MR T STOBBS v B COOKSON LIMITED [2001] UKEAT 560_01_0910

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 560_01_0910Case No Appeal No. EAT/560/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR T STOBBSAPPELLANTB COOKSON LIMITEDRESPONDENT
Before
Mr Justice Wall Mr A E R Manners Mr P M SmithDate 9 October 2001
[1]APPEARANCES For the Appellant MR JAMES BOYD (of Counsel) Instructed by: Messrs Backhouse Jones Solicitors 23 Wellington Street Blackburn Lancashire BB1 8DE MR JUSTICE WALL This is the preliminary hearing of an appeal by Mr Tony Stobbs against the reserved decision of the Liverpool Employment Tribunal, following a hearing on 17 and 18 January of this year, in which the Tribunal found by a majority that the Appellant was not dismissed and that his claim of unfair dismissal failed. The Tribunal also found unanimously that the Appellant was not entitled to any bonuses.[2]The Appellant's case is that he was forced to resign from his job as Transport Manager and Warehouse Supervisor because his employer failed to take any notice of illegalities being committed by the company in relation to driving hours and tachograph offences. The Respondent denied failing to take its responsibilities seriously, and in paragraph 17 of the Notice of Appearance stated this:
"At the meeting on the 11 th April, 2000 the Applicant [the Appellant] confirmed he wanted to leave on good terms and that the reason he was leaving was to operate his own Nursery business, as he had purchased an 8 acre site with greenhouses near his home in Heath Charnock, Lancashire."
And in paragraph 26 of the same Appearance, the Respondent stated:
"The Applicant terminated his Contract of Employment in order to run his own Nursery business."
[3]The Respondent's case, accordingly, was that there was no fundamental breach of contract. The Notice of Appeal mounts a head-on attack on the Tribunal's finding of facts, and in particular, the finding which appears in the Tribunal's Reasons at paragraph 28. This was that:- "In short, the majority view was that Mr Stobbs' resignation had not come about as a consequence of the fundamental breach of contract by the Company but rather because he wished to join his father's business. That conclusion, in the view of the majority, was borne out by the chronology of events." And shortly before that, in paragraph 25, the Tribunal had found in terms that:
"Mr Stobbs' father owns a plant nursery. It was to that business that Mr Stobbs intended to go when he tendered his notice."
[4]As the extract I have just read makes clear, the majority view of the Tribunal was that there had, indeed, been a fundamental breach of contract. That appears in paragraphs 19 and 20 of the Reasons:
"19. The majority view was that Mr Stobbs did, indeed, make genuine complaints in relation to these matters and furthermore that the Company treated them in a wholly cavalier fashion. The conclusion of the majority was that Mr Stobbs was perfectly entitled to believe that the Company was not taking his complaints seriously and was not intending to address them. Clearly, given his position as the CPC holder he was also entitled to regard this as a serious act in relation to him. 20. Put shortly, the majority view was that there had been a fundamental breach of contract by the Company in their failure to properly address the concerns raised by Mr Stobbs in relation to these matters."
[5]In addition to the suggestion in the Reasons that Mr Stobbs had left because he wished to work in his father's business, there is also a reference in the Reasons to a discussion between the Appellant and one of the directors of the company to the effect that the Appellant feared that the director in question wished to take his job, and that this was a factor in his leaving the company. In this respect, the Tribunal made a finding of fact against the Appellant and determined in effect that that conversation had not taken place, and that accordingly, it could not have been a factor in Mr Stobbs' decision, although if it was, it was not one which had any substance.[6]But the fundamental attack, as I indicated, on the Reasons is that there was no evidence of any kind before the Tribunal that Mr Stobbs' father owned a plant nursery, and that therefore the Decision of the Tribunal, that Mr Stobbs had not left because of the fundamental breach of contract, was unsustainable and therefore represents an error of law. In our judgment, that is plainly arguable and it is a point to be considered by the Employment Appeal Tribunal at a full hearing. I do not think for the purposes of this judgment, it is necessary for me to traverse the evidence, such as we have it, in relation to the factual issues involved. The suggestion that Mr Stobbs had left to run a nursery did indeed appear in the witness statements of Mr Craig Cookson, one of the employees of the Respondent company, but when cross-examined about it, Mr Cookson's evidence would appear to have been at very best, equivocal.[7]There are other references scattered throughout the documentation, including the notes of the legal representative attending on the Appellant's behalf, in which there are spasmodic references to the question of a nursery, but at no point is there any substantive reference to Mr Stobbs' senior owning a nursery, or indeed of Mr Stobbs leaving for that purpose. Clearly, if there was no basis upon which such a finding could be made, the Decision of the Tribunal would be flawed, as we have said this raises an arguable point of law which needs to be determined at a full hearing, with both sides represented.[8]There are two other outstanding issues in the case. One relates to holiday pay. That, fortunately, has been settled between the parties The other is a suggestion by Mr Stobbs that he was due a bonus from his employers, orally promised to him. Once again, that is a matter which is not dealt with by the Tribunal, although it is a matter which we think should be dealt with by reference to the Notes of Evidence, prepared by the Chairman.[9]On the question of bonuses, the way it was dealt with by the Tribunal was to accept the evidence of the company. The argument on this point is that since the evidence of Craig Cookson in particular, was subject to cross-examination and appeared to be unreliable, certainly as to departing from his witness statement in relation to the question of the nursery, it was perverse of the Tribunal to reject the Appellant's evidence on this particular point. We do not regard this as the strongest point in the Appellant's case; however, we do not propose to shut it out, and in those circumstances, we will not limit the appeal any further, now that the issue of the holiday pay had been agreed. The appeal can therefore go forward on a full basis. We take the view that the Chairman's Notes of the evidence on a number of issues are necessary for the proper resolution of the appeal.[10]On the question as to why Mr Stobbs left his employer's employment, including of course whether he was fearful of his job being taken over, or whether it was because of his wish to run a nursery business, all that evidence, it seems to us, is necessary and we direct that the Chairman's Notes in relation to it, including of course, any cross-examination as to it be produced.[11]In relation to the issue of the bonus, once again, we think it appropriate for the evidence and cross-examination in relation to that issue to be bespoken, and we order its production. The point was raised with us as to whether or not it would be appropriate for Mr Stobbs senior to swear an affidavit, or make a statement denying his ownership of a nursery. We do not believe it appropriate - certainly at this stage - for that to be done, and we invited Counsel to reconsider the Appellant's position once he had received the Notes of Evidence from the Chairman. The appeal will therefore go forward on that basis. Directions: half a day, Category B, Skeleton Arguments fourteen days.