Bridal v Invicta Community Care NHS Trust [1998] UKEAT 313_98_2207

EAT

Bridal v Invicta Community Care NHS Trust

[1998] UKEAT 313_98_2207 · 1998-07-22

MR JUSTICE KIRKWOOD : This is an appeal from a decision of an Industrial Tribunal at Ashford in Kent on 19th November 1997. Extended reasons for the decision were sent to the parties on 9th January 1998. The decision was to dismiss Mrs Bridal's complaint of unfair dismissal and to dismiss her complaint that the employer failed to provide reasons for her dismissal. Those decisions flowed directly from a finding of fact that the employee resigned and that her resignation was not in circumstances amounting to constructive dismissal.

The Industrial Tribunal made a specific finding that it preferred the evidence of the respondents' witnesses to that of the applicant.

Mrs Bridal, the employee, was employed by the Invicta Community Care NHS Trust. Her employment began on 1st October 1993 and she was employed as a psychiatric healthcare nurse.

On 26th October 1996 Mrs Bridal had an accident at work. She fractured her left scaphoid, her left wrist was in plaster. She was signed off work. She could not do her job which involved lifting patients.

Mrs Bridal remained off work. She supplied sick notes regularly and she was entitled to statutory sick pay.

On 5th March 1997, Mr Hardy, Mrs Bridal's team leader, wrote inviting her to attend an informal meeting on 12th March 1997 to discuss her current sickness.

The Industrial Tribunal made a series of findings of fact which I must recite from the extended reasons:

"9 We find as a fact that the meeting was called in a genuine attempt by the Respondent to determine the Applicant's prospects of returning to work. We are reinforced in this view because we find that the Applicant told Mr Hardy and Andrina Anderson at the meeting that she was due to see her consultant on 1 April 1997, and, accordingly, a further meeting was arranged for 2nd April 1997 to discuss the situation once the Applicant had seen her consultant. We also find that the Applicant informed the meeting that she did not wish to return to her employment because she stated that she was going to move to Hastings with her partner and that Hastings was too far for her to travel, even if she had wanted to come back to work. We do not accept the Applicant's evidence that she had never discussed the prospect of moving to Hastings at the meeting. ...

10 We find that the Applicant was warned at the meeting that she would be dismissed from her employment if at the subsequent meeting on 2 April she could give no indication as to when she might return to work following her visit to her consultant. We find that the Applicant was concerned not so much about the possibility of the termination of her contract of employment after she had been away sick for a period of six months, but because of the effect on her contractual holiday entitlement, should she be dismissed on or after 2 April 1997. ..."

The tribunal then dealt with the impact of that. If her employment continued on and after the 31st March 1997, she would lose the right to carry forward some of the leave due to her.

The tribunal continued in its findings that:

"... the Applicant did raise the question of her annual leave entitlement at the meeting on 12 March 1997, and that she was told that if she resigned before 31 March 1997 she would be entitled to payment representing her annual leave entitlement for that year.

11 We do not consider that the information provided by the Respondent at the meeting on 12 March 1997 relating to her annual leave entitlement for the year ending 31 March 1997, could amount to a breach of contract on the part of the Respondent, or amounted to pressure on the Applicant to resign before 31 March 1997.

12 Following the meeting, the Applicant discussed the position with her friend, Mr Ramsey, and told him that she was unhappy about the prospect of losing her holiday entitlement for that year because she had been away through injury. We find that the Applicant was considering resigning in order to obtain her holiday entitlement for the year, but that Mr Ramsey indicated to her that she would be ill-advised to resign.

13 The Applicant wrote a letter of resignation, which was dictated to her by Mr Ramsey, and gave it to Mr Hardy. We accept the evidence of Mr Hardy and Ms Anderson that the letter of resignation which the Applicant produced for the purpose of the hearing, was not the letter which she had in fact handed to Mr Hardy. We find the letter she handed to Mr Hardy was a much shorter letter and that it indicated among other things, that she would work for her contractual notice period of one month.

14 Mr Hardy forwarded the Applicant's letter of resignation, which he accepted, to Ms Anderson, who queried the Applicant's proposal to work her notice period, because Ms Anderson felt the Applicant's injury would prevent her form working. As a result of Ms Anderson's query, the Applicant redrafted a letter of resignation. Notwithstanding the redrafting of her letter of resignation by the Applicant, we find as a fact that the Applicant communicated her resignation by letter and in person on 13 March 1997 to Mr Hardy, the day after the meeting on 12 March 1997."

