Appeal No. EAT/234/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 11 November 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MRS E HART

	MR A D SCOTT

MRS J C MURRAY     	APPELLANT

WEIDMULLER (KLIPPON PRODUCTS) LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR J FITZPATRICK
(Representative)
Kent Law Clinic
Eliot College
The University
Canterbury
Kent
CT2 7NS

	

	JUDGE HULL QC:	This case is in our list under our Practice Direction for us to see whether we can discover any point of law in the case which is fairly arguable.  Our jurisdiction is purely statutory and under the Employment Protection (Consolidation) Act 1978, we are entirely limited to points of law.  We have no jurisdiction whatever over the facts.  The facts are the sole preserve of the Industrial Tribunal, which is required to sit as, it has been said, an industrial jury making use of its own knowledge and common sense, and of course seeing the witnesses, which we do not, and regulating its own procedure, so far as it is entitled to, which is a very wide discretion under the rules.

	In this case, Mrs Murray was employed by the Respondents, Weidmuller (Klippon Products) Ltd who have works at Sheerness, Kent.  She was employed as a Production Planner.  She began her employment in 1989 as a temporary worker and on 1 January 1990 she began to work as a permanent worker.  Her immediate supervisor, at the material time, was a Mrs Cromarty.  Mrs Quick was her Manager and had the title of Production Planning Supervisor.  Mrs Quick reported to Mr Read, the Production Planning Manager.  Those are the people who come chiefly into this story, though there is a Mrs Croall who was a Trainee Works Study (as her job is described).  The employment ended on 23 August 1993 and Mrs Murray complained that she had been constructively dismissed.  She had, in fact, resigned on that day and what she said was that her life had in various ways been made quite impossible by matters which really amounted to repudiatory behaviour by the employers.  

	Mr Fitzpatrick, who appears today for her, says that one must look at the employers as a whole.  He referred to Mrs Quick, her Production Planning Supervisor, who it was said was the lady of strong and somewhat combative personality.  

	The Industrial Tribunal, to whom she complained of unfair dismissal, asking for reinstatement or compensation, spent no less than three days in considering the case on 8 November 1993, 10 January and 11 January 1994.  They sat at Ashford under the Chairmanship of Mrs Cooney with two Members and they promulgated their decision on 19 January.  They found that this was not a case of unfair dismissal at all.  It was not dismissal at all.  They found that Mrs Murray had resigned.  We will not read the whole of their judgment, we have read all that is said there and, of course, all that is said in the Notice of Appeal which now comes to us.

	After setting out some of the facts, indeed, many of the facts, as one would expect, after such a long and thorough enquiry, they said in paragraph 4:

		"4  ...... The applicant complains that her resignation, which we find took effect on 23 August 1993, was brought about by a breach by the respondent of the implied term that an employer will not, without good cause, conduct himself/herself in a manner calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence which must exist between employer and employee". 

	That is undoubtedly the law.  Of course, when something is put in such very general terms there are a great many limitations which have to be put on the width of the doctrine.  There are all sorts of matters which, to a sensitive person, might damage confidence and trust, for example rough behaviour or inconsiderate behaviour.  They may have that effect but of course, it means something far more serious than that.  A more legalistic way of putting it would be to say that there must be conduct indicating an intention no longer to be bound by the terms of the contract or a vital term of the contract.  Examples might well be something such as dishonesty or untruthfulness on an important matter by one party or the other.  

	So what the Tribunal said there was entirely correct in law.  They went on to give details, the unhappy differences which had existed between Mrs Quick in particular and the complainant and they dealt with the behaviour of Mr Read.  It was alleged that he had failed to put matters right and to give Mrs Quick the correction which she well deserved in all the circumstances.  They went into all that.  And they say that on 23 August, having had an altercation with Mr Read she, in the view of the Tribunal, formed the intention on that day of resigning and she took out her clock card and gave it to Mr Read saying, "this means revenge" which does, if one may say so, show how serious matters were, so far as Mrs Murray was concerned.  They record that:

		"12  The applicant has been at pains to plead throughout the hearing that the disagreement between herself and Mrs Quick was more than a mere clash of personalities. [And they say] We disagree.  Mrs Quick was undoubtedly a moody, somewhat quirky and often unreasonable manager, but when we examine how these characteristics impacted upon the applicant's employment, we have to conclude that Mrs Quick's behaviour, judged reasonably and sensibly was not such that the applicant could not be expected to put up with it.  A continuing factor in the traumas and upsets between these two employees was the applicant's tendency to overreact to Mrs Quick's management style".

