Appeal No.	 EAT/677/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 July 1999

Before
HIS HONOUR JUDGE H WILSON
MR B M WARMAN
MR D G DAVIES CBE

MR B HITCHCOCK	APPELLANT

VALE CASTINGS LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J PRETSELL
(Representative)
Farrar's Building
Temple 
London  EC4Y 7BD	
For the Respondents	PROFESSOR G A CHADWICK
(Deputy Chairman)
Vale Castings Ltd
Tylagarw
Pontyclun
Rhondda-Cynon-Taff
CF72 9YN

	JUDGE WILSON:	This has been the final full hearing of the appeal by the original Applicant, Mr Hitchcock, against the decision of the Employment Tribunal sitting in Cardiff on 16, 17 and 18 February 1998, which dismissed his application on the grounds of constructive unfair dismissal.  

1	The position was that the Applicant had given his evidence first and there had then been a submission of no case to answer.  That submission was considered by the Tribunal.  The risks of the course were recognised by the members of the Tribunal and stated in their decision.  Subsequently, the Chairman was invited to consult his notes and deal with what had been called an “agreement” which had been reached concerning the circumstances of the termination, just after the short adjournment on the second day.  

2	The Chairman had noted that it was agreed that the letter sent by the Applicant’s solicitor on 14 May 1997 was the effective way in which the employment terminated a resignation claiming unfair dismissal.  Having been invited to do so, the Chairman concluded that he now appreciated that the agreement which he purported to record in the first paragraph of the decision was incorrectly expressed, since the whole question was whether or not the resignation amounted to a dismissal.  The agreement actually made is the one quoted above and in those circumstances he resiled from paragraph 1 as we understand it.  

3	The Employment Appeal Tribunal gave leave for the matter to proceed to full argument.  Today, we have been assisted by Mr Pretsell on behalf of the Appellant and the Respondent’s case has been conducted by Professor Chadwick.  

4	The amended grounds of appeal state five points and Mr Pretsell dealt with them in two groups.  First of all he made submissions on grounds (c), (d) and (e).  Those grounds can be summarised as follows.  The Tribunal erred in law by wrongly acceding to the Respondent’s application and submission of no case to answer when on the documentary evidence there was a clear issue as to which party had terminated the employment.  It was incumbent upon the Employment Tribunal therefore to hear evidence from both sides.  Secondly, that the Tribunal fell into error by failing to have regard to or to appreciate the significance of the correspondence before it, and in particular, a letter from the Respondent’s solicitors to the Applicant’s solicitors which was at page 41 of the bundle.  Amongst other things, that letter states the following:

“The decision was taken to summarily dismiss your client immediately following the meeting on 10 May 1997.  The decision was taken by the directors.”

That, Professor Chadwick says, was a decision which was taken, but it was not acted upon.  It was, as it were, saved up for the suitable occasion.  There is no reference to it in the minutes of the meeting for that day, and it stands as something requiring explanation. 

5	Finally, on the first group of points, Mr Pretsell submits that the Tribunal wrongly assumed that there was no issue between the parties regarding whether or not there had been an actual dismissal.  In addition to the letter at page 41 to which I have just referred, there was in evidence a letter from the Applicant, saying that he had no choice but to regard his employment as terminated. 

6	Mr Pretsell’s second submission concerned the first and second points of the amended notice, namely that there were errors in law by failing to hear the evidence of the Respondent because that denied the Applicant the opportunity to cross-examine the Respondent’s witnesses.  Finally and compendiously, that it was wrong to accede to the application without putting the Respondent to its election.  That last point may be shortly disposed of because it is quite clear from the case of Ridley v GEC Machines Ltd that putting a party to elections is not something which should arise in this sort of case.

7	Professor Chadwick in response amplified the three grounds of appeal which are set out in the response to the amended Notice of Appeal which are set in the answer which was drafted by Mr Britain, dated 1 November.  With regard to the first three points of the amended Notice of Appeal, it is submitted on behalf of the Respondent that it was accepted that the Industrial Tribunal acceded to the application of no case to answer and was correct so to do.  So far as points (d) and (e) are concerned, it is stated that the Respondent’s case is quite simply that the Industrial Tribunal did appreciate the significance of the correspondence before it and that the Respondent Company denied that the conclusion it reached had been reached erroneously.  

8	That answer was drafted and presented before the notes of the Chairman of the Industrial Tribunal had been received and of course, the whole matter has to be regarded in the context of that response.  It seems to us, quite clear from the evidence, that there was a great deal that needed explaining in this case, one way or another, and we can do no better than to quote what was said in the case of Ridley v GEC Machines Ltd in the judgment of the President, Mr Justice Phillips.  At page 196, commencing at letter B, the President in that case observed that:

“the case was never fully investigated.  At first sight that might sound odd because, of course, the onus of proof lay upon [the Applicant]… to show that he was dismissed, and it may be asked, why was it necessary for him in order to do that to be able to pray in aid evidence other than himself or any witnesses he chose to call?  But in reality the position is somewhat different in this case, where what is being alleged is constructive dismissal.  In effect the [Applicant] is saying that he was driven out by the conduct of the employers.  The test varied from time to time, but is now firmly established.  However it is put, in order to understand the whole position it is very often necessary to see what is said on the employers’ side.  Only then can the whole picture be seen.  Furthermore, as the appeal tribunal has said more than once in different classes of case, the cases which are heard by industrial tribunals, are very different form ordinary case heard by regular courts, and the litigation of necessity takes – or certainly at all events ought to take – something of the form of an inquiry; so that ordinary customary legal procedures need to be applied with that requirement in mind.  It is really essential that at the end of the day the parties should feel that the whole of the facts have been investigated.  Particularly of course is that so in a case such as this where the complaint is one of constructive dismissal.”

9	In our view, that is particularly true of this case, bearing in mind also the overall requirement stated in the decision of Walker v Josiah Wedgwood & Sons Ltd that the prime purpose of the Tribunal is to get at the truth to establish the fairness or unfairness of the proceeding.  The less procedural bars there are in the face of that, the better.

10	We think that, while the Chairman quite clearly applied his mind to the question of whether or not the case before him was a suitable one for him to accede to a submission of no case, he and his colleagues fell into error.  The application of no case, and submission of no case, cannot be prevented by a Tribunal, but it is rarely to be acceded to and certainly, this was not one of those cases.  We can do no better than to quote from the judgment of the Employment Appeal Tribunal which gave leave for the matter to proceed to today:-

“It is apparent from the correspondence to which we have been referred that the Respondents are also alleging that they directly dismissed Mr Hitchcock.  So it is a case where it is alleged by Mr Hitchcock that he was unfairly constructively dismissed, and by the Respondents that there is evidence that they had dismissed him summarily before that.  That is on the face of it.  Upon examination and cross-examination, what appears on the face may change.”  

That is the point as the Employment Appeal Tribunal went on to say 

“on a limited perusal of the correspondence, it appears that the Employment Tribunal who heard the case, did not have it clearly in mind at the time when they came to the conclusion, that the Applicant’s claim had failed.”  

11	We share that view and we find that it is arguable that points of law and issues of fact, which would have arisen, and do arise on perusal of the correspondence, were not properly ventilated or considered by the Employment Tribunal.  In those circumstances, we allow this appeal and we direct that the matter be remitted to a differently constituted Tribunal for a full hearing of the arguments and cases on both sides.