MR D KAWOL v SHAW HOMES HOUSING ASSOCIATION LTD [2000] UKEAT 923_00_1112

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 923_00_1112Case No Appeal No. EAT/923/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D KAWOLAPPELLANTSHAW HOMES HOUSING ASSOCIATION LTDRESPONDENT
Before
His Honour Judge J Altman Mr K EdmondsonDate 11 December 2000
[1]APPEARANCES For the Appellant MISS KATE GALLAFENT (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE J ALTMAN This is an appeal from the decision of the Employment Tribunal at Southampton on 4 April 2000, when the Appellant's claims for unfair dismissal and wrongful dismissal were rejected. The Employment Tribunal considered by way of preliminary hearing whether there was a dismissal, and found against the Appellant.[2]The matter comes before us by way of a preliminary hearing to determine whether there is a point of law capable of argument in full before the Employment Appeal Tribunal. We are enormously indebted to Miss Gallafent, who has presented the arguments on behalf of the Appellant with the traditional expertise and skill that are a feature of the ELAAS scheme, and which have been of great assistance to us.[3]But by way of general comment, not pertaining to the particulars of this appeal, we would simply observe that the determination as to whether or not to conduct a preliminary hearing always requires a consideration of the extent to which the evidence to be adduced, at a preliminary hearing, may trespass to a large extent on the evidence to be heard at a main hearing, before a decision can be taken. That is not said in this case, and a preliminary hearing proceeded, but it is always difficult for a party to come to terms with the dismissal of a complaint when it is done at a preliminary hearing, and he or she may be left feeling that the real grievances that he or she has, have not been litigated. But it is, of course, important that the power of Tribunals to deal in this way, for the expeditious handling, not only of these, but all other complaints waiting in the pipeline, should be available in proper cases.[4]The background to the Employment Tribunal's decision was that the Appellant took what was termed "ill-health retirement"; the issue was whether this was, in effect, forced on him, effectively whether he was told "Resign or be sacked". Now we are urged by Miss Gallafent to say that the issue was whether the conduct of the Respondents before termination was such as to force him to leave, or entitle him to leave, in the way he did; with the result that the ill-health retirement procedure that was pursued amounted, in reality, to a dismissal, or as Miss Gallafent says a "constructive dismissal".[5]The Appellant was a nurse in residential homes. He was absent due to sickness from September 1998, suffering anxiety and depression which he attributed to problems at work, and including matters for which he blamed the Respondents. On 12 May 1999 he was interviewed about his health and prospects of returning to work. The Employment Tribunal found that the Appellant saw no prospect of return to his place of employment, and that he stated that transfer to another home would be impracticable.[6]The Employment Tribunal found that the Appellant was told that he:
"could not remain off sick indefinitely and that the question of dismissal, on incapacity grounds would have to be addressed if the (Appellant's) circumstances did not change."
The Employment Tribunal found that:
"the (Appellant) raised the possibility of ill-health retirement, but insisted that a proposal or suggestion that he take early retirement must come from the Respondents. Mr Bagnall and Mr Withers were taken aback and adjourned the meeting to consider the matter. When the meeting resumed, Mr Bagnall made it clear that the Respondents regarded early retirement as a satisfactory solution and were prepared to initiate an application, provided that the (Appellant) was clear that he wished to follow the application through. The (Appellant) stated that he did and the meeting ended amicably."
The Employment Tribunal then found, effectively, that the administrative steps were taken and that employment ended on 2 August 1999.[7]As to the issue as to whether or not there was a dismissal, the Employment Tribunal found as follows:
"(1) ……This presents very little difficulty. We are quite satisfied that the (Appellant) was not dismissed. At the meeting on 12 May 1999 the Respondents went no further than to make the legitimate point that the question of dismissal on the grounds of ill-health would have to be addressed if the (Appellant's) circumstances did not change. Nothing in the Respondents' behaviour after 12 May constituted or gave rise to a dismissal, whether constructive or direct. Since there was no dismissal, the claims for wrongful and unfair dismissal necessarily fail."
