MR N MURRAY v HM LAND REGISTRY [2000] UKEAT 813_00_2211

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 813_00_2211Case No Appeal No. EAT/813/00 EAT/1268/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR N MURRAYAPPELLANTHM LAND REGISTRYRESPONDENT
Before
Mr Recorder BurkeDate 22 November 2000
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT MR RECORDER BURKE QC : Mr Murray was, until September 1999, employed as a Registration Officer by the Respondents, HM Land Registry in Swansea. He had been employed by the Respondents for over 11 years. In December 1999 he issued proceedings in the Employment Tribunal complaining that the handling of his application for promotion had been such as to amount to a fundamental breach of his contract of employment and that he had thereby been constructively and unfairly dismissed.[2]On 7 April 2000 there was a pre-hearing review chaired by Dr Davies. At that hearing the Respondents' Solicitor argued that Mr Murray's claim had no reasonable prospect of success and sought an order that Mr Murray should pay a deposit as a condition of proceeding further under the provisions of the Rules to which I need not expressly refer. The Tribunal concluded that it was of the opinion that the claim had no reasonable prospect of success but that because of Mr Murray's means, or rather lack of means, it would not make an order for payment of a deposit.[3]Aggrieved by this expression of opinion Mr Murray, within the requisite period, applied for a review. On 17 May Dr Davies, who had chaired the Tribunal on 7 April 2000 and now was sitting alone, refused the application for a review. Her reason was that there was no order against Mr Murray which could be reviewed. There was no order for costs or the provision of a deposit, there was only an expression of opinion as to the merits of his case which could not itself be reviewed.[4]On 26 June Mr Murray put in a Notice of Appeal to this Appeal Tribunal against that refusal of a review. That gives rise to the first appeal which is before us today. The substantive case proceeded. It was heard by the Tribunal in Cardiff on 2 August, the Tribunal on this occasion being chaired by Mr Pritchard. By its decision, promulgated with Extended Reasons on 22 August, the Tribunal dismissed Mr Murray's claim. By a Notice of Appeal dated 30 September Mr Murray appeals against that substantive decision and that is the second appeal before us today. In each case we are dealing with those appeals by way of preliminary hearing. Mr Murray has not attended today to present or support his appeal. He has sent us a faxed message which says:
"In regard to pre-hearing review of EAT References [and then he gives the references relating to both his appeals] I would ask that these matters be decided in my absence. I am unable to attend owing to a cash flow problem associated with my unemployed status."
We are content to proceed in Mr Murray's absence as he has asked us to do. We will deal first with the first of the two appeals.[5]Rule 9 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 in Schedule 1 provides for a review of a decision. In our view there is no jurisdiction to entertain a review of an expression of opinion which has not resulted in any adverse decision to the person who is seeking a review. But even if we were wrong about that, all of the subject matter of the pre-trial review has been overtaken by events. There is no purpose now in there being a review even if the refusal of the review had been in error, which we do not think that it was, and therefore there is no arguable basis on which the first appeal could be put. The Tribunal made no order which affected the substantive hearing or could affect the position of the substantive appeal. The appeal against the refusal of a review can have now no possible effect upon the parties' positions. However those positions are resolved, it would be wholly academic to pursue an appeal now, even if there had been an error of law. Therefore the first appeal is dismissed.[6]We turn therefore to the second appeal. The alleged dismissal occurred, as we have said, in the context of Mr Murray's application for promotion. The thrust of his case, as is clear from his Originating Application, was that he had not been accorded equality of opportunity in the competition for promotion in which competition, according to the findings of the Tribunal, there were 50 participants. As a result of his perception that he had been so treated he resigned.[7]The Tribunal directed itself to consider the issue of constructive dismissal, pursuant to the well known authority of Western Excavating (EEC) Ltd v Sharp [1978] IRLR 27 , by asking itself four questions. Was there a breach of contract? Was there a fundamental breach if there was a breach of contract? Did that breach cause Mr Murray's resignation and did Mr Murray waive the breach by staying on too long thereafter? There can be no valid criticism of that direction to itself by the Tribunal.[8]The last two questions were not the subject of any conflict. Mr Murray had resigned immediately upon the conduct which he maintained was repudiatory conduct and because of that conduct. The central issues were whether there was any breach of contract on the part of the Respondent and, if so, whether such breach or breaches went to the root of the contract of employment i.e. were there fundamental breaches of it.