Appeal No.	 EAT/919/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 November 2000

Before
HIS HONOUR JUDGE J R REID QC
MISS D WHITTINGHAM
MR N D WILLIS

MASH/ROE GROUP LTD	APPELLANTS

MR N CHAMBERS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellants	MR DANIEL BARNETT
(of Counsel)
Messrs Hogan Lisle
Solicitors
28A York Street
London
W1H 1FE	

	JUDGE REID QC:		This is an ex parte preliminary hearing on an appeal by Mash/Roe Group Limited against a decision of an Employment Tribunal held at London (South) following a hearing on 18th January 2000 and consideration of the matter in Chambers on 20th March 2000. By that decision the tribunal determined unanimously that the applicant, Mr Chambers, had been unfairly dismissed.

1.	Mr Chambers had been a driver for Mash/Roe Group, which is a wholesale fruit and vegetable delivery business operating from the Nine Elms site in South London. He had been employed there since July 1997 and the last day that he worked there was the night of 5th/6th July 1999 when he walked out in circumstances which were held by the tribunal to amount to constructive dismissal, because, in the view of the tribunal, the company was in breach of its obligation of mutual trust and confidence. The tribunal held that in the circumstances there had been a heat of the moment withdrawal, and it was confirmed as a dismissal when a fortnight later, following a telephone call, the company refused to have Mr Chambers back.

2.	Since this matter has got to go to a full hearing the less we say about it the better. 

3.	The Notice of Appeal takes six points. I think it is appropriate to begin with the last of them, although this was not a point which was particularly stressed by Counsel on behalf of Mash/Roe. That sixth point is in these terms:

“Perversity/Inadequate Findings
6.6.1	it preferred the evidence of the Respondent to that of each of the 4 witnesses for the Appellant, without giving any reasons for so doing and/or contrary to the evidence.”

4.	The background, so far as this is concerned, is that the tribunal, from its findings, clearly preferred the evidence of Mr Chambers to that of the four witnesses on behalf of Mash/Roe, although there were clearly very substantial issues of fact between them. The tribunal gave no reasons for doing so and the tribunal did so against the background that Mr Chambers was a gentleman who had mental health problems; that not long before the hearing before the tribunal he had made serious allegations against Mash/Roe which he had then withdrawn by a solicitor’s letter, which blamed the unfounded allegations on their client’s mental health; that Mr Chambers had in his IT1 begun with two matters which were demonstrably inaccurate: first, that he had never been given a statement of terms and conditions, and secondly, he had not had any disciplinary warnings during his employment. 

5.	Against that background we take the view that it is at least arguable that the Appeal Tribunal cannot tell whether the findings are inadequate or are perverse: arguably the findings are so inadequate that it is impossible to tell whether or not they are perverse, and in those circumstances, it seems to us, that on that short ground it would be necessary for the matter to go to a full hearing and for the Chairman’s notes to be provided. 

6.	However, there were, as I have indicated, five other points. The first of those was a point of law in that it is said that the tribunal erred, as a matter of law, in taking the view that the requirement imposed of mutual trust and confidence required the appellant company to take positive steps rather than simply to refrain from doing anything which might be in breach of that obligation. It is said that in those circumstances the tribunal erred in law and that the matter should therefore go to a full hearing. It seems to us that there is an arguable point in relation to that, given the nature of the matters which the tribunal relied on and given that it does appear at least arguable that the tribunal were making a positive finding of an obligation on the employer to do various things for the benefit of the employee. 

7.	We do not think that the remaining grounds set out in paragraphs 6.1.2 and 6.1.3 of the Notice of Appeal should go to a full hearing.  So far as 6.1.2 is concerned, it is asserted that the tribunal was self-inconsistent in holding as a matter of fact that Mr Chambers was prevented from taking his full two weeks’ annual leave, when the tribunal had also found that he had agreed to forego two days of his two weeks’ holiday in consideration of enhanced payment. It seems to us that that is a perfectly good finding of fact, because it is clear what the tribunal was finding there was an over-persuasion. But that in fact is an irrelevance in terms of what goes to the full hearing, given the fact that the matter is going to the full hearing in relation to paragraphs 6.6. So far as 6.1.3 is concerned, this was introduced as being a proposition of law that a respondent employee who was willing to continue to work for an appellant employer could not have been constructively dismissed by reason of a repudiation of the duty of mutual trust and confidence. This, in our view, is plainly wrong, because if that were so, it would never be possible for an employee to waive a breach of the duty of mutual trust and confidence or to affirm a contract of employment following such a breach, because, ex hypothesi, there would then never have been such a breach. 

8.	Turning then to the second of the grounds of appeal ‘Heat of the Moment’ Resignation. It seems to us that in relation to this that there is an arguable point of law as to whether as a matter of law one can apply the law relating to heat of the moment resignations either to impose on an employer an active duty to investigate or to treat the resignation as not being properly intended as a resignation after a period of some two weeks, during which the employee has been offered other employment elsewhere. It seems to us that there is an arguable point of law as to whether after such a length of time it cannot be said that the supposed resignation was in truth no resignation at all. We therefore propose to allow the whole of the matters raised in paragraph 6.2 of the Notice of Appeal to go to a full hearing.

9.	So far as 6.3 is concerned, this relates to the tribunal’s finding that there could not in the circumstances be a dismissal which was fair or potentially fair within the meaning of section 98(1)(b) of the Employment Rights Act 1996, because Mr Chamber’s conduct “had not given rise to either an investigation or any disciplinary action which might have led to his dismissal”. That is elevating a useful generalisation to the status of a proposition of law. What was said by Arnold J, as he then was, in British Home Stores Ltd v Burchell [1978] IRLR 379, where he said at page 380, paragraph 2 was:

“… And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate, on the final at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. …”

	The limitation in the passage appears to have been lost by the Employment Tribunal in this case. It does not require that in every case some investigation should have taken place. In the circumstances of this case, where the employee had torn up the complaint's book and walked out, there was no opportunity for any investigation to take place. In those circumstances, it seems to us, it is at least arguable that section 98 is applicable not to this case, notwithstanding that the employer had not carried out any investigation.

10.	So far as the next ground of appeal is concerned, the tribunal did not deal with the question of whether or not the employee caused or contributed to his dismissal under section 123(6) of the 1996 Act. The tribunal were invited to do so, but they make no reference to it at all in their decision. They appear to be leaving the matter to be determined at the stage of remedy. In our view, it is at least arguable that the question of contributory fault should have been dealt with at the liability stage and is not something which arises only at the stage of determining the remedy which is available to the employee.

11.	Ground 6.5, on the other hand, which complains that the tribunal did not make any finding as to whether the employee’s contract of employment would have been frustrated in any event in August 1999 when he was compulsory admitted for treated under section 2 of the Mental Health Act 1983, is not something which arises at the stage of making on a finding on liability. The question of whether or not the contract would have been frustrated in any event in August, is something which only arises at the stage where one is determining the extent of the compensation or other remedy to be available to the employee and is not something which is properly, in our judgment, determinable at the earlier stage. We do not think therefore that 6.5 of the grounds of appeal is something which should proceed to a full hearing.

12.	We will therefore direct that the matter goes to a full inter partes hearing on the various grounds which I have indicated in the course of this judgment. We will also direct that the Chairman’s Notes of Evidence be made available. We think that the appropriate category for this is Category C and that the appropriate hearing time is one day. We also give leave to amend the Notice of Appeal within 14 days so as to bring the Notice of Appeal into line with the various points which say are proper to go to a full hearing.