STANLEY COLE (WAINFLEET) LTD v MRS J F SHERIDAN [2002] UKEAT 0824_01_1807

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0824_01_1807Case No Appeal No. EAT/0824/01 & EAT/1265/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
STANLEY COLE (WAINFLEET) LTDAPPELLANTMRS J F SHERIDANRESPONDENT
Before
Mr Recorder LangstaffDate 18 July 2002
[1]APPEARANCES For the Appellant DR M COHEN (Director) For the Respondent MR M O'CONNOR (Representative) Instructed by: First Assist Group Ltd Marshall's Court Marshall's Road Sutton Surrey SM1 4DU MR RECORDER LANGSTAFF QC This appeal joins two separate appeals. They are both from decisions of an Employment Tribunal in Boston. By reasons dated 15 June 2001 that Tribunal upheld Mrs Sheridan's complaints that she had been unfairly dismissed from employment with the Respondent. By a decision promulgated on 1 November 2001 the same Tribunal rejected an application made by the Appellant for a review.[2]The first appeal, which we may term the 'merits appeal', raises issues as to the correct approach to determining a claim of constructive dismissal and whether the imposition of a final written warning may be capable of mounting to repudiatory conduct on the part of the employer.[3]The second appeal raises issues of the correct approach by an Employment Tribunal to authorities and the test which it is appropriate to apply to an authority which the Tribunal wishes to rely upon in reaching its decision, but which it has not invited the parties to address. The Facts on the 'Merits Appeal'[4]Mrs Sheridan had been an employee for nearly 5 years when she resigned on 28 July 2000. She had had no disciplinary record, in the sense that she had never been subject to any verbal warning or written warning in relation to any conduct of any kind.[5]On 14 April 2000 incidents occurred which the Tribunal summarised at paragraph 6(ii) of its decision in these terms: 6 (ii) "This was a relatively minor incident on the facts, found by the Respondent, involving an altercation and an unauthorised absence from work of about an hour allowing for time permitted for lunch. That was the only conduct taken into account in reaching the decision to impose the final written warning [upon Mrs Sheridan]." Those few words express the Tribunal's view of facts which they found in paragraph 5.[6]A Mr Holyer had made a request of Mr Sheridan to which, after initial hesitation, she responded. It appears that the request must have been repeated, why, it is unclear, but the response was repeated as well.[7]The discussion became heated. Mr Holyer raised his voice and leant over the desk at which Mrs Sheridan was sitting. She felt threatened and sick and she left the office in some distress. She returned after one and a half hours, which the Tribunal found amounted to an absence of about an hour from work, because it was lunch time, and spoke to her line manager. Her line manager told her she should go home, no doubt in response to her evident distress.[8]The employer took disciplinary action against Mrs Sheridan. The reason was that she had not sought permission before absenting herself from the workplace. We think it a reasonable inference, though it is not expressly drawn by the Employment Tribunal, that, had Mrs Sheridan approached Mr Leigh before leaving the workplace in the first instance, she would have been granted permission to leave since that is exactly what happened when she returned still in some distress.[9]However, the employer had information that she, Mrs Sheridan, felt that Mr Holyer's language was abusive. The Employment Tribunal found that not to be the case. Accordingly, so Dr Cohen submits on behalf of the employer, she had made a false accusation against Mr Holyer. She was not, in terms, disciplined for this but it is part of the picture.[10]Secondly, she was advised, by a Mrs Shelley, not to leave the workplace in response to what had happened but did not accept that advice.[11]The Tribunal found that an investigatory meeting took place on 27 April at the home of Mrs Sheridan. She was sick and had been sick since the incident which we have described. She was then invited to attend a disciplinary meeting on 17 May and did so.[12]After that meeting, and in consequence of it, the employer wrote saying:
"The allegation against you was that you unreasonably left your place of work without permission on 14 April 2000 and despite being advised against it, thereby committing and act of gross misconduct which could result in summary dismissal. The only mitigating factor which I have considered is that you badly misjudged the situation and I therefore decided not to dismiss you in this instance but to issue a final written warning for misconduct."
[13]Mrs Sheridan appealed. That appeal was heard on 16 June. The appeal was rejected. The rejection was confirmed by letter dated 21 June. It was a month later that Mrs Sheridan resigned.[14]The Tribunal found that the reason for her resignation was, in essence, the imposition of the final written warning which she saw as unfair, particularly given the failure to discipline Mr Holyer.[15]Against that background of fact, the Employment Tribunal had to address the issues posed before it. The Tribunal Decision[16]The Tribunal asked whether or not the employee, Mrs Sheridan, resigned. For her to succeed upon an application for unfair dismissal she had to show first that she had been dismissed.[17]Section 95 (1) (c) states that an employee is dismissed by her employer if: 95 (1) (c) "the employee terminates the contract under which she is employed, with or without notice, in circumstances in which she is entitled to terminate it without notice, by reason of the employer's conduct."[18]Accordingly, the focus of their enquiry was, and had to be, upon whether or not Mrs Sheridan was entitled to terminate her contract of employment without notice, as she did by reason of her employer's conduct toward her.[19]The Tribunal concluded, first, that the "relatively minor incident", as they described it, did not justify the response of a final written warning by way of sanction. They concluded that the imposition of such a disproportionate penalty was a breach, either of an implied term of trust and confidence, or an implied term that the disciplinary procedure would be used fairly and without oppression.[20]Having determined that it was a breach of contract they then evaluated whether or not it was such a breach as to justify Mrs Sheridan in resigning. They expressed their view tersely in saying that they found a significant breach going to the root of the contract.[21]The Tribunal held, as we have recounted, that she resigned because of the imposition of the final written warning. They then examined the question of whether she had waited so long before resigning that she was no longer entitled to do so. They explained that in these words: 6 (iv) "We have been somewhat more exercised by the delay between the notification of the confirmation of the final written warning and the letter of resignation. Such a delay would normally not be acceptable but in this case we find that by reason of Mrs Sheridan's illness which is supported by medical certificates and her evidence that she took time to take advice in those particular circumstances we find that her resignation was carried out in time."