MR P DALE v THE GOVERNING BODY OF ST. PETER'S HIGH SCHOOL ESSEX COUNTY COUNCIL [2002] UKEAT 1188_01_2504

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1188_01_2504Case No Appeal No. EAT/1188/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P DALEAPPELLANTTHE GOVERNING BODY OF ST. PETER'S HIGH SCHOOL ESSEX COUNTY COUNCILRESPONDENT
Before
His Honour Judge J R ReidDate 25 April 2002
[1]APPEARANCES For the Appellant MRS J WATSON (Representative) Redress Bramble House Hook Nr Goole East Riding of Yorkshire JUDGE J R REID QC: This is a preliminary hearing of an appeal by Mr Dale against a decision of an Employment Tribunal held over four days in July 2001 at Bury St Edmunds. The decision was sent to the parties on 9 August last year. By the decision the Tribunal unanimously decided Mr Dale was not unfairly dismissed by his former employers, The Governing Body of St Peter's High School. He had been for many years the head of the music department at that school until he sent in a letter of resignation. The issue essentially for the Tribunal was whether or not he sent in that letter of resignation as a result of repudiatory breaches of his contract by the employer.[2]The circumstances of his resignation can be dealt with, I hope, in uncontentuous terms. A new head teacher was appointed, a Mrs Steele, who had previously been the deputy head. It is clear that there were personality differences between Mrs Steele and the Applicant. Eventually, after a considerable number of toings and froings and the institution of grievance procedures, on 19 July 2000 Mrs Steele wrote a memo to Mr Dale in which she told him that from September onwards, only equipment owned by the school could be used in the music department and that equipment belonging to the Applicant, Mr Dale, should therefore be removed. Mr Dale complied with Mrs Steele's request over the summer holidays and a great deal of equipment was removed. Mrs Steele described Mr Dale as having the stripped department, and that would appear to be an accurate description.[3]On 10 September there was a meeting to discuss how to proceed with the music department and its work, following the removal of a substantial proportion of the equipment. The meeting, according to the Tribunal was at Mrs Steele's request, and at Mr Dale's request he was accompanied by a friend and fellow musician, a Mr Watkins. Mr Dale had, before the meeting, written to Mrs Steele, a letter which contained this passage; "I need all the resources I have lost so that all the functions of the department can be fulfilled as they always have been and I am simply not prepared to talk about some of them and ignore others."[4]At the meeting, Mrs Steele wanted to discuss what should be done in the short term but Mr Dale wanted to discuss only the question of a complete restoration of the department's equipment by equipment similar to that which had been removed, and he wanted that to be done at the expense of the Governing Body. He dictated a list of the equipment which he regarded as essential. Mrs Steele pointed out she would have to raise the money and that she was therefore going to have to have a meeting with the governors. She said she would organise a meeting with the governors as soon as possible and that she would report the outcome of the meeting to Mr Dale.[5]The Tribunal considered whether the promise that she made was that she would organise a meeting of the governors, hold that meeting and report back within 7 days, or whether she would simply report after 7 days as to the progress that she had made towards obtaining a meeting with the governors. The Tribunal preferred the latter view.[6]The problem that then arose, according to Mr Dale, was that after a week, there was a telephone conversation from which it became apparent that Mrs Steele had not approached the governors to ask for the full amount of money needed to replace all this equipment and was not proposing to do so. The reason that it appears that she had taken this course, was that she had made contact in the meanwhile with a Miss Brockis, who is the Music Curriculum Development Officer attached to the Essex County Council and asked for advice. The advice given had been to the effect that a comparatively modest amount was needed to be spent on equipment to enable at least GCSE work to be done.[7]One of the issues for us was whether Miss Brockis was misinformed and whether in the course of cross-examination she said that had she known that much of the equipment that was there was not in a usable state, she would have given the same advice. In any event, Mr Dale spoke to Mrs Steele on 17 September and learnt that she had not approached the Governors for the replacement of all the equipment. The case that Mr Dale has advanced, at least as it appeared in the preliminary argument to us, was that he took the view, that the promise having been broken, there had been a fundamental breach of contract by the employer and as a result of that, he felt compelled to resign.[8]There were a very large number of points leading up to that final breakdown, which were dealt with before the Trbunal and as I have already said, the Tribunal considered the question of the 7 day issue. The way in which the case has been presented to us is that that was not in fact the crunch issue when it came to Mr Dale's resignation and that it was the broken promise that was the crunch issue. It is said to us, and it appears to be at least faintly arguable, that if this was indeed, as is suggested the issue that was being ventilated on Mr Dale's behalf, the Tribunal failed to deal with it. They said at paragraph 10; "In any event as we understood it, it was not part of the applicant's case that the instruction to remove his equipment was the "last straw" which caused him to resign, but rather the fact that Mrs Steele, as he put it, went back on her promise "to seek an Extraordinary meeting with Governors to ask them to fund the necessary equipment………..and to supply their answer within 7 days." They then went on at paragraph 12 to say this; "It was our view that even had Mrs Steele given the promise in the terms described by the Applicant i.e. to hold the meeting and come back with results of the meeting within 7 days, which we were not disposed to accept was the case, it was a perfectly proper course for her to obtain the views of the specialist Curriculum Advisor in the person of Miss Brockis as to the viability of the Department. No doubt the Governors would have required that information from Mrs Steele in any event, had a meeting taken place. We did wonder whether in fact it was because Miss Brockis' advice was unwelcome to him and sour grapes in his mouth that the Applicant chose to resign. We concluded that the handing in of his resignation was not a reasonable response on the part on the Applicant for the information which Mrs Steele had given him regarding Miss Brockis' advice. Mrs Steele's action in speaking to Miss Brockis before reporting to the Governing Body was in no way repudiation or in breach of the Applicant's contract of employment."[9]That we are told is not the case that was advanced. The case, as I have already said, that was advanced was that she had promised to ask the Governing Body for the full amount necessary to reinstatement of the department as it had been before and not in some sort of stop gap way, and that it was the breach of this promise which resulted in his resigning. If that be right, and it appears to be at any rate marginally arguable that it was, the Tribunal failed to deal with the issue. So far as that ground of appeal is concerned, which I think needs to be reformulated, in the amended grounds of appeal, we allow the matter to go to a full hearing.[10]There is a second and subsidiary point which goes with this and that arises also out of paragraph 10, which is in these terms:
