MR N G WILSON v UNIVERSITY OF BRIGHTON [2001] UKEAT 0637_00_0910

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0637_00_0910Case No Appeal No. EAT/0637/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR N G WILSONAPPELLANTUNIVERSITY OF BRIGHTONRESPONDENT
Before
Mr Justice LindsayDate 9 October 2001
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondent MR JAMES TAYLER (of Counsel) Messrs Steel Raymond Solicitors Richmond Point 32 Richmond Hill Bournemouth BH2 6LR THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) We have before us by way of a Full Hearing the appeal of Mr N G Wilson in the matter N G Wilson v University of Brighton . Mr Wilson does not attend today. He has put in a written argument and we understand has a friend here as an observer. The University appears by Mr James Tayler.[2]Mr Wilson, a senior lecturer, put in an IT1 claiming constructive dismissal. The University resisted the claim. The Employment Tribunal heard the case over some three days between December 1999 and March 2000. On 15 May 2000 the Tribunal's decision was sent to the parties. It was the decision of the Employment Tribunal at Brighton, sitting under the chairmanship of Mr M J Davey. The reserved unanimous decision was that the Applicant, Mr Wilson, was not unfairly dismissed. His application was therefore dismissed.[3]Mr Wilson lodged a Notice of Appeal and in the ordinary way it came as a Preliminary Hearing before the Employment Appeal Tribunal on 20 November 2000 before a Tribunal sitting under Mr Justice Bell. Only one narrow point was permitted by that Preliminary Hearing to come forward to a Full Hearing, on the basis of only that one narrow point disclosing any arguable error of law in the Employment Tribunal's reasoning.[4]That Preliminary Hearing decision by the Employment Appeal Tribunal has not been appealed and it must therefore be taken as concluding what is permitted to come forward to us by way of a Full Hearing. We need to explain what that limited point is. It is this. There had been substantial non-renewals by students of their attendance at an Institute of Personnel and Development Course (an IPD course) which had been led by Mr Wilson.[5]One needs to set the scene with some quotations from the Tribunal's decision; thus in paragraph 10 of the Extended Reasons the Tribunal says:
"In September 1998, Dr Berry as the new Head of School wrote to 19 students who had completed year one of the IPD Course inviting them to a second year induction session. No students came. Ms Ridley investigated the position and it was found that 16 out of the 19 students would not be returning. Not surprisingly, Dr Berry was alarmed and felt that an investigation would be appropriate."
A little later, the Tribunal held:
"The Applicant was not asked to attend the Faculty Boards, but was of course aware that an investigation was in hand."
In their paragraph 12 they say this:
"The investigation having been completed, a draft paper was circulated and the Applicant had the opportunity to comment. There was an informal discussion on 10 December and on 17 December the Applicant provided Dr Berry with a seven-page commentary upon the investigation. At no stage in these observations does the Applicant complain, as he does to the Tribunal, that the conduct of the investigation amounted to part of an orchestrated campaign to dispense with his services, nor does he say, as he did in evidence, that he thought that the report was outrageous."
A little later in their paragraph 13 they say:
"As indicated above, the Tribunal have sympathy with the views of Dr Celia Stanworth upon the proper way to conduct an investigation, but the striking feature of Mr Wilson's position is that he made no complaint, either orally or in writing, about his concerns."
[6]Mr Wilson complained in his IT1 and in evidence given, in very strong terms, that the manner in which the investigation into the IPD 'fallout', as it was called, was conducted, that it represented a serious and fundamental breach of contract (that seems to have been his case in this area) such as, with other alleged shortcomings, entitled him to treat himself as constructively dismissed. As we have seen from that quotation from paragraph 12, the nature of his complaint relative to the IPD investigation was that there was an orchestrated campaign to dispense with his services of which an outrageous report was but a part.

