Peacock v Braintree Further Education Corporation [1999] UKEAT 1363_98_1703

EAT
Peacock v Braintree Further Education Corporation
[1999] UKEAT 1363_98_1703 · 1999-03-17
MR JUSTICE HOLLAND : From 1 September 1982 to 3 March 1996 Mr Eric Peacock was employed by the Respondents as a full-time college lecturer. By way of a subsequent IT1 he made complaints to an Industrial Tribunal. Those complaints initially were several in number, but an early interlocutory hearing reduced the complaints, for the purposes of the Tribunal, to effectively two. One such was a claim for unfair dismissal and the other such was a claim for money due to him pursuant to his contract.The matter came before an Employment Tribunal sitting at Stratford on 3 September 1998. In the upshot the unanimous decision was that his claim for unfair dismissal failed and was dismissed. The breach of contract claim was settled on terms that were annexed to the Extended Reasons. He now appeals against so much of the decision of the Employment Tribunal that dismissed his unfair dismissal complaint and, as we explained to him this morning, our task at this preliminary hearing is as follows.First and foremost, we are concerned to discern whether a point of law arises out of the decision of the Employment Tribunal. That is crucial because the Employment Appeal Tribunal is only able to adjudicate on points of law. If we can discern a point of law, then the order of this particular Tribunal will be that the matter should go forward for a further hearing at which the Respondents are represented, so that a final decision can be made with the benefit of arguments from both sides. If, on the other hand, we cannot discern a point of law then it is our duty to say so today and that inevitably means a dismissal of the appeal.Mr Peacock is rightly concerned that he personally does not have legal training and that he is representing himself here today. As I hope he now appreciates, one of the concerns of this Tribunal is to make its own examination of the papers and he may rest assured that, if this Tribunal discerns a point of law that had not occurred to him, we shall readily say so.It is necessary with that introduction to look at the way in which the matter proceeded before the Employment Tribunal. In the course of the interlocutory proceedings the case for Mr Peacock had been set out by way of further and better particulars. By such, he made it quite clear that he was alleging constructive dismissal. Paragraph 5 of those further and better particulars reads as follows:
"5. The applicant claims that he was obliged to permanently leave the above employment, and FE teaching generally, because of the conduct of the respondents, and the consequences thereof.

