Berisha v Language Line Ltd [1998] UKEAT 747_98_0110

EAT
Berisha v Language Line Ltd
[1998] UKEAT 747_98_0110 · 1998-10-01
MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which Mr Berisha wishes to make against an Industrial Tribunal decision, which was promulgated on 5 April 1998. By their reserved decision the Tribunal unanimously dismissed Mr Berisha's complaint that he had been constructively or otherwise dismissed from his employment with Language Line Ltd, the Respondent to his application, and the Respondent to this appeal.The written decision of the Industrial Tribunal followed a two-day hearing at Stratford. The Tribunal identify the issues in the case. The background was that Mr Berisha is a native of the province of Kosovo, formerly part of Yugoslavia. He came to the United Kingdom seeking asylum and commenced working for the Respondent in June 1993 as a trainee under a Training for Work Scheme but, with effect from 1 August 1944, he became an employee working under a contract of service.In September 1996 Mr Berisha learned that his mother had become ill and there were various other circumstances of his, which do not need to be mentioned in this judgment, but which are referred to by the Industrial Tribunal which led to him resigning in terms of giving a letter of resignation, which was due to expire on 17 January 1997.It can be said at once that that resignation had nothing whatever to do with the alleged breaches of contract of the employer. But what the Applicant said in his IT1 was that he was forced to resign because the employers were taking an intransigent attitude to changing his terms and conditions of employment so as, in his opinion, to reduce the value of his remuneration package and that it was on that basis that he left.The IT1 made no express mention at all of the previous letter of resignation and of its alleged withdrawal and that was made clear to the parties as a result, either of a pre-trial review conducted by the Industrial Tribunal or by correspondence between the parties or both, so that it is clear that by the time the matter arrived at the Industrial Tribunal one of the issues of fact, which they were going to have to determine, is whether the notice of resignation which was given so as to expire on 17 January, had been withdrawn or not.The principle of law was not challenged, namely that a person who has given his notice of resignation can only withdraw it with consent. If that was the reason why he left his employment then there was, of course, no dismissal. So the question then was, "Had that notice been withdrawn by consent to the parties?" - and that depended on precisely what they found, as a fact, in relation to an alleged conversation with Lord Young, on behalf of the Respondents, on 2 January 1997.The task of the Industrial Tribunal was made much more difficult by the Respondent's failure to require Lord Young to attend to give evidence as to what took place at that time. They, therefore, had the evidence of Mr Berisha, which was apparently to the effect that some kind of agreement had been made between himself and Lord Young, whereby he was able to withdraw his notice. They, therefore, were in a position where they had one side of the story only on 2 January, but not direct evidence from the other party to that discussion. What the Tribunal said was this:
"21 We were troubled by Lord Young's absence from this hearing because it afforded us no opportunity to test his evidence against that of Mr Berisha. We remind ourselves that such onus as there is to establish that there was a dismissal lies upon the applicant and that we should consider all the evidence available to us. We attach very little weight to Lord Young's letter to the applicant because it is untested ..."
I pause there to interpolate that we understand that Lord Young's letter either disputed that he had agreed to the withdrawal of the resignation letter or indicated that he had no recollection of having made any such agreement. The Tribunal continued:
"Were that the only evidence tending to dispute Mr Berisha's account of the matter, we are likely to have concluded that the assertion as to the dismissal was made out. That, however, is not the only evidence. We were not persuaded as to the accuracy of Mr Berisha's recollection but we were persuaded by Mr Miloudi that the applicant never once mentioned to him that agreement had been reached when it was to be expected that he would do so. Mr Berisha did not put the existence of the agreement to Mr Cadbury when it was to be expected that he would do so. Save as to Mr Berisha's uncorroborated account of his conversation with Lord Young, there is nothing in the evidence which is inconsistent with his having done no more than to consider whether or not he might seek the withdrawal of his notice.