And they go on in paragraphs 14, 15 and 16 dealing with certain incidents:

		"14 ..... We have concluded that these amounted to clashes of forceful personalities,  Mrs Quick lacking the diplomacy and common sense to see how her manner was affecting the applicant, and the applicant lacking the control and foresight to constrain her anger at Mrs Quick's intervention and her manner.  We do not doubt that this had a devastating effect upon the applicant but we find that that was out of all proportion to what had occurred. 

		15  Mr Read's attempt to defuse the situation after the incident of 17 August was well intentioned, but foundered upon the applicant's perception that he had failed to read the riot act to Mrs Quick.  Mr Read should perhaps have been more forceful in explaining to the applicant that she must work as one of the team and have made it plain to her that he was not going to encourage her to defy her manager.  On reflection however, this should have been obvious to the applicant.  It may be that the respondent's management could and should have endeavoured to give Mrs Quick some management training, but having viewed the evidence as a whole we doubt if that would have succeeded in pouring oil upon the troubled working relationship of the applicant and Mrs Quick.  It is of course axiomatic that a manager must be allowed to manage and in doing so may well offend the sensitivity of some employees.

		16  For these reasons [they say] the applicant has failed to satisfy us that her resignation from the respondent's employment on 23 August 1993 was a resignation in circumstances such that the applicant was entitled to terminate her contract of employment without notice by reason of the employer's conduct [and  they refer, quite correctly, to what is said in the relevant part of section 55 of the Act of 1978]".

Now we of course, have read, each of us, the whole of those Reasons given by the Industrial Tribunal, of which I have just read part.

	Looking at it as a whole, it appears to us that these are reasons which one might perhaps expect after such a long and careful enquiry, correct in their references to the law and full of common sense in their application to the facts.  None but a Tribunal of fact can decide, when there is a clash of personalities, as here, where the truth lies, where common sense lies and what is the realistic way of looking at what has happened.  Is it conduct so bad by the employers that it can be said to amount to a breach of contract of a serious sort, conduct of such a sort that the employee is entitled to say, "I can treat this as repudiating the contract and when I resign it is a fact that I am constructively dismissed" or is it not? 

	This Tribunal certainly did not think that the employers' representatives were perfect.  They made some serious criticisms of Mrs Quick and they certainly were not entirely satisfied with Mr Read's behaviour and would be able to make, from their experience as an industrial jury, certain criticisms of him.  But, having taken all that into consideration, in what appears to us to be a very fair way, they came to the conclusion that the reality of the situation was not that Mrs Murray had been dismissed, but that she had resigned and on the face of it, that is as I say a decision which appears to be entirely correct in law, and so far as the facts are concerned, which as we say are entirely for the Industrial Tribunal, full of common sense and reason, although not having seen the witnesses, not having read all the documents and not being entitled, as a matter of law, to look into it, we cannot say any more than that.  

	Now we turn to what is said by Mrs Murray put forward on her behalf by Mr Fitzpatrick.  Mr Fitzpatrick sticks, quite rightly, to the statement of grounds.  He says first and foremost that there was a procedural error by the Tribunal.  At the opening of the case the Tribunal, knowing only what they had been able to read at that stage, had an application made to them by the Applicant.  She said she wanted to call four witnesses, Mrs Cromarty, Mrs Croall, Mr Read and Mrs Quick, whom I have referred to and she wanted to call them separately and each in the absence of each of the others.  

	That is a quite exceptional application.  In the civil courts in this country and of course, an Industrial Tribunal, in so far as it is a court, is a civil court, it is quite exceptional and contrary to all ordinary practice for witnesses to be called in each other's absence.  I will not go through all the reasons of inconvenience but amongst other things, since these witnesses to be called apparently at that stage by Mrs Murray were her witnesses, she must have been putting them forward as witnesses of truth.  

