MRS M LYNCH v DONCASTER MOTOR TRADES GTA [2000] UKEAT 579_00_1610

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 579_00_1610

Case No Appeal No. EAT/579/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS M LYNCHAPPELLANT

DONCASTER MOTOR TRADES GTARESPONDENT

Before

His Honour Judge J R Reid

Date 16 October 2000

[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON JUDGE REID QC : This is an appeal by Mrs Lynch against a decision of an Employment Tribunal following a hearing on 21st December 1999 at Sheffield. That decision was promulgated on 21st March 2000. By the decision the tribunal unanimously decided that:

"1. The applicant was not dismissed, fairly or unfairly. She simply resigned and her claim for unfair dismissal fails and is dismissed. 2. The respondent neither deducted wages from the applicant's pay unlawfully nor breached the applicant's contract of employment. Those claims, too, fail and are dismissed."

So far as those latter claims are concerned, it should be noted that Ms Parker, who represented Mrs Lynch before the Employment Tribunal, during her final submission accepted that it would be difficult to justify the other claims further pursuit. At this stage this is an ex parte hearing to determine whether or not the appeal should go to a full hearing.

[2]Mrs Lynch was employed by the Doncaster Motor Trades GTA from August 1991 until she left on 31st March 1999. She resigned on that day and this is how she puts it in her Originating Application:

"On 31 March 1999 I resigned my position because of the conduct of my immediate supervisor Mr G Thompson. I gave him a month's notice. Mr Thompson's conduct over a number of weeks contributed to a destruction of good working practices within my area and reached unacceptable proportions when he undermined my authority during the appointment procedure for a new employee (a Mrs M Davies). This final straw destroyed that "trust and confidence" that was my implied contractual right. I consider that I was constructively and unfairly dismissed and without notice pay."

[3]The case that was put before the tribunal was that Mrs Lynch was subject to one final straw that broke the camel's back, so to speak, and as a result of that she resigned.

[4]In a nutshell, the complaint about what happened on that occasion was that:

"7. In March the selection process for a new tutor/assessor within her department was well underway. The applicant had been part of that selection process, indeed she had been instrumental in drawing up the shortlist of candidates. She had, she said, made it known to Mr Thompson that she was not partial to a particular candidate because that candidate, Mrs Margaret Davis, lacked the necessary experience in one or two important areas. On the evening of 23 March, the applicant had discussed the position with Mr Thompson and it had been agreed that she should contact three on the shortlist to make further enquiries of them. During the course of speaking to one of them, Margaret Davis, she found to her horror that Mr Thompson had actually appointed her to the post. She felt completely undermined and embarrassed. She telephoned Mr Thompson's home and spoke to his wife who also happened to be the respondent's administration manager. Mrs Thompson professed not to know anything about it but appeared to understand the applicant's point of view. 8. So distressed was the applicant that she sat down at 2.00 o'clock in the morning and wrote out a letter of resignation. … She handed that to Mr Thompson the next day but it was not until the Friday, i.e. 26 March, that Mr Thompson said anything at all to her and then not very much. She was prepared to work her notice, primarily to help her employers "so as not to leave them in the lurch"

. Mr Thompson made no decision about this or, if he did, it was not communicated to her. Mrs Lynch therefore presumed that she was not to be allowed to work out her notice. She left finally on 31 March." That, as I say, was the way the final straw was put by Mrs Lynch in her evidence.

[5]The tribunal found as a matter of fact that the reason that this unfortunate chain of events had come about was that the particular applicant was in the view of Mr Thompson the best of the applicants and that Mr Thompson learned that this applicant was looking at another job as well and was going for a second interview the following day at Maltby where she lived. He therefore decided that he needed to act quickly. Therefore being constrained by time offered the job to Mrs Davis. He felt that he had no need to consult with Mrs Lynch because the decision was his and one that he felt was made in the overall interests of the company. He needed to move quickly and he also had a number of other things to do on that particular evening and on his arrival home, sometime after 11 p.m., he learned about Mrs Lynch's telephone call. Because it was too late to speak to her then, he decided to speak to her the following day. He says that what happened then was that Mrs Lynch came to him angrily and presented the letter of resignation which at that stage he did not have time to read.