The Industrial Tribunal concluded unanimously that:

"16 ... the Applicant resigned from her employment, and that her resignation was not tendered in circumstances in which the Respondent employer was in any breach of the Applicant's contract of employment. Accordingly, it is the unanimous decision of the Tribunal that the Applicant's complaint of unfair dismissal is dismissed. In the circumstances, we do not go on to consider the Applicant's complaint that the Respondent had failed to provide her with written reasons for the dismissal."

Mrs Bridal appeals against that. She challenges the whole of the decision. She has lodged very full long arguments in support. For the greater part, those consist of challenges to findings of fact.

An appeal lies to the Employment Appeal Tribunal on a point of law only. It is not within the remit or power of the Employment Appeal Tribunal to re-assess the facts or to reconsider arguments as to which conclusion the facts should lead to. That is entirely a matter for the Industrial Tribunal, with which we cannot interfere.

A point of law only arises in relation to the facts in the event that the tribunal make a finding of fact which is wholly without foundation in the evidence or make a finding of fact on a piece of evidence which is nonetheless so outweighed by evidence the other way, that no reasonable tribunal could have reached the decision that it did. That is not this case.

The first substantial ground put forward by Mrs Bridal is that the tribunal did not consider the question of forced resignation. In the grounds of appeal and argument in support, Mrs Bridal propounds a theory of constructive dismissal which represents a misunderstanding of the law. She says that the context of construction is to act covertly, whilst giving the appearance of honouring a contract of employment. Thus, Mrs Bridal says that the Industrial Tribunal misdirected itself which the Chairman said "the Applicant's complaints cannot be justified at all unless you can establish that the Respondent in some way breached her contract of employment."

Those are the words represented in her appeal by Mrs Bridal. They do not necessarily amount to a verbatim account of what the Chairman said, but he may well have said something like that. Constructive dismissal is the phrase used for the circumstance in which the employer acts in breach of the contract in such a way as to entitle the employee to treat the contract as terminated. That is the right proposition of law and that is precisely what the Industrial Tribunal properly addressed in this case. Mrs Bridal's ground of appeal in this regard is misconceived because of a misunderstanding on her part as to what the law is.

In her second main ground, Mrs Bridal argues that the Chairman was biased and she makes a number of criticisms of the Chairman's conduct. That is to be found both in the Notice of Appeal and in the affidavits she has sworn, and her friend and supporter Mr Ramsey has sworn.

The Chairman has submitted lengthy comments upon those allegations, at the invitation of this Employment Appeal Tribunal. There are also comments from the two lay members who sat with the Chairman.

We have given careful consideration to that aspect of Mrs Bridal's intended appeal.

First of all, we are not persuaded that there is anything of substance in her complaints. But secondly and more germanely, we are quite unpersuaded that there is anything in that material that begins to demonstrate an arguable case that the Industrial Tribunal reached a conclusion wrong in law.

In her third main ground of appeal, and bringing up Mrs Bridal's points of argument together, as best we can, she complains of a large number of ways in which the tribunal reached conclusions on the facts which, she says, the tribunal should not have reached.

It is really a case of Mrs Bridal not liking the decision of the Industrial Tribunal and seeking to re-argue points across a pretty wide range. That, as we have indicated, is not an exercise that can be undertaken in the Employment Appeal Tribunal, where we look for any error of law that might invalidate the decision of the Industrial Tribunal. We do not go into re-arguing the case on the facts.

Mrs Bridal has not attended before us on this preliminary hearing. She has written a most courteous letter explaining that she has just been discharged from hospital after major surgery and she is confined, at the moment, to her bed. She says also that her elderly representative was taken ill over the last week-end. Rightly or wrongly, we have taken that to be a reference to Mr Ramsey. However that may be, she has asked us to deal with this preliminary hearing in her absence. She reminded us of the very considerable documentation there is before us, together with her arguments.

We have considered that letter with care. But the conclusion we reach is that Mrs Bridal has wholly failed to persuade us that there is an arguable point of law in this case to go forward to a full hearing of the appeal. In those circumstances, it is our obligation to dismiss the appeal at this preliminary stage.