[22]Then the Tribunal, recognising that a constructive dismissal may not necessarily be unfair, examined submissions made to it by the employer, that it was, in any event, a fair dismissal. They rejected those submissions for reasons to which we shall come subsequently. The Facts in Relation to the Review Hearing[23]Because the merits hearing and the review hearing are linked factually we shall deal with the review hearing and the decision in relation to it at this stage of our judgment, before turning to the submissions which have been made before us.[24]At the merits hearing the employer had had the advantage of being represented by Dr Cohen, who has appeared before us. After the hearing he investigated when it was that Mrs Sheridan had applied for a post at Butlins, which she began to fulfil from 2 August.[25]He sought to put before the Tribunal, on review, evidence that Mrs Sheridan, though purporting to be at home ill, had in fact not only applied for a job but had, he said, been for interview with Butlins, during the currency of her employment with the Appellant.[26]Had he known this at the trial of the merits he would have cross-examined Mrs Sheridan with a view to establishing that the reason for her resignation, and the reason for the delay in doing so, was that she had been attempting to find other employment and that she left, not because of the conduct of the employer toward her, but simply because she had found alternative work.[27]The review application was, of course, made, as it had to be, under Rule 13 of the Employment Tribunal Rules of Procedure 2001 . That provides, so far as material, as follows: 13 (1) "…a Tribunal shall have power…to review any decision on the grounds that – (d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing; or (e) the interests of justice require such a review."[28]What Dr Cohen argued was that there was new material which could not have been reasonably known of or foreseen at the time of the hearing. He went on to explain that, although within the bundle of documents which had been available at the merits hearing there was an application from Butlins for a reference from the Appellant and a response by the Appellant to Butlins on a date only a matter of days after the letter of resignation of the Respondent, and although it might have been added that the Skeleton Argument of the employee before the final determination of the Tribunal in the merits hearing had referred to the reference in express terms, nonetheless he had not focused upon those matters as suggesting that, in any way, the date of the interview might have predated the resignation and, similarly, that the date of any job offer might have predated the date of resignation.[29]The Tribunal set out some law in its decision, to which we shall come, but what happened procedurally is best described in the affidavit of Dr Cohen which has not been contradicted by the chair of the Tribunal.[30]He deposes that the submissions from the parties were brief and did not involve references to case law. The Tribunal did not raise any issues with the parties and never invited any comments or submissions on any case law. It retired to consider its decision around 11.15. It returned around 11.45. The Chairman dictated the decision into a tape recorder in the presence of the parties. At that stage he had photocopies of two cases with him. He had highlighted certain passages and read extracts from them during the course of the decision. Those cases were the General Council of British Shipping v Deria & Others [1985] ICR 198 and Lindsay v Ironsides Ray & Vials [1994] IRLR 318.[31]It is therefore common ground on this appeal, as a matter of fact, that the Tribunal in reaching its decision referred expressly to two cases, neither of which had been mentioned to the parties beforehand and in respect of neither of which had they invited submissions. The Tribunal Decision on the Review Hearing[32]The Tribunal dealt with the application made to it under Rule 13 (1) (d) and (e). In respect of 13 (1) (d) the Tribunal determined that the evidence sought to be introduced was not new. They noted that the evidence, that is the fact that Mrs Sheridan was seeking work, was available at the date of the hearings: documents 70 & 71 of the original bundle were available at the hearing, though in fact never referred to. They are the request for a reference and the reply.[33]In any event, even if that had not been right, the evidence was, they said, "clearly foreseeable", so it should have been known of, and it was reasonably foreseeable that it might exist at the date of the hearings. They therefore rejected the application under 13 (1) (d). We should add that, as will appear later, no appeal is raised against that, although Dr Cohen was unhappy that that decision was reached.[34]However, so far as 13 (1) (e) is concerned, the decision recites that neither party had referred to authority. It indicated that the Tribunal felt that it must be guided by the case of General Council of British Shipping v Deria & Others .[35]That case explored the relationship between 13 (1) (e) and 13 (1) (d). In essence, it considered the obvious point that a broad category, such as contained in 13 (1) (e), would not normally cover a separate and free-standing ground of appeal in circumstances which would come within 13 (1) (d) where the requirements are specific. Thus, one could not simply make an appeal to the interests of justice requiring the admission of new evidence without at least considering, when deciding any application to which 13 (1) (e) might apply, whether the requirements of 13 (1) (d) had also been fulfilled.[36]In Deria the Tribunal noted that there would have to be some circumstance or mitigating factor which related to the failure to bring a matter relied upon within (what was then) Rule 10 (1) (d), now 13 (1) (d)[37]When the Tribunal then asked, as it would have to do if that guidance were accepted, what the circumstance or mitigating factor was, which would require them to grant a review under paragraph (e), they dealt with it in two stages.[38]First, they reviewed Dr Cohen's submissions. It appeared to the Tribunal that Dr Cohen was saying that because he was not legally qualified the Tribunal should not expect a non-legally represented litigant to act as a forensic expert.[39]Then, the Tribunal made reference to the second authority which had not been discussed before it: 6 "However again, unfortunately for Dr Cohen, there is again authority on the point in question and we refer to the case of Lindsay v Ironsides Ray and Vials [1994] IRLR 318. In that case the EAT held that an Industrial Tribunal had erred in law in holding that it had jurisdiction to grant a review of its decision because the employee's case had not been properly argued at the Preliminary Hearing as a result of her representative's shortcomings. The EAT went on to conclude that it would not be in the interests of justice for there to be a review on such grounds. They held that even though the interests of justice ground of review is in very wide terms it is a power which must be cautiously exercised. Further they hold that failings of a representative will not generally constitute a ground for review because that would risk encouraging a disappointed Applicant to seek to re-argue his case by blaming his representative for the failure of his claim. Again, we feel that we are bound by the guidance of the EAT in that case. It must, therefore, follow in our view that since Dr Cohen has conceded it was his own shortcoming that led to the existence of Mrs Sheridan's application for employment not being pursued we have no alternative but to refuse the application for review on this ground."