[6]The tribunal took the view, as a matter of fact, that so far as that matter was concerned it was unfortunate but not conduct that could be said to undermine her contract of employment. It was particularly unfortunate that he did not speak to Mrs Lynch when her notice was tendered on a one to one basis, but the tribunal took the view that that latter was not something that went to undermining the trust and confidence because that came after the resignation was tendered. That, we respectfully say, was entirely right. The particular incident, they felt, was not a matter which went to undermine the trust and confidence by itself, so they then had to look at the cumulative effect of the conduct.

[7]The first point raised in Mrs Lynch's skeleton argument is that the tribunal did not seek properly to consider "whether the cumulative conduct of the employer went to the root of the contract by destroying and undermining the mutual trust and confidence and as such was a fundamental breach of contract." She points out in her written submissions, that "the last action of the employer which leads to the employee leaving need not of itself be a breach of contract." She also pointed out that "the term may be broken even if subjectively the employee's trust and confidence is not undermined, in fact, it is enough that viewed objectively the conduct is likely to destroy or seriously damage the trust and confidence." She goes on to say that "breach of contract (my position as Business Studies Manager was undermined – my credibility to staff directly under my control was destroyed)". She says that the Employment Tribunal failed to take into account her loyalty to the firm, her length of service, her status (viewed as a top performer) and they did not consider the degree of hurt sustained due to her employer's breach of trust and confidence – so that she was left with no alternative but to resign.

[8]The tribunal, in our view, did properly consider the cumulative conduct. The matters, which were relied on before the tribunal as being matters of cumulative conduct, were set out in the extended reasons and they were four. Mrs Lynch had had the misfortune to suffer a car accident, as a result of which she was away from work for a total of four months, one month of which she spent in hospital. She complains that the employer was unsympathetic in that it was only at the very end of her time that she received any sort of communication direct from them by way of a get well card and that she was never visited by her superior whilst she was in hospital. When she came back the matters relied on, according to the Originating Application, begin and they were first, a colleague had put her name on the door of her room; secondly, that her desk had been moved; thirdly, that a computer room to which she had always enjoyed access had been locked; and, fourthly, that a parking space in the car park, which she had previously enjoyed and which gave her easier access to her own department, was not available to her due to the gates of the car park being constantly locked and making it difficult for her to gain entry, particularly as at that time she was still on crutches or sticks and she was having to take files homes which meant that she required assistance going too and fro.

[9]Those particular matters were all considered by the tribunal and they took the view that:

"14. … Mrs Lynch has not established that the matters she complained of prior to the events of 23 March and beyond were serious enough issues although we can well understand why someone who had been absent from work for a period would have some doubts and apprehensions upon returning, particularly when things appeared, by and large, to have been successfully managed during that absence. …"

We should say that so far as those matters complained of were concerned, there was acceptable evidence as to how those matters had occurred, save in respect of the desk movement as to which Mr Thompson, the supervisor, was unable to explain how it had happened.

[10]Now those were matters of evidence, which the tribunal reviewed, and they came to a conclusion, which they were entitled to come to. The complaint therefore relating to the earlier matters did not amount to a breach of contract and, in those circumstances, Mrs Lynch was thrown back, in our view rightly, on to the last of the points, namely, the events which occurred in relation to the appointment of Mrs Davis. To succeed she had to overturn the tribunal's findings in relation for that appointment.

[11]In relation to that, there was a straight conflict of evidence. On the one hand Mrs Lynch said that her remit included the appointment of staff who were to be working under her. The evidence of Mr Thompson was that that was not in fact something that she was entitled to do and that on the two occasions when she had been engaged in it, he felt that the result had been unfortunate.

