MS S DANIELS v MICRO-WAREHOUSING LTD [1999] UKEAT 794_99_1210

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 794_99_1210Case No Appeal No. EAT/794/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS S DANIELSAPPELLANTMICRO-WAREHOUSING LTDRESPONDENT
Before
His Honour Judge J Altman Mrs R Chapman Mr G H WrightDate 12 October 1999
[1]APPEARANCES For the Appellant MR A J MARRIOTT (Solicitor) Messrs Lees Lloyd Whitley Solicitors Imperial House 15-19 Kingsway London WC2B 6UN JUDGE ALTMAN : This is an appeal from two decisions of the Employment Tribunal sitting at Liverpool, the first on 5th March 1999 and the second on 9th June 1999. The first was one in which the Employment Tribunal dismissed the complaint of unfair constructive dismissal and the second was a decision in which the application for review of the first decision was refused. The appellant's claim was that her treatment at the hands of Mrs Daly her sales manager, her diminution in her role and responsibilities, and the failure of the respondents to resolve her grievance were all in breach of the contract of employment so that the appellant was entitled to resign and treat the resignation as a dismissal.[2]The Employment Tribunal in their decision pointed out that there was a complete conflict in the accounts of the appellant and Mrs Daly's witnesses. The Employment Tribunal said they were "mindful of the evidence of the other witnesses." They must there have been referring to Miss Marsh and Mr Wilson for the appellant and Miss Brown and Mrs Conroy for the respondents. The Employment Tribunal said that they were particularly mindful of the evidence of the last two witnesses.[3]In paragraph 9 of the decision the Employment Tribunal said as to the evidence of Miss Brown and Mrs Conroy:
"Their evidence was, in a number of very serious respects, totally at odds with Mrs Daniels. Furthermore, their evidence was not of such a nature that it permitted the realistic prospect of a simple misunderstanding. If they were telling the truth, it had to follow that Mrs Daniels was not. The majority view was that they were telling the truth."
[4]The Employment Tribunal then went on to deal with their findings of fact in respect of a number of allegations made by the appellant. They found:(1) that a reference by Mrs Daly to the morale of the sales team during the appellant's sickness absence was a relatively minor incident;(2) that problems began on Mrs Daly's promotion and with the appellant being responsible to her; that this situation gave rise to the problems between the two women and that the appellant was unhappy with the situation;(3) that Mrs Daly did not indicate to the appellant that the appellant could leave or would be "got rid of", and they found that Mrs Daly spoke to the appellant to sort out any difficulties Mrs Daly's appointment may have caused;(4) that there was an incident about Mrs Daly's asking a supplier to come away from the sales floor and asking a sales person to return to the telephones in which they found there was nothing sinister, unpleasant or unusual;(5) that the allegation by the appellant that a meeting concerned with prioritising work involved severe and unjustified criticism of her was to be rejected;(6) that whilst the appellant was on holiday the office was reorganised and the appellant's team was reduced and that on her return the appellant had no monitor and printer for a few days because it had been given to another. The tribunal appear to have seen nothing to support the appellant's complaints in this regard.(7) that Mrs Daly refused a period of leave to the appellant on the mistaken ground, as the tribunal found, that another employee had already reserved that period. The tribunal found this was a genuine mistake.(8) that Mrs Daly attracted the attention of the appellant whilst she was on the telephone by placing her hand on the appellant's shoulder. The tribunal expressly rejected the appellant's allegation that this was a violent assault and an improper act. They also rejected the contention that Mrs Daly was interrupting the telephone call in any way designed to upset the appellant.(9) that they rejected the allegation that there was something improper in Mrs Daly's approach of Miss Timmis and the appellant in the car park.[5]Further, in their decision, the tribunal found that the appellant had had a meeting with Mr Atkins, presumably a senior manager, and had raised complaints about Mrs Daly.[6]In assessing these facts, the Employment Tribunal preferred the evidence of the respondents' witnesses and they found as follows in paragraphs 12, 13 and 14:
"12 It is well established that that conduct must amount to a fundamental breach of the contract of the employee concerned. 13 Mrs Daniels claimed that she had been mistreated over a period of weeks, culminating in a violent assault, all of which constituted a breach of the implied term in her contract relating to trust and confidence. 14. The majority conclusion was that she had not been mistreated by Mrs Daly or indeed anyone else on behalf of the Company. Her resignation had been simply that and could not be construed as a dismissal. It followed, therefore, that her claim of unfair dismissal failed."
[7]A number of matters are raised in support of this appeal. The essential ground which has been succinctly and comprehensively argued before us by Mr Marriott is set out in ground 6.1 of the Notice of Appeal:
"That the Tribunal in reaching its decision of the 12th May erred in law by taking into account evidence upon which the Respondent was deemed to be no longer relying as the evidence had not been put to the Appellant in cross-examination."
