MR D SPIRO v HILL HOUSE HAMMOND [2002] UKEAT 1195_01_2205

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1195_01_2205

Case No Appeal No. EAT/1195/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR D SPIROAPPELLANT

HILL HOUSE HAMMONDRESPONDENT

Before

His Honour Judge D M Levy

Date 22 May 2002

[1]APPEARANCES For the Appellant MR S SPIRO A.C.I.I. (Representative) 17 Central Avenue Hounslow Middlesex TW3 2QR JUDGE D M LEVY QC: This is the preliminary hearing of an appeal by Mr D. Spiro ("the Appellant") from a decision of an Employment Tribunal sitting in London South on 17 and 18 July 2001. They were considering the Appellant's complaint that he had been unfairly dismissed by the Respondent, Hill House Hammond. His complaint was one of constructive dismissal.

[2]Following the hearing, the Decision of the Tribunal was promulgated on 14 August 2001. The unanimous decision of the Tribunal was that the Appellant had not been unfairly dismissed. There was an application for a review against that decision which was declined. It was promulgated on 18 October 2001. Prior to the promulgation of that decision, a Notice of Appeal had been launched. We think it of use to refer to the grounds for refusing the review because they are ones which, to some extent, have force in our approach to this appeal.

[3]We should say that the Appellant was represented before the Employment Tribunal, as he has been here, by his father, who has put forward a case, about which he feels very strongly, forcefully and has taken us to a number of documents. He has taken the trouble to type a five-page Skeleton Argument and he had prepared a fair amount of material for the application for a review. He has also provided us with a selection of documents from the appeal bundle to which he has taken us during the hour and a quarter during which we heard his submissions on this application.

[4]The Chairman refused a review on these terms:

"1 The Applicant seeks a review of the Tribunal's decision, sent to the parties on 17 August 2001, dismissing the Applicant's claim that he was unfairly dismissed by the Respondent. The Applicant's grounds set out in a six page undated document signed by the Applicant's father are: (i) That Mr Lock (the Respondent's representative) misled the Tribunal by stating the Applicant took four months to complain; (ii) That the decision of the Tribunal is inconsistent with the evidence; (iii) That the Tribunal erred in law; (iv) That the interests of justice require a review. 2 In effect it is only the last ground which is of relevance since it embraces the other three and it is the only relevant ground in this case upon which the Tribunal has power to review its own decision. …"

We will miss out a paragraph on the rules for review. The Chairman then says this:

"4 This case was heard over a period of two days during which time the Tribunal heard evidence from the Applicant and from four witnesses for the Respondent. The Applicant's case was that he was constructively dismissed. He had resigned, he said, due to bullying and harassment from his line manager, Mr McFetridge. These events took place prior to mid-June 2000. The Applicant did not resign until October 2000. Some other complaints raised concerned the refusal of the Respondents to permit the Applicant to resume his full duties and the failure to investigate his grievances adequately. 5 All these matters were investigated at length at the hearing and the Tribunal found against the Applicant after carefully weighing all the evidence and concluding that the complaints were either unfounded and/or did not amount to a repudiatory breach of contract by the Respondent. The grounds for the current application are essentially founded on the proposition that the Applicant does not agree with the Tribunal's findings of fact. All the matters referred to in the application have already been the subject of evidence and of submissions by the parties. No new evidence is sought to be adduced. No fundamental error of law has been identified. In the circumstances the interests of justice do not require a review and the application has no reasonable chance of success. It is therefore dismissed."

[5]The Notice of Appeal which was submitted some time before the review, sets out nine grounds of appeal. The first three we can deal with fairly briskly, which are:

"(1) Respondent failed to comply with the requirements of the Health and Safety at Work Act 1974; (2) Respondent failed to comply with the Management of Health and Safety at Work Regulations 1999; (3) At common law management have a duty of care at every level to protect staff against physical and psychological injury."

First of all, none of these matters seem to have been raised in the Originating Application but, more fundamentally, the case which the Appellant was putting forward at the Tribunal was that he was the subject of bullying. Having heard evidence the Tribunal made findings of fact – unless it was reached without appropriate evidence, they are findings with which we cannot interfere. The Appellant has not satisfied any of us that the Tribunal were not entitled to find that he was not subjected to bullying. It seems to us, therefore, that these three grounds have nothing on which we can permit them to go forward to a full hearing.

[6]The fourth ground is:

"A threat by an employer to stop an employee's pay is a fundamental breach of contract which give rise to constructive dismissal."