[12]The tribunal having heard the evidence took a view of the evidence and they found in paragraph 15 that they entirely accepted that:

"… Mr Thompson had sole right to make appointments but as would be the case with any wise manager, it would have been sensible to consult those who were close to him, not least the manager of the department where the new appointee would be located. There was no suggestion that Mr Thompson failed to do this. …"

[13]The tribunal therefore rejected Mrs Lynch's evidence that she had a right to make these appointments and they rejected also the suggestion that there had been some sort of delegation of authority because of two appointments made by her in the course of the previous eight years. They also rejected the suggestion that the appointment undermined the bond of trust and confidence between employer and employee.

[14]This was a matter which the tribunal was entitled to determine on the evidence which was before it and, in our judgment, it cannot be said that this amounted to a finding of fact to which no reasonable tribunal could have come. As Mrs Lynch appreciates the appeal to the Employment Appeal Tribunal is simply on a point of law and it would therefore be necessary for her to assert that the tribunal was perverse and had reached a decision which no reasonable tribunal could have reached on the evidence before it. In our judgment, that is not the position in this case. The evidence comes nowhere near that, and it follows that the tribunal were entitled to find as they did, namely that neither the "final straw" above nor the totality of all the incidents relied on – including both the "final straw" and the earlier incidents – amounted to a breach of contract.

[15]Going beyond that in her skeleton argument, Mrs Lynch says "the tribunal did not properly consider the sexual harassment I was subjected to (see extended reasons page 2 item 6 and page 3 item 9)."

[16]These were matters which were raised in the course of the hearing and were not raised in the Originating Application. In our judgment, given the nature of the Originating Application, it cannot be said that the tribunal fell into any error in failing to make any findings about sexual discrimination or in making its findings as to the claim for breach of trust and confidence without reference specifically to the allegation that a particular member of staff had on occasion been over-familiar with her.

[17]I have already dealt in passing with the tribunal's decision being perverse, as it is alleged, and said that we do not agree with that contention.

[18]The third point that Mrs Lynch raised in her skeleton argument is that subsequent to the Employment Tribunal further evidence had been obtained to establish a pattern of behaviour by the employer and proved that the employer had lied under oath.

[19]So far as that evidence is concerned, what it boiled down to was that there were some witness statements from a Mrs Bee Whittaker; and from a Mrs Janine Lowe and a draft note of a telephone conversation with a Ms Pauline Empson.

[20]Dealing with them, Mrs Lowe, who worked for the respondent company until the early part of 1993 over a period of a number of years, had, in our judgment, nothing which could remotely have impinged on the decision of this tribunal. So far as Mrs Whittaker was concerned, it had been intended to call her as a witness but she was unable to attend on the day of hearing. Although the solicitor had Mrs Whittaker's statement and although it appears to have been suggested by the Chairman that the statement should be put before them, the solicitor then representing Mrs Lynch did not do so. In our judgment, it is now far too late for any attempt to be made to put that evidence in front of the tribunal. If it had been intended to rely on that evidence it could have been done at the time of the hearing and there is no basis now for giving leave to introduce that statement, even if it were to be assumed that that might assist Mrs Lynch. Ms Empson's evidence, in our judgment, could not be of material assistance to a tribunal, even if it were shown that Ms Empson's evidence could not have been reasonably available below.

[21]What these further statements were intended to do was to show that the tribunal was wrong in the evidence which it accepted. The problem is that so far as the evidence might have been of any use to the tribunal below it was not used. As I have said, this is a tribunal which deals only in points of law and the fact that Mrs Lynch would with hindsight have wished to have adduced other evidence is not a reason for allowing an appeal or ordering the matter to be reheard.

[22]Beyond that, there were three points which actually formed the basis of the grounds of appeal as they presently stand.

[23]The first is that the bundle of documents was not shown to Mrs Lynch until five minutes before the start of the tribunal. This was no fault either of the tribunal or of the respondent. Mrs Lynch told us that her solicitor had the bundle and apologised for not having sent the bundle on to Mrs Lynch before the hearing because she, the solicitor, was under the impression that they had been sent to Mrs Lynch. There can be no complaint over the conduct of the tribunal or the result achieved because of the lack of communication between Mrs Lynch and her solicitor. If she has a complaint to that matter or indeed any other matter concerned with her representation before the tribunal or the preparation of that representation, the person against whom the complaint must be made is the solicitor.