[8]What is alleged is that during the course of the hearing a number of matters were raised in evidence by the witnesses called on behalf of the respondent which had not been put in cross-examination to the appellant. As this was a claim for constructive dismissal, we have assumed that the appellant had given evidence first. Therefore, her evidence was over when these untested matters were given in evidence by the respondents' witnesses. We are told that during the course of the hearing the learned Chairman agreed with the proposition that matters had not been put and said that it had been noted.[9]It is suggested that the tribunal erred in law, therefore, in relying upon that evidence when they came to determine matters of credibility. It is acknowledged that the way in which evidence is presented is a matter generally within the discretion of the tribunal, but Mr Marriott says that parties will be left believing that their case has not been properly tried on the evidence where a decision is made on evidence on matters which are not put to one side, particularly where issues of credibility are involved.[10]However, we are told that the appellant was represented. We know of no process by which evidence is to be ignored if it is not put to the other side. It is a matter of regret where evidence is not put properly to the other witnesses on the other side, because it makes it harder for the Employment Tribunal to assess the witnesses themselves. But the very fact that the Chairman had observed during the hearing that they had noted this fact, must, it seems to us, mean that, in their assessment of the evidence and in particular as to whom to believe, they had taken account of the fact that some matters had not been put in cross-examination and that must have been weighed in the balance. Mr Marriott has suggested that in the passage which I have quoted in paragraph 9 of the decision it looks as if the tribunal have ignored that feature of this case by adopting evidence of witnesses whose testimony had not been put to the witnesses called on behalf of the appellant including the appellant herself.[11]We can find no support for that proposition and we can find no error of law on the part of the tribunal in that argument whatsoever. It seems to us that the Employment Tribunal made findings of fact which they were entitled to make on the evidence and drew conclusions by the proper application of legal principle which led them to the decision which they reached. The process of hearing evidence and assessing that evidence was, on all we have heard, conducted in accordance with the general principles that Employment Tribunals adopt. Whilst we acknowledge that Mr Marriott says that where there are representatives in a case the approach of an Employment Tribunal will tend to be a little more formalistic than in the ordinary course of events, nonetheless, we would be very slow to impose upon an Employment Tribunal the obligation to introduce as a matter of law rules about what should be put in cross-examination and what should not. That is a matter very much within the experience and general control of the Chairman of the Employment Tribunal as the hearing proceeds before him. There is nothing before us to suggest that he erred in law in the way in which he handled this particular case.[12]Although the other grounds of appeal have not been specifically argued before us, it seems to us right that we should look at them.[13]Ground 6.2 suggests that the Employment Tribunal should not have relied upon the evidence of Mrs Conroy because there was evidence of confusion and uncertainty over dates and conversations.[14]It is very rare that there is not a degree of variation in witness' evidence and that is all part and parcel of the matters taken into account by an Employment Tribunal. The way in which truth is assessed by an Employment Tribunal is a matter for them based upon their impression of the witnesses, as long as they come to a conclusion which they are properly capable of coming to on the evidence. Simply to pick out one aspect which may be taken into account in the assessment of evidence does not, it seems to us, demonstrate an error of law.[15]Ground 6.3 suggests that in paragraphs 10(xiv) and (xvi), which were related to the allegations of an assault, the Employment Tribunal failed to take account of the evidence of Mr Wilson, who was an unwilling witness and therefore, prima facie, presumably to be believed who gave corroborative evidence that the appellant was in a state of distress immediately after this incident.[16]But that is unsupportable. When one looks at the decision, in terms in paragraph 9 the Employment Tribunal said "we were mindful of the evidence given by other witnesses". It seems to us that that must include Mr Wilson, whose evidence appears to have related to the behaviour or the state of the appellant after the incident was over.[17]Finally, an application for review was sought by letter dated 19th May 1999. It is complained that the request was properly raised by way of letter by the appellant and that it was an error of law not to grant the hearing of a review.[18]In a careful and thorough decision, if we may say so, the Chairman set out the ground of refusal, which is the only ground available in law, namely that there was no reasonable prospect of the review succeeding. He then set out the reasons.[19]The request for the review was essentially asking the tribunal to think again. The principle upon which tribunals and courts generally operate is that there should be a finality to a decision and parties should be entitled to know where they stand rather than that cases should reopened. There are exceptions. If there is an error of law then a party is entitled to appeal to the Employment Appeal Tribunal. If the interests of justice require a review there is a restricted right within 14 days to apply for one. But that relates to something which occurs or some matter that arises which really does mean that the original decision fairly falls for reconsideration. Simply asking the tribunal to change its mind on evidence which they have already heard is simply asking, as the Chairman properly said, for a "second bite of the cherry", for another hearing all over again. The law does not permit that. It seems to us in any event that the Chairman properly considered all the factors and came to a conclusion on the law which a Chairman is entitled to come in dismissing an application for a review and no point of law arises upon that.[20]Accordingly we find that there is no point of law that can reasonably be raised by way of argument in full before the Employment Appeal Tribunal and we dismiss the appeal at this stage.