Miss Gallafent submits that there is an arguable point of law, in relation to the claim for wrongful dismissal. She says that there is an argument that whilst there may not have been a dismissal, there is a claim in contract, arguably, for failing to follow a procedure which would have resulted in notice pay being paid on any termination. In other words, she submits that the Employment Tribunal were in error in concluding that a finding as to whether or not there was a dismissal, was a necessary pre-condition to a claim for breach of contract.[8]The Originating Application in relation to wrongful dismissal states:
" I was an employee of Shaw Homes H. Ass Ltd till the 2 nd August 1999 when I was dismissed on ill-health without notice."
And then he claims an entitlement to three month's notice.[9]The Employment Tribunal, in their extended reasons, dealt with the question of wrongful dismissal as with the claim for breach of contract, and they found that there was no dismissal. It is suggested by Miss Gallafent that there is a lacuna in the decision of the Employment Tribunal, in that they failed to ask themselves whether termination was in accordance with the contract, and she points out that by a letter dated 9 August 1999, which is the notice of the Respondents to the Appellant, that his ill-health retirement application has been accepted. The retirement date is stated to be 2 August 1999.[10]Miss Gallefant says that there is no finding as to the terms which applied to that termination, and that it is not clear that the Employment Tribunal found on what basis it was purported that the contract was terminated. She suggests that there was an argument that the Appellant should have been given notice of the termination of his employment in line with statutory rights and the clause of his contract set out at page 27 of our bundle. That provides:
"MINIMUM PERIODS OF NOTICE (from the employer)"
And she suggests that the Employment Tribunal failed to consider whether the termination was in accordance with the contract.[11]It is clear to us that the claim for wrongful dismissal before the Employment Tribunal was for failing to give notice upon dismissal. One, it seems to us, can perhaps lose track of the principles if one employs the passive tense in considering a termination. The issue must always be as to who brings about the termination. It may be that there could have been some argument as to whether or not the process, by which the Appellant's application for ill-health retirement brought about, in breach of his contractual rights, the ending of his employment in those circumstances. However, it seems to us that there is no indication that that was an issue raised before the Employment Tribunal. Furthermore, although it is true that the notification was by means of a letter which backdated the formal ending for calculation purposes, there is really no evidence that we can discern upon which such a claim, except in pure theory, could reasonably be mounted.[12]In those circumstances, and mindful of the fact that the Employment Appeal Tribunal does not consider issues which have not been canvassed before the Employment Tribunal, we have come to the conclusion that there is no arguable point of law arising in the wrongful dismissal claim which merits consideration in full by the Employment Appeal Tribunal.[13]We come now to the claim for constructive dismissal. In his statement of case at page 23 of our bundle under the heading of "Unfair Dismissal" in an attachment which went with his Originating Application, the Appellant set out his proposition that he was on sick leave due to stress, caused by the:
"cumulative effect of a number of detrimental incidents at work including but not limited to the following examples"
And he then refers to the meeting on 12 May and continues:
"The Applicant considers that he was forced by the Respondent to accept retirement on ill-health grounds as otherwise it was made clear that he would be dismissed."
It was a case of, it seems on the face of it, "Resign or be sacked" with the word "forced" arguably referring, not only to the meeting of 12 May, but the incidents which had precipitated the Appellant's illness, as his case then stood.[14]In the bundle before us there is a document headed "Statement of facts whether the applicant was dismissed". We have been told that this was before the Employment Tribunal. We are a little puzzled by that. In our index it comes under the heading "Further and Better Particulars dated 22 July 2000"; it follows a letter of that date, but it is right to say that in that letter, the Appellant says:
"I provided to the Tribunal statement of evidences (which is enclosed herewith)………."
