Mak v Waygood Gallery Ltd (Practice and Procedure : Appellate jurisdiction or Reasons or Burns-Barke) (Rev 1) [2011] UKEAT 0589_10_1904

EAT
Mak v Waygood Gallery Ltd (Practice and Procedure : Appellate jurisdiction or Reasons or Burns-Barke) (Rev 1)
[2011] UKEAT 0589_10_1904 · 2011-04-19
[1]The Claimant, Miss Mak, appeals against a decision of an Employment Tribunal consisting of Employment Judge Truscott QC and two lay members, sitting at Newcastle, held on 4 and 5 October 2010. The Tribunal rejected Miss Mak’s claims for unfair constructive dismissal and breach of the Public Interest Disclosure Act provisions of the Employment Rights Act 1996 . There was a modest order for wasted costs against a firm of solicitors who had been advising the employers, as to which nothing arises on this appeal.[2]The proceedings were somewhat one‑sided. The Claimant was represented by Mr Adrian Melia, who has also appeared before us. He called her to give evidence and also a Mr Topsy Qur’Et. The Tribunal considered that the evidence of Mr Qur’Et was not relevant. Mr Melia tells us, and we accept, that the Claimant read out the witness statement, which we have in our bundles, and was then asked some questions about it by the learned Employment Judge. The Respondent did not appear and was not represented.[3]The Judgment does not record anything said by the Claimant which contradicts anything in the witness statement and we shall, therefore, proceed on the basis that the Employment Tribunal must have accepted the witness statement at face value.[4]The reserved Judgment of the Tribunal sets out a series of questions at paragraph 2, which had been identified at the case management discussion:
“2.1 What is the conduct complained of that the Claimant relies on entitling her to resign and claim constructive dismissal? 2.2 Does that conduct amount to a repudiatory breach of contract? 2.3 Has the Claimant delayed in resigning? 2.4 Did the Claimant resign in response to a repudiatory breach of contract by the Respondent? 2.5 If the Claimant was constructively dismissed was that dismissal unfair?”
Then under question 6 a series of issues on the protected disclosure claim.[5]Apart from a possible criticism that question 5 is superfluous - in that if question 4 has been answered ‘yes’, it follows inevitably that question 5 would be answered ‘yes’ - no criticism could be made of this list of questions. The difficulty as we see is that the Tribunal did not go on to answer them.[6]In section 3 of the Judgment the Tribunal made findings of fact based on the evidence of the Claimant and the documents in the bundle. This takes us up to the Claimant’s resignation. At paragraph 4 they refer to Mr Melia’s submissions in two lines and then in section 5 they set out, at considerable length, running to nearly 9 pages of the typed Judgment, the law which is applicable. This is a compendious statement of the law, both on constructive dismissal and on protected disclosures. Mr Melia does not complain of it.[7]At paragraph 6.1 the Tribunal resume the factual narrative. After paragraph 6.4, and before paragraph 6.5, there is a paragraph numbered 6.6 (we shall call that 6.4(a)). 6.1 to 6.4(a), as we have said, continue the narrative. Then the constructive dismissal decision is given in the following terms:
“6.5 The conduct complained of by the Claimant is set out in the findings of fact. 6.6 The Tribunal determined that at no stage did the Respondents breach any term express or implied of the contract of employment of the Claimant or contravene any statutory obligation (this is addressed later). 6.7 The issue of delay by the Claimant does not arise. 6.8 The reason for the resignation was not anything the Respondents did. There was no last straw. The letter from Muckle, so far as it concerned the Claimant did address how to deal with the outstanding grievance, so neither of the reasons given by or on behalf of the Claimant for resigning can be correct. 6.9 As there was no constructive dismissal, there was no unfair dismissal.”
[8]The Claimant lost. She is entitled to know why she lost: see the well‑known decision in the case of Meek v City of Birmingham District Council [1987] IRLR 250 and the Court of Appeal’s Judgment in English v Emery Reimbold and Strick [2002] EWCA Civ 605 . We regret to say that this extremely compressed reasoning does not answer the question paper rightly set in section 2 of the Judgment and does not explain to the Claimant why she lost.[9]On this ground alone, quite apart from any other, this Judgment cannot stand. The conduct which the Claimant relied on, so far as we can see, is the Respondent’s failure to deal with a grievance which she submitted, or rather Mr Melia submitted on her behalf, in a five‑page grievance letter of 19 August 2009. Her complaint was that it took four months for the employers to give adequate substantive response. They did so by their solicitor’s letter of 18 December 2009 and they did so in what the Claimant perceived as negative and aggressive terms.[10]The question would then be for the Tribunal to say whether that conduct amounted to a repudiatory breach of contract and, if not, why not. The statement that “there was no last straw” in paragraph 6.8 and the bald statement there was no breach of contract in paragraph 6.6 do not adequately deal with this question. We are not saying that a Tribunal would have been bound to find that the 18 December 2009 letter was repudiatory. However, if they were to find that it was not they would have to explain why not in more detail than was done in these brief paragraphs.[11]It may be that the Tribunal had something in mind indicated by the words “this is addressed later” at the end of paragraph 6.6. Unfortunately it is not addressed later, unless perhaps it is an oblique reference to a health and safety issue mentioned briefly in paragraph 6.10.[12]In the light of our conclusion on constructive dismissal, it is inevitable that the appeal must be allowed and, sadly, that the case must be remitted to a freshly constituted Employment Tribunal for rehearing. That being so, we need not consider whether the reasoning on the public interest disclosure element of the claim at paragraphs 6.10 to 6.14 is adequate. In fairness to the Tribunal, it is not as abrupt as the reasoning on the constructive dismissal case, but since the claim has to be reheard it would be futile, in our judgment, to try to split the public interest disclosure aspect from the main claim.[13]The Employment Appeal Tribunal has received a letter from solicitors instructed for the employers, Dickinson Dees LLP, arguing the employer’s case and describing the decision below as “a very measured and detailed judgment”. We disagree for the reasons we have given. The letter goes on to say that the Respondents are without funds and have applied for dissolution of the company. That may be so but it does not detract from the validity of the appeal and it must be a matter for the Claimant whether the Respondents are worth pursuing for a second time.[14]There is also reference in the correspondence to a document which is said to be fabricated. It is not a matter which we need to resolve on this appeal. The Tribunal were shown evidence about a proposal for settlement of the claim. It cannot, as we see it, affect our decision on this appeal whether the compromise agreement document contained in the papers was sent and drafted by the Claimant’s solicitor, by the Claimant’s partner or neither. Indeed, the fact of the settlement proposal, as it seems to us, is immaterial to the overall merits.[15]We allow the appeal and remit the case for rehearing by a fresh Tribunal.