Mr Justice Bell in the decision at the Preliminary Hearing said:

"It is sufficient to say that Mr Wilson's claim that the University had been in fundamental breach of trust and confidence condition in his contract of employment was based upon three specific matters: firstly, his removal from the post of Course Leader in May 1998: secondly, the investigation of withdrawals from the Institute of Personnel and Development ('IPD') Course, and, thirdly, the manner in which an application made by Mr Wilson for leave to complete his Ph.D. thesis was handled."
Later, Mr

Justice Bell says:

"What Miss Heal [she was appearing for Mr Wilson under the ELAAS system on the Preliminary Hearing] however has focussed our minds upon is what she says is the complete inaccuracy of the statement which appears in more than one place, that Mr Wilson made no complaint about the way the investigation was carried out into the fallout on the IPD Course. She has referred us to Appendix B of written submissions made by Mr Wilson where, between pages 14 and 16 of our bundle, Mr Wilson refers to a number of memoranda which were apparently in the bundle before the Employment Tribunal, and where, if the matters in the memoranda are accurately related, it is clear that Mr Wilson did make complaints about the investigation into the fallout of the IPD Course, before or at the time of his resignation. It seems to us that it is arguable, and we put it no higher than that, that in reaching the conclusions which it did leading up to its ultimate decision, the Employment Tribunal had overlooked the matters in the memoranda to which we have just referred."
Then in paragraph 11:
"On that narrow final point, we consider that the consideration of this Tribunal is merited at a hearing between both parties. On that narrow point we allow this appeal to proceed."
So that is the way in which the single narrow point comes before us.[8]The question thus arises. Was there uncontested evidence that Mr Wilson did make complaints of the kind that he alleged, namely, about an orchestrated campaign and an outrageous report about the investigation into the fallout from the IPD Course at or before his resignation, which was on 4 February 1999. If he had not, then that would be a factor in determining whether or not there had been a fundamental breach of contract and, perhaps more particularly, whether or not he had felt constrained to resign on account of it. Mr Wilson's written arguments before us go beyond this question but he is to be bound by the limitation imposed by the Preliminary Hearing. He has to show that he did make complaints of the kind which he sought to rely upon at the Employment Tribunal as to the IPD fallout investigation, the only issue which has been allowed to go forward.[9]The Employment Tribunal had written evidence from Dr Bareham (I am looking now at page 109 in our present bundle) where Dr Bareham says:
"The important aspects of the quality audit into the IPD course are as follows:- (a) the purpose of the series of investigations and discussions between October 1998 and January 1999 was to determine why the conventional monitoring and evaluation process had not detected student concerns before they left. (b) the purpose of the investigation was made obvious at school and faculty meetings throughout the period of the investigation. The minutes of these meetings are public documents within the University. (c) Mr Wilson provided information to help with the investigation and at no time objected to me about the purpose or nature of the investigation. He was first involved in October 1998 and had opportunities to raise his concerns via his head of school, the management structure and the committee structure. (d) I was at pains to ensure that the quality audit focused on the quality issues arising from the problem and not consideration of individual members of staff or performance issues relating to the delivery of the course."
There is Dr Bareham giving evidence that there was no objection from Mr Wilson at the time about the purpose or the nature of the investigation.[10]We also have the Chairman's notes of evidence which throw some light – not always clear – but some light, on the issue. Thus, (at page 77 of the bundle) the Chairman's notes of evidence in relation to the cross-examination of Mr Wilson say this:
"I made no mention of my appalling treatment – I am responding in the memorandum of the audit and I am not going to mix issues. I am writing with my comments on the audit." and at page 78: "
I do accept that 16 out of 19 students not returning is alarming, and that there were no prior warnings" and at page 81 "I did not institute a complain under the Grievance Procedure …." He then explains why that was. On page 85 - which by now has moved on to the evidence of Dr Bareham:
"After the meeting, you gave your views and further views on Sue Ridley. I accept in retrospect you felt humiliated and you have a point of view. I apologise if you felt that way. There may well have been a conversation in terms put by you, but I felt you had ample opportunity to put your views and I felt I had all I needed. I felt we had a reasonable discussion about why you felt there had been a high withdrawal rate, you were to see the draft report."