For the purpose of this appeal, we treat that document as having been before the Tribunal at the time that they considered the issues in the case, and there are clearly set out a number of allegations, including his suspension and a number of complaints as to the background of his employment; all fairly serious, on the face of it.[15]We turn now to the approach of the Employment Tribunal in the extended reasons and we recognise at the outset that the Employment Tribunal did not refer in specific terms to those matters. They set out the issues at paragraph 5:
"5 The question of whether the (Appellant) was dismissed arises in somewhat unusual circumstances in that he accepts that his employment ended when his application for early retirement was accepted, but asserts that he was in effect forced into retirement by a threat on the part of the Respondents that otherwise he would be dismissed;"
And that seems to encapsulate the way in which the Employment Tribunal understood the case was being put before them after conducting the hearing which they conducted. It is true that the Appellant was appearing without representation, but that is how the issues were set out to be.[16]Then the Employment Tribunal dealt with the facts, including a considerable amount about the issues relating to the contract claims, which are not part of this appeal, and indicating, for instance, in paragraph 7.(4) that the Appellant was suspended, so as not to give him the opportunity to work overtime, whilst also saying that it was for reasons which it was not necessary for them to investigate.[17]The Employment Tribunal then turned to the findings of fact headed "Dismissal". They start by making the finding that:
"It is common ground that the medical evidence obtained by the Respondents ….recorded the fact that the (Appellant) considered the cause of his condition to lie in his problems at work."
So, it seems to us, that the Employment Tribunal were alive to the background matters which were being placed before them, as background historically but, of course, part of the Appellant's case as to why he says that he left.[18]The Employment Tribunal deal with the meeting of 12 May to which we have already referred. They then in sub-paragraph 7(12) say:
"Following the meeting an application was "duly" made"
And they then go on to find: "it is common ground that the (Appellant's) employment ended on 2 August 1999" which harks back to the question of wrongful dismissal and indicates what seems to us to be the absence of any affirmative evidence before the Tribunal that there may have been a breach of contract in the approach to termination.[19]However, to return to the question of constructive dismissal, in paragraph 8 the Employment Tribunal give an opinion as to their overall impression as to the witnesses they had heard, and they describe the Appellant as someone who had become obsessed by his many disputes with his former employers, such as to lead to an absence of detachment or objectivity. Of course, a person can be rendered into that state by unfair behaviour on the part of his employers, just as much as fair behaviour, and that does not, of course, provide an insight into the quality of those disputes, or their cause.[20]But the Employment Tribunal then go on in their conclusions to state that the issue of dismissal presented very little difficulty, and in the passage I have already quoted they said:
"At the meeting on 12 May 1999 the Respondents went no further than to make the legitimate point that the question of dismissal on the grounds of ill-health would have to be addressed if the (Appellant's) circumstances did not change."
And the Employment Tribunal had before them a letter, perhaps self-serving, 2 days after the meeting, from the Respondents recording the position.[21]It is suggested by Miss Gallafent that there was also an issue before the Tribunal, not only of a straight question as to whether that meeting constituted a dismissal in that it was effectively taken as "resign or be sacked", but also as to whether what happened at that meeting was effectively the last straw in cumulative conduct, which had first driven the Appellant into sickness, and then driven him to offer ill-health retirement when faced with the proposition that his sickness, the fault of the Respondents as he would have it, was likely to lead in the future to his dismissal. The Tribunal went on to say:
"Nothing in the Respondents' behaviour after 12 May constituted or gave rise to a dismissal" and Miss Gallafent suggests that that means that the Employment Tribunal had failed to look at what happened before. We disagree. On the face of the decision, although there was no specific addressing of the complaints that the Appellant had about the conduct of the Respondents, we read the reference to behaviour after 12 May as meaning, by implication, "
Well we have considered behaviour before 12 May and we go on now to consider what happened afterwards". And the heart of the decision, it seems to us, lies in the phrase:
"The Respondents went no further than to make the legitimate point"
And the inevitable conclusion from that is that they could not, and did not, categorise that as even a last straw. They did not accept that there was anything that occurred at that meeting which could be laid at the door of the Respondents, however trivial. And that being the case, it must be, it seems to us on the finding of the Tribunal, that there was no causative link between such problems as the Appellant had addressed earlier, and his offer of ill-health retirement, faced as he was with a continuing, sustained period of absence.[22]It is always difficult to reconstruct a hearing before an Employment Tribunal, and the Employment Appeal Tribunal would not be astute to pick over ever single word, and construe it precisely, or assume, because matters are not specifically addressed that they were not properly taken into account. Nonetheless whilst recognising the disappointment for a party, who has not had the opportunity of an impartial investigation of substantive complaints, it seems to us that the Employment Tribunal did address the issues which were placed before it, and we have come to the conclusion that there is no arguable point of law which arises from their decision, so that the appeal falls to be dismissed at this stage.