[9]The Appellant's line Manager, Mr Heatley, according to the findings of the Tribunal, at first filled in the necessary assessment forms for the purpose of the Respondents' consideration of Mr Murray's application for promotion in very favourable terms, although as the Tribunal found he had misgivings about Mr Murray in a number of areas. Those areas were principally: absences from work, time-keeping and an ability to get on with other members of the team. Mr Heatley was then required by his superiors to fill in what he had at first failed to complete, namely that part of the form in which he actually had to make a recommendation one way or the other about Mr Murray in terms of his suitability for promotion. Plainly with reluctance he did so and, as the Tribunal found, he expressed the view that Mr Murray was wanting in three areas, team work, providing a quality service and remaining calm and courteous when faced with difficult situations. As it happens the employers felt that Mr Murray had reached the level on the basis of the assessments made of him, despite Mr Heatley's second efforts which were not as favourable to Mr Murray as his first, at which Mr Murray qualified at least to be interviewed for promotion. But by the time that decision was made Mr Murray had left believing, according to the Tribunal's findings, that Mr Heatley had intended to achieve his disqualification for promotion or at least to scupper his chances for promotion by the way in which Mr Heatley had handled the assessment documentation. Disqualification was clearly something which before the Tribunal Mr Murray made much of. The procedures for selection for promotion, set out, in paragraph 25:
"Any attempt by individuals to secure progression for themselves, or others, by the exercise of influence could result in the disqualification of the candidate."
[10]The Tribunal went on to find that the Applicant feared that Mr Heatley was reckless as to whether the Applicant would be or actually intended to get the applicant disqualified for promotion, because Mr Heatley wanted to keep Mr Murray and his talents on arduous work of no great quality. The Tribunal continued that they had read paragraph 25 and re-read it and were quite clear that disqualification was not at any time a risk in this case because the provisions in the procedures, which we have read out, refer to lobbying for individuals or nepotism or such like and not to a situation in which a manager simply puts in, on the appropriate forms, a good word for somebody they are managing. That analysis of the document and approach to the facts by the Tribunal appears to us to be wholly unexceptional. It was plainly right.[11]The first ground of appeal, which we have considered as set out both in Mr Murray's Notice of Appeal and in the arguments which he has presented in writing in support of the appeal over many pages (and we say that in no critical way), is that the Respondents made allegations and insinuations about Mr Murray and, in particular, his time-keeping, his attendance, his health and his general conduct, which it never sought to make good and was not required to make good in evidence by the Tribunal, which allegations and insinuations Mr Murray believes must have had a detrimental effect on the Tribunal's view of him and his case. In our judgment Mr Murray has misunderstood the position. The Respondents made no allegations against him. It was the evidence of Mr Heatley that he had, when forced to it by management, retreated from his first favourable assessment which did not answer all the questions that he was required to answer and had expressed his misgivings about Mr Murray in the three areas to which we have referred. It was not the Respondents' case that Mr Murray was, as a matter of fact, a bad time-keeper or had poor health, or was deficient in the other respects which we have identified; it was simply part of the history that Mr Heatley had when forced to it drawn attention in his assessment to what he regarded as short-comings on Mr Murray's part. The Respondents did not set out to prove that they were true. They were not invited to prove that they were true. The Respondents did not need to prove that they were true. If, of course, Mr Heatley or anybody else had knowingly allowed false allegations to be made then that might have been a breach of contract on the Respondents' part. The Tribunal correctly, at paragraph 9 of its decision, identified that in this area what they had had to consider was whether the criticisms were put forward on a bona fide basis or whether somehow a case had been concocted against Mr Murray which had no bona fide foundation. The Tribunal, having asked itself correctly that question, went on to decide, as a matter of fact:
"Whilst it may be possible that inter personal conflicts could have been lessened by a stronger managerial lead this is a very long way from saying that these are not genuine or bona fide management concerns which are absolutely proper ones for Mr Heatley to have. It was his duty to the respondent to report these in a frank way in his non-recommendation for promotion. Mr Heatley, although not doing it at the first opportunity, was doing no more than his duty. He did it conscientiously with as much kindness and tact as we felt he could."