There is nothing, I think, in the evidence of Dr Berry. So, not a very clear picture, but nothing that would seem to suggest there was oral evidence from Mr Wilson, or oral evidence from the University side, accepting that there had been from Mr Wilson complaints as to an outrageous report or some orchestrated campaign.[11]The Tribunal is, of course, entitled to select which evidence it prefers. If there is any evidence capable of supporting a given finding, then, as to that finding, there is no error of law of the kind that consists of an absence of supporting evidence. It matters not that some other Employment Tribunal or the Employment Appeal Tribunal would not have drawn that conclusion from that evidence. The Employment Tribunal in question is entitled to select which evidence it prefers.[12]Mr Wilson's argument itself accepts that there was a denial by Dr Bareham of complaint as to the IPD investigation at or before resignation but he says that the documentation taken as a whole proves otherwise. Mr Tayler, for the University, accepts that the documentation to which Mr Wilson refers was in fact in bundles that were available to, and perhaps had been read by, the Tribunal, but that the documents were being used in Mr Wilson's argument, now, on appeal, in a quite different way to the way in which they were used, or failed to be used, below.[13]If there was documentation as to indications of an outrageous report or an orchestrated campaign then, given that in his written argument Mr Wilson accepts that Dr Bareham had denied that Mr Wilson had complained at the time, those documents would need to have been put to Dr Bareham. We do not find that in the cross-examination notes which we have. There is no sign of any such document being put to Dr Bareham. In any event we have seen Mr Wilson's memoranda of 6 January 1999, of 7 January 1999 and 4 February 1999, the very day of the resignation being handed in, although it was in fact dated a few days earlier. It is true that mild issues are raised by way of comment or perhaps complaint but there is nothing there to indicate that Mr Wilson was at the time complaining of an outrageous report or an orchestrated campaign to be rid of him, or anything else that suggests a consciousness of there being an existing fundamental breach of contract or even a consciousness of some impending fundamental breach of contract.[14]Mr Tayler has drawn our attention (to what is at page 34 in our bundle) to where in his written submissions Mr Wilson says:
"I notified my concerns about their conduct of the enquiry/audit to the Director in four items of correspondence whilst still in the service of the University on respectively the: 8 Feb 1999 3 March 1999 17 March 1999 25 March 1999"
The obvious comment is – as Mr Tayler makes it – that all those dates are after the resignation on 4 February 1999. The letter of resignation has also been drawn to our attention which makes no reference to complaint as to the investigation into the IPD fallout. In his skeleton argument at paragraph 7, Mr Tayler argues as follows:
"The Employment Tribunal was considering these complaints when it went on at paragraph 13; P42 to state "that the striking feature of Mr Wilson's position is that he made no complaint, either orally or in writing about his concerns." and at paragraph 19; P44 where it stated "
The Applicant made no complaint until after his resignation." The Employment Tribunal was correct to reach this conclusion as nothing in the documents now put forward by the Appellant could amount to a complaint about the issues raised at paragraph 12 [which was the paragraph that mentioned the outrageous report and the orchestrated campaign] " We accept that submission. Moreover, the Tribunal found no breach of contract, and so the issue of whether or not too much weight had been given to whether or not Mr Wilson had complained before resignation could only at best be a somewhat peripheral issue. It was a necessary part of Mr Wilson's case that there had been a fundamental breach of contract by the University such as entitled him to regard himself as constructively dismissed. Obviously a part of that is that there needs to be a finding of such a breach of contract. No such breach was found.[15]All in all we are quite unable to say that the Employment Tribunal erred in law in attributing some weight (and, of course, how much weight was a matter for them) to the fact that the serious allegations on which Mr Wilson was relying - namely, allegations as to an orchestrated campaign to be rid of him, part of which was an outrageous report - did not appear to have been made by him at the time. It was a factor on which the Tribunal could put such weight as it saw fit. We, in other words, have not been able to find error of law in relation to the sole limited issue which the Preliminary Hearing allowed to come forward to us. That being the case we must dismiss the appeal.