[40]It should be noted that the Tribunal expressed themselves as feeling "bound" by the guidance, that they described what followed as that which "must" follow, and that they recorded that they felt they had "no alternative" but to refuse the application for a review.[41]Those words indicate that that this Tribunal relied specifically upon Lindsay v Ironsides as an authority relevant, significant and material to the decision which they had to make. The Grounds of Appeal and the Submissions for the Appellant[42]There may be an element of artificiality in separating the grounds of appeal between those which relate to the merits hearing and those which relate to the review hearing because if the review hearing were to succeed the evidential basis for the merits hearing might be different. But we shall deal with the merits grounds first then proceed to the question of the review.[43]The first ground which is advanced before us is that the Employment Tribunal misdirected itself in disregarding the evidence of the Respondent's previous record of relationship problems with her co-employees, in deciding that the warning imposed by the Appellant amounted to a repudiatory breach of contract.[44]The evidence referred to was documentary, about which questions were asked, which related to matters between Mrs Sheridan and other members of staff predating the events of 14 April. We shall turn to its content in due course.[45]What Mr Cohen submitted to us is best expressed in two propositions which he formulated in argument. The first was that where an employer makes a decision which is objectively repudiatory, according to his own information and the basis on which he purports to make it, nonetheless a Court must evaluate his conduct in doing so against matters which he deliberately did not, but could have, taken into account and these must form part of the Court's objective assessment.[46]The second proposition (advancing the same point), was that in deciding whether there was a breach or not it would be wrong to conclude that the dismissing manager was in breach by exercising the decision on the terms he did, so by restricting himself to the evidence he considered. The Employment Tribunal had to consider objectively all the relevant evidence, including material to which the dismissing manager paid no regard.[47]This follows from a recognition, about which there is no dispute as a proposition of law, that the question whether or not somebody is within section 95 (1) (c) of the Employment Rights Act 1996 has to answered by reference to the law of contract. It is not to be determined by reference simply to what is reasonable: that contention was laid to rest by the Court of Appeal in the case of Western Excavating (E.C.C.) Ltd v Sharp [1978] IRLR 27[48]What Dr Cohen argues is that in the case of Boston Deep Sea Fishing & Ice Company v Ansell [1886] 39 CD, at page 339, the Court of Appeal recognised that an employer was entitled to take into account matters for which he might have dismissed, had he known of them at the time of an actual dismissal, as matters which justified the dismissal in the sense that an employee could no longer maintain an action for wrongful dismissal against his employer in the light of those "new" matters.[49]He argues that that is a contractual principle, that the case establishes that it does not matter whether an employer knew about evidence of breach of contract at the time of dismissal, and goes on to suggest that the Employment Tribunal here was therefore in error in, as he put it in his Skeleton Argument, in "unambiguously disregarding certain important evidence".[50]The evidence which he had in mind were documents No. 3a-7a which include details of the "relationship matters" to which we have already referred in outline. Accordingly, his argument is predicated upon a view that the Tribunal did not take such matters into account.[51]We return, therefore, to cite in full paragraph 6 (ii) of the conclusions of the Employment Tribunal. We have already quoted the first sentence but the paragraph should be seen as a whole: 6 (ii) "This was a relatively minor incident on the facts, found by the Respondent, involving an altercation and an unauthorised absence from work of about an hour allowing for time permitted for lunch. That was the only conduct taken into account in reaching the decision to impose the final written warning. This emerges from the documentary evidence to the disciplinary hearing, the letter from which we have quoted imposing the final written warning and Mr Cole's own evidence. In our view it falls clearly outside the band of reasonable responses having regard also to Mrs Sheridan's record and length of service. The imposition of such a disproportionate penalty is in our view a breach either of an implied term of trust and confidence or an implied term that the disciplinary procedure will be used fairly and without oppression. It is also in our view a significant breach going to the root of the contract therefore entitling Mrs Sheridan to resign."[52]Dr Cohen focuses upon the words in the second sentence. The Tribunal are there recording what they had already found as a fact, namely that when Mr Cole came to make the decision to impose the warning, the only conduct he took into account was that revealed by the facts of the incident of 14 April as they appeared to him. He did not take into account, and indeed deliberately tried to avoid taking into account what he knew in the respect of the relationship matters.[53]His case essentially depends, as a matter of review of the Tribunal's judgment, upon the Tribunal indicating by that phrase descriptive of what Mr Cole had done, that they, the Tribunal, were also not taking into account anything else other than the events of 14 April. However, that argument ignores what the Tribunal went on to say.[54]Having described what had happened, and categorised it as disproportionate (that is the force of the reference to "band of reasonable responses"), they described that it was disproportionate:
"having regard also to Mrs Sheridan's record and length of service"