In the supplementary documents, which we have been shown, it became apparent that there was produced to the Tribunal one medical certificate suggesting that the Tribunal was not fit for work for a period. He had apparently had not commenced work after that period had ended. After the father had been negotiating on behalf of the son, the Respondent Company made it clear that if he produced a sick note he would be paid sick pay, otherwise he would only be paid statutory sick pay. While negotiations between him and the employer continued, they were prepared to pay him in full. As he apparently chose not to go to work for a period without producing a sick note, we cannot see that the employer can be criticised in any way. We would add that in the letters which have been produced to us by the Appellant today, it is our view that the company was falling over backwards to try to assist the Appellant to solve his problems with it. We refer in particular to a letter dated 15 August 2000, which was some time before the Appellant decided not to return to work, and at a time when he had an offer of another job. While negotiations were continuing, there was written to him a letter which contained these paragraphs:

"Turning back to your letter, I cannot help but feel that you have not responded to the request in my previous correspondence to decide what you are doing in respect of your employment. You are still an employee of the Company and you continue to be paid. However, you are still absent from work. This is not a situation that I can allow to continue. I have previously set out the options that are available to you, namely: 1 To return to our Feltham branch, with a meeting to facilitate a reconciliation with your Manager, with myself or Keith Insch in attendance. 2 To transfer to our New Haw branch with an immediate £500 pa increase in your salary. In either case I will ensure that your next salary includes an amount equal to your highest incentive bonus earned since joining HHH which is £201.50."

It seems to us that there is nothing in this ground of the appeal.

[7]The fifth grounds is:

"(5) That the transfer of Appellant from his contracted duties of sales advisor to admin duties only was a breach of contract by Respondent."

This is something that has been explained in the Extended Reasons of the Tribunal in paragraph 9:

"Furthermore, we find that the change in the Applicant's duties following the performance assessment conclusions in February was a reasonable request which also did not amount to a breach of obligation on the Respondent's part."

This was a finding by a Tribunal which heard evidence over two days and, in our judgment, was entitled to come to that decision in fact.

[8]The sixth ground in the Notice of Appeal is that:

"6 Tribunal's decision is inconsistent with the evidence of the doctor's certificate."

We turn to the doctor's certificate which was before the Tribunal. It was a certificate dated 5 September 2000 and the medical certificate stated:

"This is to certify that, in my opinion [the Appellant] is suffering from stress and nervousness and was unable to attend work from 13 June 2000 to 4 September 2000."

In our judgment there is nothing inconsistent found in that medical certificate with the Tribunal's decision.

[9]The seventh and eighth ground in the Notice of Appeal was that:

"7 Tribunal have completely omitted one stage of the complaint process. 8 The Tribunal failed to address the memo from Dave Barnett in their judgment as it is clear from the outset that the Respondent were trying to get rid of the Appellant."

We have looked at the documentation in question, an inter-office attendance note by Mr Barnett of an off the record chat which was made some time after 9 June 2000. Again, there are different ways of looking at the document, but for the Appellant it was suggested that the employers were trying to get rid of him in an unsavoury manner. It does seem to us that the employer was doing all it reasonably could be expected to do in the circumstances of the business to deal with the problems of the Appellant in a sympathetic way: that was a conclusion to which the Tribunal would have been entitled to come. The fact that they did not refer to this one document, does not impeach the judgment of a Tribunal who saw and heard the witnesses; not every document has to be referred to in a Decision. A party cannot nit-pick from the documents to choose the plums and omit the duffs.

[10]The final ground of appeal is that: "9 The Tribunal misdirected itself in relation to the evidence." [We were copied the Tribunal Decision, grounds for review and various other documents]. We do not consider, any of us, having looked carefully at the matters which have been placed before us, that there has been any misdirection by the Tribunal.

[11]The Appellant has had his day in Court. No matters of law are raised in this Notice of Appeal which have any hope of success and, sympathising though we may with the Appellant in the difficulties he says he had in his employment, we have to dismiss this appeal.

[12]Mr Spiro on behalf of the Appellant reminded us of the Human Rights Act 1998 and in that connection drew our attention to a decision reported in the Times of Good v Martin in the Court of Appeal where Brooke LJ, according to the Times Report which has been produced to us, referred to the benefits of parties from the Human Rights Act. That case concerned whether amendments to pleadings could be raised. Therefore, it is not absolutely in point here. We do not consider from what we have seen, that there has been any breach of the Human Rights for which the Appellant could have had redress under the Human Rights Act 1998 . In our judgment, from the papers which we have seen, he had a fair hearing in the Employment Tribunal.