Collins v Club 24 Ltd (t/a Ventura) (Victimisation Discrimination) [2012] UKEAT 0028_11_1201

EAT
Collins v Club 24 Ltd (t/a Ventura) (Victimisation Discrimination)
[2012] UKEAT 0028_11_1201 · 2012-01-12
[1]This case is about unfair dismissal and there are some criticisms of the procedure of the Employment Tribunal. I will refer to the parties as the Claimant and the Respondent. Introduction[2]This is an application under rule 3(10). I gave my approach to this sort of application in Haritaki v South East England Development Agency [2008] IRLR 945 , which should be read (paragraphs 1 to 13) with this Judgment. Since then the Court of Appeal has approved my approach in Hooper v Sherborne School [2010] EWCA Civ 1266 and Evans v University of Oxford [2010] EWCA Civ 1240 .[3]The appeal itself is against the Judgment of an Employment Tribunal sitting at Sheffield over four days, under the Chairmanship of Employment Judge Trayler, sent to the parties on 13 November 2010. The Claimant was represented on the first two days of the hearing by a consultant, on the third day of the hearing, two months, later, by Mr J Sykes, a consultant, and the matter seems to have come back on 25 October 2010 with further written submissions by Mr Sykes. The Respondent was represented by Mr Smedley throughout.[4]The Claimant made a number of complaints including unfair dismissal, failure to make payment in respect of notice, deduction from wages and having been subjected to detriments on the ground that she made a public interest disclosure. The principal issue was whether there was a constructive unfair dismissal. The Tribunal rejected all the Claimant’s complaints. She appeals.[5]On the sift of the appeal, HHJ David Richardson formed the view that there was no prospect of success and he said this:
“The term of the Claimant’s contract was wide - a general duty upon employees to assist and further the interest of the company in all ways reasonably asked of them - see paragraph 3.9 of the Tribunal’s reasons. The Tribunal found that the instruction to canvas a donation to the RSPCA and go through training in fundraising in order to do so was a reasonable instruction: see paragraph 5.5. This being so, there was no foundation for the Claimant’s claim of constructive dismissal. The Notice of Appeal in part argues for and in part is predicated upon a finding that as a matter of contract (either originally or by variation) the Claimant was entitled to refuse to canvas donations. This was plainly not the contractual position originally: see paragraph 3.9, which I have quoted. The Tribunal found no variation. The Tribunal did find that the Claimant was excused from taking part in fundraising for a time (see paragraph 3.15), but it does not follow that there was a variation of the contract whereby she was for all time entitled to refuse such work. On the contrary, the contractual background to the excusal was that the Respondent was entitled to issue reasonable instructions at any time. The Tribunal dealt with this point properly in its reasoning at paragraphs 5.10 to 5.13. For these reasons I consider that the Notice of Appeal discloses no reasonable grounds for appealing.”
[6]The Claimant expressed her satisfaction and exercised her right to a rule 3(10) hearing. She was fortunate to have the assistance of Mr Ohringer, counsel appearing under the aegis of the ELAA Scheme. It became apparent that certain material needed to be produced and the hearing was adjourned. Written submissions made to the Tribunal below were produced. The Claimant sought to revive the rule 3(10) hearing rather than proceed on the papers. She appeared without representation on 4 August 2011, when I made orders for the production of certain materials in the hands of her erstwhile adviser, Mr Sykes.[7]It was clear that the Claimant had fallen out with Mr Sykes and was seeking to obtain material from him which she had given him, for the purposes of the second part of the original hearing, the part when Mr Sykes joined it. It appeared to me that if material were forthcoming, as the Claimant alleged, the proper venue would be the Employment Tribunal and I invited her to make such an application for a review. See my Judgment in Korashi v Abertawe Bro Morgannwg University Local Health Board UKEAT/0429/09.[8]In due course the Claimant made, and on 22 November 2011 the Employment Judge refused, the application. There is no separate appeal against that. The judge refused it because it was out of time and the Claimant was represented at the time she made the claim at the Tribunal and on appeal to the EAT. He saw no reason to extend time. In any event, he would have refused it because it had no prospect of success.[9]What is telling about this refusal is it contains the nub of the Tribunal’s reasoning as to the failure of the Claimant to succeed in her PIDA claim. This was because neither of the Claimant’s representatives at the time had identified a breach of legal duty or criminal act sufficient to found such a claim under Part IVA of the Employment Rights Act 1996 .[10]Meanwhile, the Claimant has made a complaint about Mr Sykes and the organisation under whose letterhead he appears, to the Claims Management Regulator. I do not know the outcome.[11]It is important to note in these proceedings that the Claimant holds very strong beliefs and supports her argument with very substantial documentary material. The facts[12]The Tribunal made the following findings introducing the parties:
“3.3 The Claimant is Miss Cathrine Collins born 12 April 1957. (“Miss Collins”). The Respondent is Club 24 Limited which trades as Ventura. 3.4 Miss Collins was employed by Ventura from 12 June 2006 until the termination of her employment by resignation on 26 December 2009. The Claimant provided work for the Respondent in connection with its call centre support for the RSPCA charity. Initially the Claimant’s title was Customer Service Adviser. We find that the title of the role had changed to Customer Experience Adviser during the course of the Claimant’s employment. 3.6 The work provided by Ventura to the RSPCA was to service an advertised telephone help and advice line which was also dedicated to receiving calls in relation to animals at risk or suffering harm. There was a separate line operated and advertised by the RSPCA by which callers could make an inquiry as to making donations. When a caller telephoned the helpline number there were then a number of options as is common with this type of service by which a key can be pressed to choose the relevant line for example for an emergency referral or alternatively another type of enquiry such as for advice.”