[55]We see absolutely no reason to exclude from the word "record" the events in relation to relationship which might have emerged from documents 3a-7a. In other words, we regard the Tribunal here as saying that they did indeed take into account every matter which Dr Cohen has urged us they did not.[56]However, even if that were a wrong reading of that which the Tribunal were saying, we do not consider from first principles that there is any force in this ground of appeal. It is misconceived.[57]There was here no dismissal by the employer, save in the sense that the employer's conduct was such that the Tribunal found that Mrs Sheridan was entitled to treat it as relieving her of the obligation to continue to work for them. Yet, what Dr Cohen's argument asserts is that evidence of an employee's breach, if in fact it was a breach, is relevant in determining whether or not the employer's conduct was of such a nature. That only has to be stated for the flaw in the logic to appear.[58]The highest it could be put is that the behaviour of an employee might contextualise the decision of the employer so that the conduct of the employer would not have the repudiatory force which, viewed in isolation, it might otherwise have.[59]That, however, involves a careful step by step analysis of that which it is necessary for a Tribunal to review. The evidence before it was that the employer, through Mr Cole, had reached a decision. The argument was that the decision was not justified upon the grounds upon which it was reached: so unjustified, in fact, as to amount to a repudiatory breach of contract. That question could only be determined by reference to the reasons which Mr Cole actually had. Whether the repudiatory nature, which might at first sight appear from that analysis, could be sustained after reviewing the entirety of the context, would be the next question. That is, whether or not, given the record and length of service of the employee the apparently repudiatory conduct, could indeed properly be so categorised. That is precisely the approach which the Employment Tribunal took.[60]However, thirdly, we cannot leave this particular ground of appeal without reference to the material which is contained in documents 3a-7a. A first blush view of that material might suggest that it might have been relied upon by the employee in supporting her complaint of constructive dismissal, just as it might have been relied upon by the employer to the opposite effect.[61]In greater detail: a letter of 8 April 1998 shows that complaints were made by members of staff about the behaviour of the employee. It appears that the issues raised by that letter were the subject of evidence. The matters were resolved informally. There was nothing in the nature of a verbal warning. There was no formal target set for Mrs Sheridan to meet. There was no formal follow up.[62]The next documents, those from 4a-6a relate not to a complaint about Mrs Sheridan, but to a complaint by her about alleged bullying. The allegation that she made of bullying was to be investigated by her line manager. He said so in a memo of 29 September 1999. We are told that there was no documentary evidence or material before the Tribunal to indicate that that investigation had in fact occurred, and Dr Cohen accepts that the employee might have been entitled to have some ground of complaint about that.[63]The other material at page 3a shows that on 12 April and 13 April matters (which appear to the lay members of this Tribunal to be no more than the general stuff of office politics) occurred in respect of which it may appear that there was some rudeness or shirtiness exhibited by Mrs Sheridan but so closely connected in time with the events of 14 April that they would give rise to no separate ground or head of complaint.[64]We do not think that that material would be capable of amounting to any breach of her contractual obligations by Mrs Sheridan, however viewed. We think that the greatest force that could possibly be given by any Tribunal to them would be marginal. We cannot see it as sufficient to alter their decision, even if we had been of a view to accede to Dr Cohen's other submissions.[65]A second point of distinction we should note, between the Boston Deep Sea case and the present, is that in the Boston Deep Sea case the evidence upon which the employer sought to rely was evidence which only came to light after the dismissal. That was not this case. This case focuses upon the reasons for a final written warning in the light of material which was then known by the employer, from which the employer selected particular material on which to base that decision.[66]Accordingly, we think for that reason too that the Boston Deep Sea case simply does not assist Dr Cohen, however respected its conclusions in respect of principle have been and have to be. Ground 2[67]Ground 2 argues perversity; that no reasonable Tribunal could conclude that a decision to impose a final written warning amounted to a repudiatory breach of contract.[68]Here, we remind ourselves of the law to which the Employment Tribunal specifically itself had regard. First, in the case of British Broadcasting Corporation v Beckett [1983] IRLR page 43 the court recognised that a penalty of demotion from one post to another was capable of being a repudiatory breach. The principle upon which it did so was that the imposition of a punishment which is grossly out of proportion to the offence can amount to repudiation of a contract of service.[69]In the case of Cawley v South Western Electricity Board [1985] IRLR 89, again a decision of this Tribunal, the Tribunal reversed an Employment Tribunal below. That Tribunal had found that a disciplinary penalty was grossly out of proportion to the events revealed.[70]The Appeal Tribunal adopted the proposition, therefore, represented not just by Beckett but also by the cases of Sutcliffe v Hawker & Sidley Aviation [1973] IRLR 304 and Thedom v British Railways Board [1976] IRLR 137, that a disproportionate penalty could, though not necessarily would, amount to repudiatory conduct.[71]What Dr Cohen argues here is that there has been no case revealed by his researches nor by those of Mr O'Connor, who appears to respond, that shows that a final written warning can be a sanction which is grossly disproportionate to any offence. He submits also that the Employment Tribunal should have properly contextualised the offence in respect of which they evaluated the sanction.[72]Although he is prepared to concede that a disciplinary sanction, if grossly disproportionate, might be capable of amounting to a repudiatory breach, he says that, on both those grounds, it could not possibly do so here.[73]The issue we have to determine is whether the Employment Tribunal came to a permissible conclusion. It is not for us to substitute the conclusion which we would have reached.[74]The material before the Tribunal was, in our view, capable of justifying the conclusion to which the Tribunal came. Much depends, as ever, upon the way in which the incident is regarded. Taking an additional hour for lunch, which might be one way of categorising the conduct, or arriving an hour late at work without prior permission and without good excuse, which would be analogous, would seem to none of us to justify a final written warning, at least in the absence of other material.[75]The lay members of this Tribunal, in particular, emphasise severity of a final written warning. It is given for conduct which just stops short of that justifying dismissal. It is often the penalty imposed when a dismissal is an obvious and permissible sanction, but for reasons personal to the employee is not imposed. It involves a very real penalty, in that there is a risk that should the employee commit any other offence, within a period of a year, however minor it may seem to be on its own, it may, justifiably, be taken to give grounds for dismissal. It may be regarded by an employee as a statement that the employer has in mind dismissal and just pulls back from the brink.[76]Moreover, a final written warning is, as the name suggests, final. Most disciplinary procedures begin with informal resolution. Records begin to be kept, perhaps where there is a verbal warning, certainly a first written warning, and some disciplinary procedures of which we are aware, even provide for an intermediate warning stage before a final written warning.