DAVID SMITH T/A WIMBOURNE PET CENTRE v MR J TYLER [1999] UKEAT 714_98_0106

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 714_98_0106Case No Appeal No. EAT/714/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DAVID SMITH T/A WIMBOURNE PET CENTREAPPELLANTMR J TYLERRESPONDENT
Before
Mr Justice Charles Mr L D Cowan Mr D A C LambertDate 1 June 1999
[1]APPEARANCES For the Appellants MR M WEST (Representative) Peninsula Business Services Ltd Stamford House 361-365 Chapel Street Salford Manchester M3 5JY For the Respondent IN PERSON MR JUSTICE CHARLES : This is an appeal by a Mr D Smith who trades as the Wimbourne Pet Centre. The other party to the proceedings is a Mr Tyler who was an employee of the Wimbourne Pet Centre. The matter was heard by the Southampton Employment Tribunal on 6 November 1997 and came before this Tribunal on a preliminary hearing on 8 October 1998. At that hearing H.H. Judge Peter Clark gave a judgment of this Tribunal which helpfully summarises the background facts and, by that judgment, decided that the Appellant was not to be allowed to pursue all the grounds of appeal set out in his Notice of Appeal, but that this appeal would be confined to grounds 3 to 5.[2]The first two grounds of appeal had been:
"(i) the Tribunal erred in concluding in the circumstances that the effect of the trial period and the consequent conduct amounted to a fundamental breach of contract (ii) in the alternative that the reasons are inadequate."
[3]The upshot of that, as explained by H.H. Judge Peter Clark, is that the finding that Mr Tyler was constructively dismissed stands and that is the starting point for this appeal.[4]On the appeal we have had the benefit of submissions from Mr West, appearing on behalf of the Appellant, and Mr Tyler has appeared in person (and if we may say so, has made his position clear before us). The issues that arise are summarised by H.H.

Judge Peter Clark at the end of his judgment and we now quote from that:

"However, Mr West takes a further point. He submits that it was apparent from the letter of 16th September 1997 which was attached to the formal Notice of Appearance, that this unrepresented respondent was taking the point that if there was a dismissal it was for some other substantial reason, that is re-organisation of the business arising from the difficulties in which it found itself at the time, and that that dismissal was fair for that reason. It is quite clear to us that the point was not articulated in the Notice of Appearance in the way which it is now put by Mr West. We have in mind the recent reaffirmation in the Court of Appeal in Jones v Burdett Coutts School [1998] IRLR 521 of the long-standing principle that the Appeal Tribunal should not allow a new point of law to be raised for the first time on appeal, save in exceptional circumstances. If this is truly a new point, we should have dismissed the appeal here and now. However, we think that the principal point which requires full argument is this. Did the respondent sufficiently raise the alternative argument that if this was a dismissal it was for some other substantial reason and was fair, such that the Industrial Tribunal were obliged to address and adjudicate on that point. On the other side, it may be said for or by Mr Tyler, who was also unrepresented below, that he did not come to meet that case, and that accordingly the case was not dealt with by the tribunal on that basis. This is a matter for argument at the full appeal hearing. For present purposes, it is enough that we think the point is arguable, and accordingly, the matter will proceed to a full hearing on that point and the consequential effect on the tribunal's assessment of compensation. The hearing will be listed ... "
And he then sets out how that will be listed and goes on:
"The Notice of Appeal is varied as follows: points (i) and (ii) of Paragraph 5 are deleted in the light of our judgment, but (iii), (iv) and (v) remain."
Three, four and five were in the following terms:
"(iii) The Tribunal erred in not considering the reason for dismissal, section 98 of the Act. On the facts they still should have concluded that the reason was a necessary change to facilitate the changed needs of the business, or redundancy. (iv) In the alternative and in addition that the reasons are inadequate in that they show no proper rationalisation of the evidence related to the need to change. (v) The Tribunal erred in, consequently, not considering the prospect of the Applicant remaining in employment and for what period."
[5]Turning to the first point referred to by H.H. Judge Peter Clark, which was to be a matter for argument before us and which has been dealt with before us, namely, whether a new point is raised on this appeal. In our judgment it is clear that a new point is not being raised on this appeal and we say this for primarily three reasons, namely:(1) In our judgment the information set out in the IT1 and the IT3 identify the dispute that existed between the parties, and that identification of the dispute raises the matters which form the factual basis of the points of law which the Appellant company says the Tribunal should have considered.(2) In his skeleton argument Mr Tyler records in paragraph 1 that the difficulties Mr Smith found himself in were adequately discussed at the Southampton Employment Tribunal and of his own making.(3) In his submissions to us this morning Mr Tyler made it quite clear that the extent of the issues that arose between him and his employer, both as to changing his hours of working, the financial difficulties his employer found himself in, and Mr Tyler's allegations that he was being discriminated against and harassed, were matters which were gone into at some length in evidence before the Tribunal.[6]Turning thirdly to the second point identified by H.H. Judge Peter Clark as being one for consideration today, namely that it might be said by Mr Tyler that he did not come to the Employment Tribunal to meet the case as now formulated by Mr West. In our judgment correctly, this is not a point which was advanced by Mr Tyler. As he put it, below both sides were unrepresented and therefore there was an even playing field. He wen ton to say that to-day matters are tilted slightly against him because of the fact that the Appellant is represented.[7]In pursuance of our jurisdiction, we therefore have to consider whether or not the Employment Tribunal erred in law in reaching their decision. What is said on behalf of the Appellant company is that section 98 requires, as a matter of law, a Tribunal to go on to consider once it has concluded that an employee has been dismissed(a) firstly, what the reason for that decision was and then,(b) whether the dismissal was unfair.[8]If have doing so the Tribunal concludes that the dismissal was unfair the next point that would arise is in relation to compensation and, it is submitted on behalf of the Appellant company, that in assessing compensation the Employment Tribunal have to consider the well known decision of Polkey insofar as it relates to compensation rather than the decision as to fairness. As to that this point was not raised before the Employment Tribunal but the general principle and approach is helpfully summarised in the decision of Langston v Cranfield University [1998] IRLR 173, paragraph 21, where this Tribunal, through a judgment delivered by H.H.

Judge Peter Clark, say this:

"The generally accepted principle that a party will not be permitted to raise new points on appeal which could have been ventilated below must be seen in the context of cases where a principle is so well established that an industrial tribunal may be expected to consider it as a matter of course."
An unreported decision of this Tribunal in a judgment of the then President, Wood J, in Hepworth Refractories v Lingard at page 10 has passages to the same effect, where it says as follows:
"In the present case the principles of Polkey , constitute a proper application of the law as it exists. In our judgment it is for the tribunal to apply the law as it is understood to exist at any particular time. Any tribunal considering a compensatory award should consider the application of the Polkey principle to the issues before it and then make its findings accordingly."
[9]As we have said, in our judgment the underlying factual basis of the arguments put by the Appellant company on appeal are not new points. We also consider that all the points of law raised by the Appellant company, and which they say should have been considered by the Employment Tribunal, fall within the category of points that are so well established, that an Employment Tribunal may be expected to consider them and indeed, would be making an error of law if they did not consider them.[10]This goes back to Mr Tyler's point that before the Employment Tribunal there were two unrepresented parties who, if I can put it this way, each told their story to the Tribunal. It was then a matter for the Tribunal to apply the law to the facts as found by them.[11]It is also the obligation of an Employment Tribunal, when giving their reasons, to provide sufficient reasons so that the parties before them know why they have won or lost. As to that we were referred to the decision in Meek v City of Birmingham District Council [1987] IRLR 250 and, in particular, to the passage at paragraph 8 of the judgment of Bingham LJ in that decision of the Court of Appeal. We will set that passage out in this judgment because Mr Tyler is not represented. It reads as follows:
"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions to practices which should or should not be adopted."
[12]Turning to the Extended Reasons it is of note that paragraph 4 of the Summary Reasons, and then paragraph 7 of the Extended Reasons, confirm the conclusion we have already reached that the factual background relied on by both parties was investigated by the Tribunal. Turning to paragraph 4 of the Extended Reasons it is of note that the Tribunal say as follows:
"The Tribunal, in the first instance, has to decide if this amounted to a dismissal under Section 95(1)(c) of the Employment Protection Act 1996, namely a constructive dismissal."
It was submitted, in our judgment correctly, on behalf of the Appellant company, that in that passage the Employment Tribunal identify the first step to be taken in the statutory process. They decide that there was a constructive dismissal.[13]But we think it is fair to say, in agreement with the submission made on behalf of the Appellant company, that it is only in paragraph 20 that the Tribunal turn to consider the fairness of the dismissal and they deal with that in the phrase: "and that the dismissal was unfair" .[14]In our judgment one cannot find, within the Extended Reasons, an indication that the Tribunal went through the correct statutory and therefore well established procedure of identifying firstly what the reason for dismissal was and then, whether it was unfair having regard to the statutory test.[15]Further, it is the Summary Reasons that deal with compensation and there is no indication in those reasons that the Polkey decision and its effect was taken into account and thus that the matters raised in the last paragraph of the Notice of Appeal were taken into account.[16]There is therefore, in our judgment, force in the alternative propositions made by the Appellant company that either the Employment Tribunal erred in law in not considering well established points of law, or they have failed to satisfy their obligation to explain that they have considered them and to give reasons why they have reached their conclusions having regard to them and thus , for example, why the dismissal was unfair. Those are all points of law.[17]Understandably, Mr Tyler in his submissions to us did not concentrate on points of law, but on points as to where he saw the justice of the situation. As to this we have sympathy for Mr Tyler because it is obvious that that is the way he would look at the matter. He says (and says, as we see it, with some force) that all these matters were gone into by the Employment Tribunal who are well familiar with the relevant law and it is quite obvious that as the decision was unanimous in this case that having heard all the evidence they were more than satisfied that all stages of the statutory tests were satisfied and therefore that he was unfairly dismissed and was entitled to the compensation they awarded. As we have said, we have some sympathy with that view, but the difficulty that Mr Tyler has is that this Tribunal is concerned with ensuring that Employment Tribunals do not make errors of law and therefore this Tribunal needs to be satisfied, looking at the Summary and Extended Reasons, that this Employment Tribunal acted in accordance with the law.[18]It is of course right that Summary and Extended Reasons should be read generously. However, in our judgment, reading these reasons generously, it is not apparent from them that the Employment Tribunal did take the course of considering the relevant law and thus that they went on from considering the issue of constructive dismissal to ask the question "What was the reason for the dismissal?" and then to ask themselves the question "Was it fair?" and then finally, when dealing with compensation, to consider the Polkey case.[19]It follows, in our judgment, that one of the alternative submissions made on behalf of the Appellant company is good, namely either that the Tribunal did err in law in not taking those steps, or that they have erred in law in not providing reasons which satisfy the approach set out in the decision in Meek . It follows that we have concluded that we must allow this appeal for the reasons we have set out.[20]We have concluded that the correct course is to remit this matter to the same Employment Tribunal. We do not think that this would cause them difficulty in re-assessing the matter. They have already heard the evidence of both sides. They will in fact know whether they considered the points of law we have referred to and simply omitted to include them in their Extended Reasons, or whether there is a need for them to consider them and then reach their decision and give their reasons, having regard to the findings of fact they have already made. It will, of course, be a matter for them as to whether there is a need for them to hear further evidence as to particular matters.[21]We will therefore allow this appeal and remit the case to the same Employment Tribunal.