[13]The Respondent has a disciplinary policy which provides for summary dismissal as an option if there is serious insubordination and refusal to carry out reasonable instructions. The Respondent also has a whistleblowing policy. The Respondent agreed with its client, RSPCA, that its advisers who were called on the phone would be asked to canvass those callers where appropriate, whether they wished to make a donation to the work of the RSPCA. There was no compulsory requirement. Some training was given.[14]The Claimant did not agree with the use of the advice line for this purpose. She had a satisfactory work and performance record and the only issue the Respondent had with her was her refusal to canvass for donations. She considers she was bullied into fundraising. She raised a grievance which was rejected. On 12 November 2009 an investigation was conducted. The Claimant was suspended with immediate effect on the grounds of gross misconduct for failing to comply with reasonable request to attend training.[15]The Tribunal held that the Respondent acted reasonably in seeking to ask its employees to canvass for donations after suitable training. This was part of the contract. The Claimant resigned, after her grievances were rejected in retaliation for the way in which the Respondent addressed the appeal. There was no breach of the Claimant’s contract, but the Respondent was simply carrying out what was expressly anticipated when the contract was entered into. A reasonable employer could address the problem of its instructions in the way the employer did in this case. It also had a right to suspend her.[16]The Tribunal dismissed the allegation that detriments had been imposed on the Claimant for making a public interest disclosure, as the Tribunal held that there was no detriment. There was no allegation of breach of legal duty or commission of a criminal act. Whatever the Respondent did was not connected with any public interest disclosure by the Claimant, but simply because she refused to do what she had been properly instructed to do.[17]An aspect of a PIDA claim is whether the Claimant acted in good faith. There is no dispute that she did. She was opposed to raising funds for the RSPCA via the helpline but she did not reasonably hold a belief that these activities were illegal or in breach of any legal duty. In those circumstances the claim must fail. Even if the Employment Tribunal were wrong, it held that there was no connection between such conduct as the Claimant alleged and a PIDA matter. The Tribunal held as a matter of fact that the Claimant resigned because she was dissatisfied with the Respondent’s conduct in relation to the RSPCA. The law[18]The Employment Tribunal comprehensively set out the law and there is no dispute by the Claimant or her counsel Mr Ohringer. The law is set out in paragraph 2.1 to 2.6 of the Judgment. Discussion and conclusions[19]Problems of constructive dismissal are notoriously hard. Many Tribunals make decisions which cause difficulty for all levels within the appellate system: see Fuller v London Borough of Brent [2011] ICR 806 in the majority Judgment of Mummery LJ. Appellate courts must be diffident about overturning a Judgment of an Employment Tribunal on a conduct dismissal.[20]I can see no basis upon which it can be said the Employment Tribunal erred in law in its conclusions. It decided the matter against the Claimant as one of causation. The various legs on which the case had to run were all analysed and dismissed by the Employment Tribunal. The main issue was the proper construction of the contract. Reasonable instructions had been given to the Claimant which she disobeyed. She did not undergo the training. She did not suffer detriment as a result of what she said was a protected disclosure, but in any event the disclosure did not meet the contours of Part IVA, or s.103A, of the Act. In those circumstances I can see no error.[21]I then turn to the procedural issues in this case. I have attempted to have the matter of the new evidence, as it is called, determined by the Employment Tribunal, but the Tribunal has made a decision which was open to the judge to decide. In my view, the judge was right but that is not itself the subject of an appeal. The material which the Claimant sought to adduce at the EAT and then again by review to the Employment Tribunal was in existence at the time and therefore would fail to meet the test for review in rule 35,[22]The same is true of the test under Ladd v Marshall [1954] 1 WLR 1489 and Korashi before the EAT. It is not for an appellate court to become involved in matters which are properly in the hands of the Regulator. The dispute the Claimant has with her representative Mr Sykes does not, in my judgement, affect in any way the correctness of the Tribunal’s Judgment. Such issues as she wishes to raise must be raised in that channel.[23]I am very sorry that these proceedings in the EAT have been so protracted, but they have been caused by genuine attempts to try and deal with the many claims the Claimant was making and to have them dealt with at the appropriate forum. This application under rule 3(10) is dismissed, and with it the underlying appeal.