[77]The severity of a final written warning is thus not in doubt. We regard the Employment Tribunal's decision as being permissible, having regard, in particular, to the industrial background against which disciplinary procedures are generally to be set.[78]We need say little more about the scope of the permissible judgment of the Tribunal because it appears to us that the Tribunal was entitled to regard the incident in the words that it did, at the commencement of paragraph 6 (ii).[79]The matters which Dr Cohen urged upon as indicating that the incident should have been regarded more seriously, are, we accept from Mr O'Connor's submissions attempts to reargue fact.[80]As to ground 3, the ground there is the Employment Tribunal's conclusion that the dismissal was procedurally flawed: a decision that no reasonable Tribunal, properly directing itself, could have reached in all the circumstances.[81]That relates to the way in which the Tribunal, having determined that there was here a dismissal which fell within section 95 (1) (c) of the 1996 Act, then proceeded to consider whether or not, in any event, it might not have been unfair.[82]That was to adopt the approach urged by the cases of Voyer v Shilton Farm . It is, technically, correct. But it must be the exception to find circumstances in which conduct by the employer, of the sort alleged here and found to constitute a breach, either of the implied term of trust and confidence, or the implied term that the disciplinary procedure would be used fairly and without oppression, could be found fair once those facts had been accepted.[83]The Tribunal looked at the question of procedure because it was invited to do so on behalf of the employer. It occurred to us at one stage in the argument that essentially it was unnecessary for the Tribunal to consider the question of procedural fairness or unfairness at all, given the conclusion it was minded to reach in respect of the substance of the issue.[84]However, they listened to an argument by Mr Cohen which was dealt with in these terms: 6 (vi) "We have already found that the misconduct of 14 April did not merit the final written warning. It cannot therefore justify a dismissal. As to the relationship allegations, if taken together with the events of 14 April Mr Cohen submits that together they constitute misconduct and thus a reason justifying dismissal within section 98 (2) of the Act. Mr Cohen has also submitted that the relationship issues though not taken into account in reaching the decision to discipline were properly taken into account in deciding upon the appropriate penalty. He cites the ACAS disciplinary code in support. We are not convinced that he is right but even if he is we unhesitatingly say that the dismissal was unfair when one applies the statutory test of fairness as set out in section 98 (4) for two main reasons.(a) The whole of the investigatory and disciplinary procedures were undertaken at a time when Mrs Sheridan was absent from work certified as unfit through stress. The Respondents took no steps to ascertain her condition nor to see whether she was fit to attend disciplinary procedures. The mere attendance of Mrs Sheridan at those hearings cannot in our view justify their continuation, nor did she waive the right to have the matter conducted fairly simply by attending.(b) If the allegations concerning relationship difficulties form a part of the reason for dismissal then they were never put to Mrs Sheridan, a fact which is accepted by the Respondents. Here, of course, the focus is different from the focus in respect of constructive dismissal. Here it is upon the statutory test.[85]As to the essential point, it is contained, as we see it, in the first two sentences of the passage we have just cited. If, however, the "relationship allegations", as they are described, were taken together with the events of 14 April then, Mr Cohen was submitting, those were properly to be taken into account in deciding upon the appropriate penalty. The difficulty with that argument was that the Tribunal found, as a fact, that they were not taken into account. Accordingly, they could have no relevance here.[86]They go on to observe, however, that if (and the conclusion is predicated upon that word) they did form a part of the reason for dismissal then they were never put to Mrs Sheridan. Implicitly, the Tribunal regard that as unfair and we think that they were entitled so to do.[87]There is greater force in one of Mr Cohen's criticisms of what is said at (a). The Tribunal recite as fact that the employers took no steps to ascertain Mrs Sheridan's condition in advance of the disciplinary interviews.[88]He tells us that a Mrs Walker, a personnel officer of the employer, went to see the Respondent and began by asking her about how she was, using her expertise in personnel matters to determine whether, in her view, she was fit to attend and take part in disciplinary procedures.[89]That could be taking steps to ascertain an employee's condition. If the Tribunal was intending to suggest that it was not a step at all, then they may have been in error, though, not in our view, in any way material to the decision which they or we have to reach. However, we think that, probably, the Tribunal was there referring, albeit in a compressed form, to medical steps of which apparently there was none.[90]The fourth ground is that the Respondent's resignation was not on the basis which the Tribunal found and that they were perverse to hold that she resigned due to the final written warning. Suffice to say we have reviewed the letter of resignation, we have looked at the evidence, we have concluded that the Tribunal was so entitled.[91]We are fortified in reaching that conclusion by the reference which has been made by Mr O'Connor to the case of Jones v Sell & Son Furnishers [1997] IRLR 493 , in which an Employment Appeal Tribunal, under the presidency of Judge Colin Smith QC, suggested that the test was that the Tribunal must look at whether the repudiatory breach was the effective cause of the resignation and it did not have to be the sole cause.[92]The sixth ground is that of delay (we shall return to the fifth ground later). The argument there is that a delay of one month should have been taken by the Tribunal as a waiver and that no reasonable Tribunal properly directing itself could have reached the conclusion that the delay was not so significant as to deprive the Respondent of remedy.[93]As to that, we simply say that the application of the principles in Western Excavating (E.C.C.) Ltd v Sharp is not mechanistic. It is a question of fact and circumstance in every case.[94]As the decision in Bashir v Brillo [1979] IRLR 295 demonstrates, for instance, an employee who is sick may well take longer than one who is well before a Tribunal would regard him as having waived any rights to rely upon a repudiation of his contract by his delay in resigning.[95]The question, really, is directed towards whether or not the conduct of an employee is such as to affirm a contract: that is to act in a manner inconsistent with any subsequent exercise of the right to determine it.