Despite the careful and sustained way in which Mr Murray has advanced this ground of appeal in his written arguments, in our judgment no arguable ground of appeal arises.[12]Secondly, Mr Murray argues that the Tribunal eliminated from its consideration his complaint that his technical competence was not properly presented through the assessment system and that his promotion application was as a result seriously down-graded. The Tribunal, he says, indicated that his technical expertise after 11 years was not in doubt and refused to allow him to produce further evidence about his technical expertise, in particular to produce a document, which it appears he himself had made, which went to substantiate and prove the extent of his expertise. It is clear to us that the Tribunal took the view that Mr Murray's technical competence was not in issue. At paragraph 6 of its decision the Tribunal says:
"At the time that the applicant had no supervisory responsibilities as a contractual term. In practice he helped others but it was not a term of his contract that he supervise, [as an RO]. The applicant answered these questions [refers to questions in a form for purposes of promotion] very fully and then the form was passed on for the manager's assessment. There was an assessment made of his technical ability which we regard as rather a sideline in the case. It is quite clear that the technical ability is not the burden of the applicant's complaints and had no bearing on the ultimate decision not to recommend him for promotion. …"
[13]It appears to us to be quite clear that the assessment which was made by Mr Heatley was not at all unfavourable, so far as technical expertise and technical competence were concerned. The difficulties which Mr Heatley's ultimate recommendation put forward lay in other areas altogether. Mr Murray argues that the failure of the employers to give him a full opportunity to have a proper assessment made of his technical competence was a breach of contract on the part of the employers; but since his technical competence was not in doubt we do not see any arguable ground for suggesting any breach of contract in that area, nor do we see any arguable ground for suggesting that the Tribunal in its approach to this issue erred in any way.[14]We have not found it easy to understand entirely the basis of the argument in support of the third ground of appeal. It is briefly put in the Notice of Appeal in these terms:
"The Tribunal erred in law in that it misheard the remaining elements of the Originating Application."
[15]What appears from the written arguments is that the Tribunal is said to have heard the complaint as a complaint about procedure as opposed to looking at the substance of the case, namely whether the employers had failed to treat Mr Murray fairly, equally, honestly, respectfully and honourably, to use words which he sets out in his written argument, and thus had fundamentally broken the contract of employment.[16]We have looked with great care to see whether there is anything in the decision which is vulnerable to criticism in the respects set out in the arguments put forward by Mr Murray. In our judgment the Tribunal correctly identified the issues, correctly considered whether on the facts put forward before the Tribunal there was a breach of contract, decided that there was not as a decision on the facts and made a decision which they were entirely entitled to make. We see nothing in ground 3.[17]Finally, in ground 4, Mr Murray argues that the Tribunal erred in law in directing him to accept as fact the testimony of the employers, although they had not yet given it, which direction says Mr Murray, "ruled in evidence which the Chairman in a previous direction had ruled out as irrelevant was a substantial irregularity in proceedings".[18]When we look at the written arguments it appears that this complaint by Mr Murray principally is addressed again to the evidence about Mr Murray's shortcomings. Mr Murray says in his written submissions that the decision makes it clear that the Tribunal accepted the insinuations and allegations against him as facts and relied upon them in coming to its decision and that it should not have done so, because he was denied the opportunity to contest the accuracy of those allegations and insinuations.[19]There is, in our judgment, nothing in this criticism of the decision either. We have already set out why we consider that the Tribunal was entitled to proceed in relation to those matters as it did. We have considered with great care all the matters urged by Mr Murray in support of his ground 4, not all of which we have expressly referred to, and have concluded that, in our judgment, there is nothing in them either.[20]Ground 5 in the Notice of Appeal amounts in effect to a sweep-up ground, that the Tribunal erred in law as a result of the combined errors which are referred to in grounds 1, 2, 3 and 4 of the Notice of Appeal, each of which we have already addressed. It adds nothing more and need not be dealt with separately.[21]In our judgment there is no arguable ground of appeal, either in the first appeal or the second appeal and both of them are therefore dismissed.