[24]Secondly, Mrs Lynch then says there were abuse of process in the direction of the tribunal with the falsification of documents. What this boils down to is that she says that in one document a date of an appraisal had been altered with a view to casting doubt on her integrity and in another document a manuscript note at the top was purportedly made by her, according to the other side, but was not in fact made by her and that the annotation was done after Mrs Lynch had left the employment. Those were both matters which were available for use in the tribunal below and I understand it, from Mrs Lynch, both the discrepancies in the documents were matters which were placed before the tribunal. They are not therefore something new which could lead to a rehearing, they are matters which the tribunal could take into account in the course of its deliberations and give such weight to as it thought fit.

[25]The third of the matters in the original appeal form I have already mentioned, that is the witness statement of Mrs Bee Whittaker which was available, could have been put up, but Mrs Lynch's representative chose not to put it in front of the tribunal.

[26]Lastly, she says that there should have been an adjournment. The position was that in late afternoon on 21st December, when the weather was bad, it was snowing and it was getting icy, all the evidence had been heard and the members of the tribunal were about to retire to consider the case. The Chairman then apparently suggested an adjournment to meet again to consider the case and reach a decision, but Mrs Lynch's solicitor said that she did not want that to happen because she was about to start her maternity leave and would not be available until March, at which the time the Chairman said he would not be available because he was due to have a hip replacement. It followed that the tribunal retired to consider their decision at that stage.

[27]The result of that was that the tribunal was not reconvened at some later date. It is not suggested that as a result of the non-adjournment of the consideration by the tribunal that any evidence or submissions were not taken. The suggestion appears to have been at the point where the tribunal would have retired to consider its decision after all submissions had been made. In those circumstances, we are unable to see how it is that the determination of the tribunal to carry on and finish their deliberations that day, when in fact it took them a further three months to produce the extended reasons, can be said to be a ground of appeal.

[28]We appreciate that Mrs Lynch feels very strongly that justice was not done and she feels very strongly that the tribunal erred in its findings of fact. She also, it is clear, feels that, with the benefit of hindsight, she would have liked the case conducted in a way different from that in which it was conducted and on evidence above and beyond that which was produced before the tribunal. Regrettably from her point of view, none of those matters amounts to a point of law. The points of law which have been raised in the skeleton argument are points which, in our judgment, looking at the facts as found by the tribunal, do not have any substance. It follows from that, that we take the view that this is not a case which should go to a full hearing.

[29]It is perhaps worth, by way of a finale to this judgment, just reading a passage from the letter that Mrs Lynch wrote to the Employment Appeal Tribunal on 24th April, in which she said on page 2 as follows:

"You will gather from my efforts that I am desperate to bring this man (Geoff Thompson) to justice. He must not be allowed to harass and intimidate his staff. Not only did he destroy my life with his constant manipulation and lies; he has had the same effect on Janine Lowe several years previous. Geoff Thompson openly boasted that he was going to 'sack' Janine. We were told that he was getting rid of her because she had had time of sick, he said he knew she couldn't do anything about it because she had not been employed by the company for two years. However, he did tell me that she had taken him to a tribunal – his exact words were 'the bitch has taken me to a tribunal and got £2,000 out of me'. Since speaking to Janine I know that this is just another one of Geoff Thompson's lies as she never received any money. I hope you will see from the various statements that I have provided that Geoff Thompson is a very different man from the one presented to the Tribunal. When I embarked on this claim I was told that 'you can't argue with a liar'. I hope that you can see that I do not intend to argue with him, only to expose him. What he did to me, Bee Whittaker, Michael Toone and Janine Lowe he will do again if he is not stopped. …"

[30]No doubt Mrs Lynch takes the view that this would be a public service if it was done. But regrettably, from her point of view, the function of this tribunal is not to conduct some wide-ranging enquiry into the faults and defaults of particular employers, but to determine whether on a particular case the tribunal below has been in error on points of law. On the material before us it seems that it has not. We therefore direct that the appeal be dismissed.