[96]We can say, shortly, that we see nothing plainly wrong with the decision that the Tribunal reached. We cannot say it was perverse. It was an assessment which the Tribunal was entitled to make and which we cannot say was impermissible. The Review Appeal[97]The submissions of Dr Cohen are, in short, these. A decision, taken on the basis of authority which he had no opportunity to address, is unfair. The Appellant was entitled to a fair hearing, not least because of the impact of article 6 of the European Convention of Fundamental Human Rights .[98]Where an Employment Tribunal deals with a case which they regard as material, significant and relevant, and as binding upon them and that they are therefore obliged to reject an advocate's contentions, they have taken into account as determinative some authority which might not have been. They should, in those circumstances, invite argument as to the true effect of that authority.[99]In the case of Albion Hotel (Freshwater) Ltd v Maia E Silva & Another [2002] IRLR 200 this Tribunal, presided over by His Honour Judge Serota QC, had to determine the question of whether or not there had been a fair trial where three authorities were considered by an Employment Tribunal, to which neither party had referred or had been referred during the hearing.[100]The experience of His Honour Judge Serota at the bar was that, whenever a court wished to refer in its judgment to an authority it had considered to be material and relevant, it would not do so without drawing it to the attention of the parties and inviting them to make submissions upon it. That was what he believed to be a fairly universal practice. Speaking for myself, I agree.[101]He expressed the view in paragraph 35 of the judgment of the Employment Appeal Tribunal that where an Employment Tribunal considers that an authority is relevant, significant and material to its decision that has not been referred to by the parties it should refer that authority to the parties and invite their submissions before concluding its decision.[102]There then follows this passage: 35 "This is more than mere good practice. Failure to do so may amount to a breach of natural justice and of the right to a fair hearing. The failure of the Tribunal to invite submissions from the parties and the three authorities was doubtless inadvertent. The Employment Tribunal may not have recognised the particular significance it attached to the authorities and the balancing exercise it undertook in relation to the relevant facts. However, the consideration of the authorities played a significant and material part in the decision. It seems to us, accordingly, that there has been significant procedural unfairness and this ground of appeal succeeds."[103]What Dr Cohen says, therefore, is that if that passage represents the law there is here unfairness which, in itself, entitles him to succeed on this appeal, whether or not the unfairness would actually have made any difference.[104]In a subsequent case before this Tribunal, that of Nelson v Carillion Services Ltd unreported EAT 837/01 26 June 2002, a Tribunal presided over by His Honour Judge Peter Clark considered the force and scope of the principles set out in Albion Hotel (Freshwater) Ltd v Maia E Silva .[105]The Tribunal said this in its judgment at paragraph 15: 15 "Judge Serota was not stating a new proposition of law when he said [and he quotes the passage which we have just recited]. It is clear from their reasoning that the Tribunal considered the Royal Copenhagen case to be relevant. They cited it in their reasons. The real question, it seems to us, is whether that case significantly added to the learning which had been cited by the parties."[106]He went on to say at paragraph 17 that in the circumstances the Tribunal were not persuaded that the Employment Tribunal's own recourse to the authority mentioned had in fact caused any material injustice to the Appellant. On that basis it upheld the Tribunal's decision and rejected the appeal to natural justice.[107]The issue first which we have to determine is whether, as a principle of law, unfairness, in the respect identified, is a ground of appeal in itself, irrespective of whether, as matters might have turned out, or probably would have turned out, or even almost certainly would have turned out, there was no material injustice to the Appellant. The submissions of Dr Cohen are to the effect that there is such a general overriding principle.[108]We have, alternatively, to consider whether the real question is whether the failure to invite the attention of advocates to an authority which is material, significant and relevant caused material injustice.[109]We have noted that in the Maia E Silva case, before the passage to which we have referred, His Honour Judge Serota specifically restricted the width of the comments he was to make. He said at paragraph 29: 29 "Nothing that we say hereafter should be thought to have any bearing on the case where a Court of Tribunal refers to an authority not cited by the parties which is necessary to explain the background or some point of law that is uncontroversial."[110]Accordingly, it appears to us that he was restricting the principle, expressed at paragraph 25 and referred to in the subsequent case in the judgment of His Honour Judge Peter Clark, to a situation in which an authority was relevant, significant and material and, it might be added, expressed no controversial principle.[111]We think that if the matter were unrestrained by authority, save for article 6 of the Convention of Human Rights , we would be bound to consider that in any case in which a Tribunal failed to refer the advocates to a matter of seminal significance in its reasoning that that Tribunal would not be providing the fair hearing to which a litigant was entitled.[112]The question arises as to what then the consequence should be. We note that in many cases, in our collective experience, reference is made by name or by reference to principle to decided cases, without them specifically being drawn to the attention of the parties.[113]Thus, an Employment Tribunal may make reference in its decision to "the test in British Home Stores v Burchell ". It may refer to" the principle in Iceland Frozen Foods ". It may do so in either case without specifically referring the advocate to those authorities or inviting their submissions upon them.[114]In each case the impact of those authorities may, in one sense, be critical. Thus the test in British Home Stores v Burchell may form the pattern for a Tribunal's decision. So might the application of the range of reasonable responses test to be found in Iceland Frozen Foods . Yet, in neither case, at least as the law stands today, could the principle be said to be controversial.[115]We would shrink, instinctively, from any decision of ours which suggested that there was, as it were, an automatic fail-safe right of appeal if in such a case a Tribunal had not specifically invited the consideration of the parties to such an authority.[116]If our instinctive approach is right then it seems to us that the generality of the proposition that relevant authorities in the Tribunal's consideration should be drawn to the attention of the parties has to be modified or restricted. It is the nature of that restriction which is critical.[117]We think that the question must be whether or not there is any reasonably arguable case that if the parties had been alerted to the authority relied upon by the Tribunal, they would, or might, have made submissions which would, or might, have produced a different result, or, (adopting the facts of the Albion case) might have examined the evidence in a different and more extensive way.