Particulars of Respondents' conduct and the consequences

a After 1992 the respondent's style of management changed, in line with recommendations of the employers association, as a result of which the level of stress experienced by staff increased unreasonably, and unnecessarily;b Between 1992 and 1996 the applicant suffered from directed victimisation and bullying, at the hands of his line-manager (the respondents agent and servant), to which the respondent's attention was drawn and which they chose to ignore;c Between June 1992 and 1995 the applicant was obliged to spend much of his time at work, in an atmosphere which was tainted by industrial fumes, to a degree which caused him and others ill-health, and which was promptly brought to the attention of the respondents, and which was largely ignored by them.d Upon his absence from work, between March 1995 and March 1996, the respondents attempted to mislead the applicant regarding his contractual entitlement to be paid during periods of absence from work due to sickness, and have still failed to pay the applicant his full contractual entitlement."We interpose: the last allegation, as we understand it, underpinned his successful complaint for monies due pursuant to contact.Turn back then to the way in which the Employment Tribunal dealt with the matter. They recite in their Extended Reasons, a summary of that which we have just set out, namely the relevant content of the further and better particulars. They then note the Respondents denial of these allegations and then come to the way in which the matters proceeded before them. They note that Mr Peacock was represented by Mr Nicholson, who we are told is a person with some legal training but who certainly is not in practice either as a solicitor or a barrister. Mr Nicholson apparently caused Mr Peacock to read a statement to the Tribunal as his evidence in chief. The reading took no less than one hour. By the time that that task had been completed and some questioning had taken place, it was time for the luncheon adjournment.The Tribunal record that over that adjournment they had chance to reflect upon which they had heard and to take into account that which had emerged, namely that the ultimate retirement had been on an ill-health basis. That ultimate retirement, they found, had been initiated by a letter of 29 August 1995, in which Mr Peacock had written to his employers in the following terms:
"Dear Mr Sewell,
With regret I am afraid I have to apply for ill-health retirement.I understand that the necessary application forms are obtainable from my employer.Trusting that to be the case I look forward to receiving same at your convenience."The Tribunal then note that the forms were sent to him; that they were processed; that there was some independent investigation of his health, with the ultimate result that through the offices of the Teachers Pension Agency medical retirement was granted as from 3 March 1996. They further noted that there was a history that led up to that, so that there had been an earlier application for early retirement in 1994, which had not been granted, and they note that the application for the ill-health retirement had taken place some five months after he had started sick leave absence.In all those circumstances the first conclusion of the Tribunal was that, even taking at face value that which was being put before them that could not found a case for constructive dismissal. They dealt with the point in these terms:
"13. The Tribunal considered the evidence of the Applicant and found that it was unable to determine that there was any final act of which complaint was made or any particular stage at which the Applicant had felt that the employer's breach of the implied term of trust and confidence was so great that he was entitled to leave and claim constructive dismissal. Rather, the Applicant described a series of acts which continued. At one stage in 1994 he had applied to take early retirement, but that had not been granted and he continued in employment. Some five months after he started his sick leave absence the Applicant applied for ill-health retirement. It is not suggested that the Respondent invited him to do so or that the Respondent put any pressure on him to do so. Mr Nicholson, for the Applicant, said at one stage that this was a case of duress where there was no alternative. However, the Tribunal has not heard any evidence from the Applicant which could possibly form the foundation of such a submission. Rather, the Applicant, we are led to understand, was entitled to sick pay for something in the region of 12 months and could have waited until near the end of that period (or later) so far as the Respondent was concerned. There was no suggestion that sick pay would not be available to him. We find no indication anywhere, before the first Originating Application was lodged, that the Applicant was purporting to accept the employer's breach of contract. We find no indication anywhere that he was resigning or leaving the employment in consequence of the employer's breach. Rather, there is instead a clear insistence by the Applicant on the performance of all the terms of the contract. Thus through summer and autumn 1995 on into December he and eventually his trade union were pursuing his rights to full sick pay. There is no criticism of the Applicant here. He was entitled to claim his contractual sick pay. The point which the Tribunal makes is that the insistence on full performance of the contract is the exact opposite of a repudiation of the contract. In addition the Applicant at no stage indicated that he was asking to leave on the basis of any conduct by the Respondent."
There then is the first stage in the Tribunal's deliberation and our concern is as to whether it, or the process leading to it, discloses any error of law. As to that, we have indicated the factual basis upon which they proceeded and it is further to be noted that in paragraphs 9 - 12 inclusive of the Extended Reasons, they direct themselves as to law and do so in terms which have not been criticised by Mr Peacock and, given the greater acquaintance that this Tribunal has with the law, we would add there is nothing that we can see that he might reasonably have advanced had he been legally trained.The Tribunal, in our judgment, thus far correctly directed itself as to fact, and as to law, and thus far, there is no basis at all upon which we can allow the matter to go forward. It does not end there because the Tribunal note that, belatedly, the representative of Mr Peacock then sought to raise a different case. They deal with this situation in these words:
"14. In his submissions to us Mr Nicholson argued that it was the Applicant's case that the Applicant developed stress as work related illness in consequence of the Respondent's breach of contract, ie their conduct in breach of the implied term of trust and confidence. He asserted that during the Applicant's sick leave the Applicant was not mentally in a position to come to a rational decision and that he had mentally decided to resign on health grounds, not because he wanted to resign but because he had come to the conclusion that he did not really have any choice.
15. The problem with this submission is that it presented a brand new case which was not pleaded in any of the four documents now before the Tribunal from the Applicant and which had not been asserted by the Applicant in evidence. The Tribunal made clear to the Applicant's representative that he could not be allowed to proceed on these grounds. None of the evidence which would have been required was before the Tribunal or available to it. We refer in particular to the necessary medical evidence. All we have in that respect (and we have not yet received it in evidence) is a couple of short letters written this year by a general practitioner and a physiotherapy group leader. The Tribunal is clear that the way the Applicant has always put his case is as set out in our first paragraphs above. We are also clear that it cannot succeed on that basis."Thus it was that confronted with this belated acknowledgement by the representative that the full case had not so far been presented, the Tribunal made the procedural ruling that it was not prepared to consider it, having regard to the time at which it was raised and having regard to the prior history.There then is another decision by the Tribunal. Does it disclose any error of law? As to this, it is plain beyond doubt that this Tribunal can only consider exercises of judgment of that kind, that is, judgment relating to procedural issues, if it can be argued that no reasonable Tribunal could have reached their decision, that is, that the decision was perverse. We have anxiously considered the decision. We are quite unable to say that it was perverse. On the face of it, it was indeed absolutely the right decision. The only possible alternative decision would have been to invite Mr Nicholson, the representative of Mr Peacock, to apply for an adjournment and to allow such, so as to enable Mr Peacock to put his case in proper order and to direct a further hearing.We are quite satisfied that that was not a realistic option in the particular circumstances of this case. Certain it is, it would have been an option if it had been apparent that there was awaiting proper presentation, a case that was demonstrably arguable. It would have been an option if the Tribunal had felt that Mr Peacock was being deprived of justice by the inadequacy of his representative.True it is that the representative appears to have behaved in an unusual and arguably negligent fashion in presenting Mr Peacock's case, but all our examination of the papers reveals that, in truth, there really was never an alternative case of sufficient weight that could be advanced along the lines latterly raised by Mr Nicholson. In order to advance such a case one would have to go through all the medical history of Mr Peacock and see what part, if any, played therein by his employers. One would have further to look into the full circumstances in which the ill-health retirement was granted and how it came about that such was supported by the independent doctors. One would have to look further at the advantages to Mr Peacock of that retirement, a retirement that he had earlier sought unsuccessfully, and to weigh all those matters up before adjudicating upon the essential case, namely that there was a constructive dismissal.One has only to spell out the reality of the matter to appreciate, in fairness to Mr Nicholson, that this was an almost impossible case to present, as of 3 September 1998, and thus it is that the notion of an adjournment is not a realistic one and certainly not one that we think that the Employment Tribunal should have contemplated. Thus it is, that we find ourselves quite unable to discern a point of law that merits a hearing at which the Respondents are represented.We would like to think that the care with which we have considered this is apparent to Mr Peacock, because none of us are happy about the way in which his case was put before the Tribunal below, but the real problem is that we cannot discern a case that could have been advanced successfully had he had the benefit of better advocacy. For all those reasons this appeal must be dismissed.