"By reason of the nature of the evidence given both by Miss Brockis, the Curriculum Development Officer, and Mr Stephen Pritchard, the second music master, we do not accept that it was not possible for at least the GCSE curriculum to have been adequately taught. We do not doubt that it would not have been taught in the way in which the applicant was used. That was not the issue. Miss Brockis' told us that "not with an amazing amount of money" sufficient musical equipment could have been made available. Mr Pritchard told us that in the event "the Department got by and survived"
. The decision does not record what it is said was given in evidence by Miss Brockis' in cross-examination, namely that had she known of the state of the equipment when she was asked for advice, she would not have said that a comparatively modest amount of money should be spent.[11]We do not know to what extent this was an oversight and Miss Brockis did resile from the position that with not an amazing amount of money sufficient musical equipment could have been made available. Nor do we know whether that omission affected the finding of fact in paragraph 10, or had any bearing on the finding that Mr Dale's resignation was not in answer to a fundamental breach of contract. If, as been suggested to us, the evidence in fact before the Tribunal from Miss Brockis' was that given the state of the equipment as she was subsequently told of it, a substantial amount of money would have been necessary and that the equipment to be provided would not have allowed the A level course to be taught or for the peripatetic music teachers to carry out their functions, it may be that it would have affected the view which the Tribunal took as to the reasonableness of Mr Dale's reaction. We take the view that the issue as to whether or not the Tribunal failed properly to consider the evidence of Miss Brockis and whether that thereby their decision was thereby flawed is a matter that should go to full hearing.[12]In order for that to be done it will be necessary for notes of Miss Brockis' evidence to be before the Employment Appeal Tribunal and we will direct that notes of her evidence be supplied. There were a very substantial number of other points taken, many of which, with great respect to Mrs Watson, who has represented Mr Dale today, were largely nit picking points and some of which were manifestly inaccurate, but we do not feel it necessary to deal with any of those other points beyond saying that leave should not be granted to pursue an appeal in respect of them.[13]There was however one point of a different type, with which I should deal briefly, there was a complaint that Mr Dale did not receive a fair hearing because of the apparent deafness of the Chairman of the Tribunal. This apparently came to light when he was observed in the course of the last day, either early in the morning, (according to him) or in the middle of the morning, fitting his small hearing aides. It was said, on behalf of Mr Dale that his side had been aware that the Chairman was having difficulty hearing from the way in which he asked witnesses to repeat themselves and from the way he leant forward. If that was so it is surprising that no earlier effort was made to take the point up and more surprising still that the conclusion of the hearing, nothing was said about it, but the Appellant waited till after he had lost before seeking to take the point.[14]The chairman, in his note to the Tribunal indicated that he did indeed wear a hearing aide as and when necessary and he said of course from time to time he did ask people to repeat what was said. That was generally speaking, either because he required to take a full note or on some occasions because something was not clear but in any event:
"The AR also refers to request for repetition on my part, this respect I comment that as any Tribunal Chairman can confirm, the most common sense of reason giving rise to such requests is a requirement that the Tribunal Chairman keep a proper note of the evidence, I frequently find I am obliged to ask the witness to pause to repeat part of his evidence so I can take proper note of what he or she has said. I firmly reject the AR's complaint regarding my ability properly to hear since it is solely based on the false conclusions she has erroneously drawn from her inaccurate observations."
[15]In our judgment, had a point been intended to be taken about this, it should have been taken at the Tribunal. We were directed to the recent decision in which Judge Gabriel Hutton in a Crown Court stopped a case and ordered a re-trial because a complaint was made during the course of the case that he had nodded off. He said that he was not aware that he had but if he gave that impression it was appropriate for him to order a re-trial. That is not in our judgment a similar situation, leaving aside that that must clearly have been in fairly extraordinary circumstances because otherwise every defendant who thought his trial was going against him, could seek to have it aborted merely by sticking up his hand and suggesting that the judge had gone momentarily to sleep. But here it was not suggested on behalf of Mr Dale that the two other members of the Tribunal were affected by sympathetic deafness, nor does it appear to have been a matter which was thought enough of before the decision was made for any steps to have been taken in relation to the chairman's supposed deafness. In our judgment it is a point entirely without merit and should go no further.[16]We will therefore direct that within 14 days the Appellant file an amended notice of appeal raising only those two questions that I have indicated and that the chairman should supply to the Employment Appeal Tribunal a copy of his notes of the evidence of Miss Brockis. The Employment Appeal Tribunal will of course also require any witness statement which formed her evidence in chief. That will be provided by the Respondents who called her as a witness.[17]To that extent therefore we shall allow this appeal to go forward but we shall not allow any other grounds of appeal to be advanced.