	No party is entitled to call a witness and then say, "this witness has been inaccurate, this witness has been untruthful".  It is a fundamental principle that a person who calls a witness puts them forward as a witness of truth and asks them questions directed to their own case putting forward truthful evidence.  Accordingly, in those circumstances, it is hard to see what can justify, apart from a request from the other side, calling the witnesses separately so that they do not hear each other's evidence.  There is a great deal of inconvenience in taking that course. 

	So it was an exceptional application, but it was apparently, according to the Applicant, acceded to.  On the next day of the hearing there was a change of intention, so far as the Respondents were concerned.  The Respondents said that Mrs Cromarty having been called, they would like to call the other three witnesses, whom I have referred to, themselves.

	It was a suggestion which, on the face of it, was very favourable to Mrs Murray as a lay person, the Respondents being represented.  It is a very favourable thing if the other side call your witnesses and any advocate of any experience knows what an excellent moment that is, if the other side says they want to call one of your witnesses, because it means, first of all that they take the burden of adducing the evidence, and then that you, yourself, having had one of the witnesses called, are entitled to cross-examine that witness.  In other words, if anything has been omitted in your favour, you can ask leading questions to adduce it. 

	But the Tribunal allowed that to happen.  Apparently Mrs Murray was asked about it and she tells us now that she felt confused and intimidated.  Why she should feel intimidated one cannot imagine.  It was an application, on the face of it, which was very much in her favour and probably, and this is simply reading between the lines and speculating, it may probably have been that on the first day, as an inexperienced advocate, she had trouble keeping within the rules and adducing the evidence that she wanted from her witness and it was obvious to the Tribunal that it would be more favourable to her if the witnesses were called by the other side so that the burden, and it is a serious burden of adducing their evidence in-chief, which an ordinary lay person always finds difficult, would be discharged by the other side.  At any rate she did agree to it although she says she was confused and felt intimidated.

	So the witnesses were called but the original arrangement under which they were to give evidence in each other's absence was not adhered to.  Of course, that follows almost as night follows day unless the Respondents wanted the same thing, because when they were calling their witnesses it was for them to say whether they thought that a witness called by them might be intimidated or might, for some other reason, not wish to give evidence in the presence of one of the other witnesses.  

	So quite naturally, and apparently without objection, all these witnesses were called in each other's presence and one asks oneself why should they not have been.  Again, we are not told of any solid reason apart from Mrs Murray's feelings about the matter.  At any rate, they were all called and therefore Mrs Murray was in the beneficial position of being able to cross-examine them and ask the witnesses any questions which she wanted to.  

	So that is our immediate impression of these arguments which are put to us.  

	Then the third point is that the Industrial Tribunal erred in law by reaching a decision which no reasonable Tribunal could reach on the evidence, and certain findings are set out.

	That is a contention which can only be judged fairly by looking at the decision as a whole and reading it.  It is, of course, a contention of law.  It appears to us, having read this decision and looked at the material which is laid before us and having heard what is said to us by Mr Fitzpatrick, that that contention is wholly ill-conceived.  It was precisely and exactly within the range open to this Tribunal, having heard all these witnesses, to say whether this was in fact misbehaviour on the part of the employers' representatives so serious that it amounted to a breach of the contract or whether they were to say (as they did) that this was a case where there were certain clashes of personality and a certain amount of blame to be attached to all those who were criticised in this case; but it did not amount to anything like a breach of contract.  It amounted to the sort of thing which unhappily often happens where people are working together or trying to work together.  There are differences:  there is a lack of consideration; there may be rudeness or abruptness or tactlessness, matters of that sort.  This Tribunal seems to us to have addressed itself, as we say, in a commonsense and balanced way to that and to have reached conclusions which were within their provenance and which we cannot, as a matter of law or in any other way, criticise.  They heard the witnesses and they reached those conclusions.

	So having listened to what is said by Mr Fitzpatrick and having read all that was said by the Tribunal and of course the application and the other documents which are before us, we have come to the conclusion that there is here no error of law on which an appeal can lie to us and therefore, it would be wrong for us to allow this appeal to proceed.  It is bound to fail and we must dismiss it at this stage and we so order.