but where there is one salient factor which has to be proved in order to establish the case and, in chief, the Applicant not only fails to prove it but establishes the contrary, it would be unjust to allow the case to continue to the expense of the Respondent and the Applicant for the sake of form. Justice must not only be seen to be done, it must in fact be done and as expeditiously as possible. It is said the decision was perverse. We can see nothing perverse, either in the sense that there was no evidence or that the decision was plainly wrong. On the contrary, the decision was plainly right. We have, in any event, not had a chance to look at the notes of evidence of the Chairman.A number of complaints are made about so-called procedural irregularities, either free-standing or, as I understand it, as evidence of bias. We can take them in turn but we can say at the outset that the fact that these points are urged shows in many instances a remarkable degree of ignorance of simple court procedure. In short, it is said that the Chairman was biased and these irregularities are indications of that bias and unfairness. Once that issue is raised, the Court must look at the entire picture. We must consider what an independent observer, not aligned to either party, would have made of the proceedings which took place. We have had the advantage of the Appellant's affidavit, affidavits from Mr Ravenscroft and Mr Walker, Mr Ravenscroft being a reporter and Mr Walker being a solicitor. In addition we have had the benefit of an affidavit from Miss Joffe, who was Counsel for the Respondent at the original hearing. Finally, we have had statements by the Chairman, Mrs Enid Prevezer, and from the Industrial Member, Mrs Jean McIntosh. We have had a very brief note from the other Member.Perhaps the best guide in cases such as this is to look at the incidents which are said to be evidence of bias or irregularity and to test them against what one would expect of an unbiased Tribunal. Some of these complaints are strange indeed and they are strange because events are being put forward which are, indeed, everyday events in the Court. For example, it is said that the Chairman refused to give a timetable and that Appellant's Counsel was not permitted to make an opening statement and that, having had the Appellant's statement accepted in evidence, the Appellant's Counsel was not permitted to go through the statement again and put documents to the Appellant which were already before the Court. All those were matters within the discretion of the Tribunal and cannot be evidence of impropriety or bias. The Tribunal is master of its own procedure. Even when the customary warning was given to a witness in the course of giving evidence that he should not communicate with other persons during an adjournment and that he should not speak to his legal advisers during such periods, which must be given daily in a host of Courts throughout the country and yet here it is put forward as evidence of impropriety. That is as it originally appeared.As the argument developed, it appeared that there were two more matters which were being urged, in the first it was alleged that there had been a specific instruction to the Appellant that he should not instruct Counsel during the period when he was giving evidence. If that instruction was given there is nothing wrong with that and, secondly, that after he had finished giving evidence, that he was told again that he must not instruct Counsel..We trust that we are not being unduly cynical if the fact that these events appear very late give the impression to us that a certain degree of inexactitude has developed in order to bolster a case which, unfortunately, has many peculiar turns and twists. Further, it is apparent that the way in which Counsel was conducting matters put a question mark in the Chairman's mind whether Counsel was, in fact, qualified and enquiries into that situation were perfectly proper. Indeed, it was her duty, in fairness to all parties, to raise the point and she was in due course, as I understand it, assured that Counsel was qualified. In those circumstances, of course, the Court is entitled to expect certain standards which are higher than those that would be expected of a person who had not got qualifications.There is a further complaint that a witness order was denied. It appears that there was a request for a witness order concerning Mr Hill, who was an employee of the Respondents. The period of time during which he apparently could deal with matters were in 1986 and 1989. The application was made orally. It was refused. Again, there is nothing improper in that..It is said that the Chairman took over examining the issue in chief of the Appellant. The Chairman is, of course, entitled to ask questions during the course of the examination in chief. It does not constitute in any way anything improper.The first approach to this was that there had been questions put and that was an invasion of the adversarial procedure. When it was pointed out that that really was not so, Mr Morgan then urged that, in fact, the intrusions had been too many. We have the affidavit of Miss Joffe, which certainly does not bear that out. There was a bizarre moment when it seems that there was a submission that because the Chairman's sister had held some appointment at one stage in a clinical capacity, as far as we can make out, with the Respondents, then there should be a debarring of the Chairman on the basis of bias. That was perfectly properly refused by the Chairman and, again, it is urged as a matter of impropriety.When matters were coming to a close, it seems that the Chairman sought submissions from the Respondents' Counsel. When those submissions were made, the Counsel for the Appellant was asked to make his submissions. The complaint here is that there was a further impropriety because there was a refusal to grant an adjournment. In fact, Counsel had overnight to prepare his skeleton argument and his submissions. That is a perfectly proper way of conducting proceedings and it is difficult to see what is the matter of which complaint is made. It is said that the Chairman invited objections from the Respondents' Counsel. That is not borne out by Miss Joffe's affidavit and, indeed, it is not unusual for any Judge to seek from Counsel their submissions on various points. That is what is important about the exchange between the judiciary and the Bar, that matters can be discussed in that way.Then there was a gentleman who was unfortunately held in custody, was brought to Court by the prison authorities and it was proposed that he should be interposed. That was refused by the Chairman and it was perfectly proper for that view to be taken. The fact that the Chairman, at a later stage, having discovered the nature of the evidence took the view that it was irrelevant to the matters which had to be decided, cannot be criticised.There is the suggestion that the Chairman invited the Respondents' Counsel to make a no-case-to-answer submission. The evidence before us indicates from Miss Joffe that that was not the case, but even if it was, it would not have mattered. Judges, on a number of occasions, will say to the defendant or respondent's Counsel, "Well, what is the case here that you have got to answer?" That is a way in which it has been done for many years in the Courts and we can see nothing improper in it at all.The truth of the matter is that the Appellant has gone through every single possible point at which there has been any deviation from what he wished in these proceedings and put it forward as a matter which he alleges to be an irregularity, without applying to it any degree of analysis or, I regret to say, at times intelligence. The extent to which allegations go reaches a point of absurdity when one of the items of irregularity is that the Chairman gave an extemporary decision after a five-minute adjournment. How that can be an irregularity is most puzzling.The affidavit of Natasha Joffe is of assistance on another matter. The sense of paranoia which seems to have affected the situation is displayed where it appears from that affidavit that Mr Morgan accused Counsel for the Respondent that she had been to see the Chairman without him being present to arrange to make a submission of no case to answer. We need make no further comment upon that.The difficulty throughout this case is that the Appellant has not been able to understand that although he may not have had an opportunity to speak his lines in open Court, the statements and the documents have all obviously been clearly considered in detail by the Tribunal and a decision made upon them. There are no irregularity which in any way affect the outcome of this case, there is no evidence of bias which is any way credible and this appeal is dismissed.