[118]We would not think, authority apart, that fairness, in this procedural respect, could exist in a vacuum, unconstrained by reference to the issues that the Tribunal were exploring. There would inevitably have been submissions in any event upon these issues, drawing the attention of the Tribunal, from the viewpoint of the respective parties, to any relevant principle or authority to which that party considered, the Tribunal should pay regard.[119]We are not, however, bereft of authority. It seems to us that both His Honour Judge Serota in Albion Hotel , in paragraph 29 of the decision, and His Honour Judge Clark in his judgement in the case of Nelson v Carillion Services , recognised that the question of fairness had, in these circumstances, to be assessed by reference to the possible consequences. Thus, the question whether any material injustice was caused was the test which he, His Honour Judge Clark, adopted on behalf of the Employment Tribunal in the latter case.[120]Accordingly, we conclude that, as a matter of legal principle, we should not accede to an appeal simply upon the basis that an authority, however material, significant and relevant, has not been drawn to the attention of parties as undoubtedly it should be.[121]Although that disposes of any automatic right to succeed on behalf of the Appellant it does not dispose of this appeal. We consider that Dr Cohen is entirely right to submit, as he does, that it would only be if an Appeal Tribunal could say that it was not reasonably arguable that his ability to address those authorities would have made, or might have made, a difference in the result, that we can reject the appeal.[122]Accordingly, we ask, first of all, what the context was within which the submissions arose which the Tribunal addressed. Secondly, we ask what it was that Dr Cohen might have said, but did not have the opportunity to say, on behalf of the Appellant and, thirdly, we ask whether on any reasonable view of the case there is an arguable case that might have produced a different event.[123]As to the first, the context is one in which the Employment Tribunal rejected the application for a review under Rule 13 (1) (d). The Tribunal had thus concluded that the new evidence could have reasonably been known of, or could have been foreseen, at the time of the hearing. Indeed, stronger than that, in this case, it could be said that there it was not simply a question of reasonably knowing or foreseeing the potential existence of the evidence but that there was material in the papers which put the advocate on notice.[124]The Tribunal dealt with the question of new evidence in paragraphs 3 and 4 of their decision. Paragraph 3 suggests they took the view that there was actual notice, had the parties but looked at and focused upon the documents in the bundle. They regard as a separate question whether or not, in any event, the existence of that evidence was clearly foreseeable and answer that adversely to the Appellant.[125]There has been no appeal in respect of the decision under 13 (1) (d), unwelcome as the result of the reasoning was to the Appellant. Under 13 (1) (e) the only separate issue to be raised was the question whether or not there was some circumstance or mitigating factor which related to the failure to bring the matter within what is now Rule 13 (1) (d).[126]We note that what Dr Cohen was essentially arguing was that the self-same reasons that entitled the Tribunal to reject the application under 13 (1) (d) should be excused under 13 (1) (e).[127]We think that the circumstance or mitigating factor to which the case of Deria refers cannot simply be an appeal to the good nature of a Tribunal. It cannot be based on mercy. It must be based upon some evidence that there is a circumstance or mitigating factor of significance that prevented the uncovering of the new evidence to which the application related. Otherwise, the application under 13 (1) (e) would simply be repetitive of the application under 13 (1) (d).[128]What then was the mitigating factor relied upon before the Tribunal? The Tribunal has paraphrased it by saying that what Dr Cohen was relying upon was, with commendable frankness, his own shortcomings as a representative. Those shortcomings, it should instantly be said, related to his lack of legal professional qualifications. He has argued that again before us.[129]We think that it could not possibly be the case, save perhaps in the most exceptional of matters, that the fact that a representative lacks the legal experience and qualifications of a professional lawyer is such a circumstance or mitigating factor as could fall within the Deria principle.[130]There has to be, in our view, something more significant than that. It would otherwise simply be unarguable that that ground could have made any difference to a Tribunal's decision, whether or not the Lindsay case was taken into account or otherwise.[131]Put alternatively, at this stage in the reasoning if that were the only ground, and if the case of Lindsay v Ironsides had not been referred to by the Tribunal but if the Tribunal had determined to allow the application for a review under 13 (1) (e) after having rejected the application under 13 (1) (d), we should have thought that the Respondent would have succeeded on an appeal against that decision as being impermissible, perverse and contrary to any sensible authority.[132]However, the matter does not end there. Dr Cohen submits to us that what he might have said might have made a difference. He was asked in argument to identify that which he would have said.[133]First, he would have focused upon the need to show mitigating circumstances. Secondly, he would have addressed the Lindsay case. He would have argued that Lindsay was a case in which there was a failure of a representative to act with reasonable diligence and competence throughout the litigation, a clear failure by that representative to perform to a minimum standard.[134]He emphasised to us that the very reference to mitigating factor in the Deria case recognised that it was possible for there to be such mitigating factors and since his own case was not equivalent to that of the circumstances considered in Lindsay , he would, he believed, have had a reasonable prospect of persuading the Employment Tribunal to reach another view. There was, as he put it, a real point that he could have put to them.[135]We have anxiously asked ourselves what arguably might have been the effect of such submissions. We think, first, that it would be recognised that the case of Lindsay , insofar as it is authority or guidance for any subsequent case, purports to set out considerations of general application.[136]At paragraph 24 in the passage which comes in the last 4 sentences, this is said: 24 "Failings of a party's representatives, professional or otherwise" [Mr O'Connor stresses those last two words] "will not generally constitute a ground for review. That is a dangerous path to follow. It involves the risk of encouraging a disappointed applicant to seek to reargue his case by blaming his representative for the failure of his claim. That may involve the Tribunal in inappropriate investigations into the confidence of the representative who is not present at, or represented at the review. If there is a justified complaint against the representative that may be the subject of other proceedings and procedure."