22. That finding of fact is sufficient to determine the complaint. It must follow that the termination was as a result of Mr Berisha's resignation; he having failed to secure acceptable terms upon which he would continue. It was no dismissal at all; the reason for his leaving was the expiry of the notice of resignation."The grounds of appeal are broadly stated by Mr Hastings in this way. That the Industrial Tribunal's decision was perverse; that the findings of fact in relation to that meeting were perverse; and that the Tribunal failed to take into account evidence which would have corroborated Mr Berisha's account of what took place on 2 January. He also criticised the Industrial Tribunal for weighing the evidence in a way which he maintained was not correct.We respectfully pointed out to Mr Hastings, who has acted on the Appellant's behalf, that a weighing of the evidence was for the Industrial Tribunal and there were no grounds, in law to appeal, on the basis that they had carried out that process in a way which was contrary to the way it was being suggested they should have done. However, grounds of perversity are grounds which we can look at and have given Mr Hastings an opportunity to explain to us why it was that those grounds are arguable.We have to say at the outset that we do not think that he has persuaded us that his grounds are arguable. At the end of the day, his real and only point as it seems to us, was that the absence of Lord Young meant that, as the Tribunal only had direct evidence from Mr Berisha, they were bound to conclude in the absence of Lord Young that such an agreement as they alleged, had been made. That is an error, in our view, of the true legal position. As the Industrial Tribunal have indicated themselves, but for certain other evidence coming from Mr Cadbury and Mr Miloudi, they would have found in Mr Berisha's favour.The relevance of the other evidence was that it is inconceivable that the discussions as to the new package could have taken place with Mr Cadbury, on the basis that the notice of resignation had been withdrawn. If the resignation had been withdrawn by consent, then the position was that the company were arguing about new terms and conditions in place of the original terms which were to continue unless his contract was terminated by the employer.That was not the basis on which those discussions took place according to the Industrial Tribunal. The discussions were taking place in a context which would have made it inevitable had any agreement been made of the kind suggested, that Mr Berisha would have mentioned it either to Mr Cadbury or to Mr Miloudi. It was said to us originally that the conversations referred to by the Tribunal with Mr Miloudi only took place before the alleged agreement on 2 January 1997, but on further examination it appears that there were indeed conversations with Mr Miloudi after 2 January and it was therefore open to the Industrial Tribunal to make the comment that they did in paragraph 21 of their decision.In those circumstances it seems to us unfair to say that this was a perverse decision and is not an argument which is sustainable. In relation to the complaint that the Tribunal failed to take account of corroborative evidence, as it was put to us, that argument proceeds on the fallacy that because something is not mentioned in the Industrial Tribunal decision, it was not taken into account.It seems to us that this is a carefully set out decision. The Tribunal have finely worked out for themselves how they should arrive at their decision, after some considerable deliberation, and noting the difficulties into which they were put as a result of the Respondent's failure to call Lord Young. It seems to us that they have done a conscientious job here, from the face of this written decision, and accordingly the appeal will be dismissed as it contains no arguable point of law.I would wish to add that both parties placed before the Industrial Tribunal documents containing a reference to a pre-hearing review which had been held in this case under rule 7 of the Rules of Procedure. The purpose of the scheme of the rules is to ensure that Industrial Tribunals which hear the substantive merits of a case are not made aware that there has been a pre-hearing review. A pre-hearing review takes place where the Tribunal of its own motion or in response to a request to the effect, looks at the case with a view to imposing some kind of costs penalty on the Applicant, so as to warn him off from continuing with the proceedings, or at any rate advising him that if the proceedings do go ahead and he loses, he may find himself forfeiting the deposit and having to pay costs.The rules make it plain that where such a hearing takes place, they are not to be referred to to the subsequent Tribunal. The subsequent Tribunal are not to contain Members who had sat on the pre-hearing review. Accordingly, it was entirely wrong both for the Applicant and for the Respondents (if they did) to include within their documentation references to the pre-hearing review. I want to make it plain that that is an intolerable way to behave and if it happens again I shall take steps to see that disciplinary proceedings are taken so as to ensure that people appreciate what their duties are. The Tribunal deal with this at paragraph 25 of their decision, when they say that:
"25 ... The chairman removed those documents from the notice of the members, until a decision on the merits had been reached, so as to avoid any risk that their approach to the case might be influenced by knowledge of the outcome of that review or of any order made under that rule. Because that material was made available by both parties, the chairman did not consider that justice required that he should disqualify himself from sitting as a member of the tribunal."
It was most unfortunate that the Tribunal should have been put into this very difficult position. We commend the way the learned Chairman dealt with it. It seems to us that he has behaved impeccably, as have his colleagues, in the decision which they arrived at in this case.