[137]Accordingly, it seems to us that factual distinctions between the Lindsay case and the present would probably have had little impact. But more important, as we analyse the submissions made to us, is that the Employment Tribunal was here being asked to excuse a party for overlooking a matter which was, according to the Tribunal's decision, there to be seen had there been but eyes to see it.[138]Dr Cohen told us that he relied upon and would have relied upon two matters. The first was that the Appellant had failed to provide a witness statement for the Employment Tribunal, though having been directed to do so. Because he had not had the benefit of that he would not have had the opportunity of being reminded by its contents that there may be questions to be asked about the way in which, and the time at which, she obtained her employment with Butlins.[139]The second matter was that, although he accepted there was information which was relevant in the bundle, if he had focused upon the Lindsay question he would have argued that he was more focused during the hearing upon the evidence. Inevitably he did not focus upon every detail. In particular although he knew that Mrs Sheridan had obtained other employment, he did not know when she had applied for it. He was unfocused and it was unreasonable to require of him the standard of confidence one might expect of a forensic expert.[140]He went so far in reply, in respect of the first of those two grounds, to argue that the reason for his not making the enquiries earlier than he did, was the fault of Mrs Sheridan; not his fault but hers.[141]We think that the first of those two grounds has to be rejected. It could only have been rejected by any Employment Tribunal directing itself appropriately. That is because it is asserting that there would have been notice if certain steps had been taken. But that assertion is irrelevant in the light of a finding by the Employment Tribunal that there already was such notice, which should have caused a reasonable advocate, enquirer or representative to find and produce the new evidence. The fact that there might have been further indications to the same effect cannot take away from, or mitigate the failure to take notice in the first case.[142]As to the second, although we are sympathetic to a rule which may require an advocate to be focused upon many of several issues, to the degree expected, we again think that it simply restates the matters which the Tribunal had already taken into account and had rejected in their decision in respect of 13 (1) (d).[143]We do not think that there was any reasonable prospect at all of persuading a Tribunal, properly directed, to take any different view in respect of the application under 13 (1) (e) than that which it did. There was here nothing which was capable, as we see it, of amounting to a mitigating factor or circumstance such as referred to in the Deria case.[144]It follows that the conclusion that we feel bound to reach, in respect of the review appeal, is, or might be thought to be to some extent unsatisfactory.[145]We would hope that any and every Tribunal dealing with any authority which it considers relevant material and significant would draw it to the attention of the advocate and, if it intended to refer to such an authority, would invite submissions upon it, even after the close of final submissions. This did not happen.[146]We do not think that could be remedied, simply by the fact that the Chairman in the presence of the parties referred to both those authorities and might then have been open to an immediate application to consider further argument upon them. That would perhaps be unrealistic in the circumstances of a case such as this with representatives who lacked the professional legal qualifications that Dr Cohen notes were absent in his case.[147]However, we feel that if the law is as we have stated it to be, we have whilst recognising those imperfections and the centrality which the Lindsay case occupied in the decision of the Tribunal, to reject this appeal. We do so on the basis that no material injustice was caused to the Appellant or, put colloquially, there is no reasonable argument that the decision would have been any different. Had it been that in itself would have given an appeal to the Respondent.[148]For those reasons we are obliged to dismiss both the appeals. Leave to Appeal[149]We have been faced with an application in two parts for leave to appeal. We propose to allow it in part. The first part relates to the review matter. The argument is that the decision raises fundamental points of law.[150]As we see it our decision proceeded in two stages. First of all to reject the proposition that there was a fundamental overriding point of fairness, such that whatever the consequences there was an automatic appeal should the Tribunal fail to draw the attention of the parties to a material, significant and relevant authority.[151]The second part of our reasoning was to express what we considered to be an appropriate restriction upon the generality of that principle. As to that, there are now three different formulations: that of the Employment Appeal Tribunal presided over by His Honour Judge Serota; that presided over by His Honour Judge Clark and that of this Tribunal.[152]It seems to us that it is desirable that the Court of Appeal should have the opportunity to consider, first, whether there should be any restriction and if so, what the width and scope of that restriction should be. It may be that in the result there is no difference, but we cannot say that is so and so we are prepared to give leave on that head of that appeal.[153]As to the merits appeal, we think there is no arguable point. It turns upon the expression by the Tribunal in paragraph 6 (ii) of its reasoning, as to which we think there is no reasonable argument in the context of evidence which, more than once, drew the Tribunal's attention to, what might be described as 'relationship matters'. For that, and for the reasons we gave in our decision, we do not think there is any reasonably arguable point of law.[154]So, to the extent that we have indicated, we do give leave. We think there would be little practical advantage to delaying any further the hearing of the compensation issues which may arise. The review appeal need not mean that the stay needs to continue. But we shall say no more about that: the parties may take it up with the Tribunal.[155]I am quite happy to direct that the appropriate documentation needs to be lodged 14 days from the date of the receipt of the written judgment. Costs[156]We have some considerable sympathy with the application for costs which has been made to us by Mr O'Connor and came close to thinking that this might be a case in which the appeal on the first ground was within the Rule 34, so as to provide us with a basis for deciding if application in his favour. But we have been persuaded by Dr Cohen that we should not accede to the application. The case was permitted to go through in its entirety by the provisional hearing and the reference to costs there is unspecific. We do, however, remind the parties that although costs are not normally awarded in this forum they are, of course, such as will normally follow the event in the Court of Appeal.

Cited in 1 later judgment