Appeal No.	 EAT/1475/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 May 2002

Before
THE HONOURABLE MR JUSTICE WALL
MR J HOUGHAM CBE
MR P R A JACQUES CBE

MR D G CLULEE	APPELLANT

THE LAW SOCIETY OF ENGLAND AND WALES	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING EX PARTE

Revised

	APPEARANCES

For the Appellant	MR D F CLULEE
(the Appellant in person)	

THE HONOURABLE MR JUSTICE WALL

1	This is the Preliminary Hearing of an appeal by Mr Derek Clulee against the decision of the Employment Tribunal held at Birmingham on 30 August 2001.  By his form IT1 Mr Clulee had alleged constructive unfair dismissal, no itemised pay statement and unauthorised deduction of wages against his employer, The Law Society, by whom he was employed as a gardener.  

2	The Originating Application reads as follows, it is dated 19 December 1999:

“Nov 1999 itemized pay statement not provided on request. Unauthorized deduction of wages/refusal to confirm.  Periodic verbal abuse by line manager, together with a series of premeditated and provocative minor incidents of harassment.  Failure of the Law Society to provide me with reasonable support to enable me to carry out my work without disruption or undue harassment.  Frequent changes to my contract of employment (under duress), have sought to destroy or seriously damage the basic level of trust and confidence, between employer and employee.  The repudiation of my successful pay appeal of 30/4/99 and the refusal to honour the subsequent pay award despite an assurance that the “decision” relating to these items was final.  The Law Society has subsequently tried to ignore my letters sent regarding the subject of pay or overtime rates due to me.  The Law Society has also failed to honour a verbal agreement to provide me with a minimum of 28 hours of overtime per month in respect of my availability for extra society duties.
I believe that I have been the victim of inconsistent treatment at the hands of the Law Society, who have tried to demean my efforts and achievements as a senior gardener.  They have failed to follow a process of fairness towards me and have deprived me of “pension rights” at a critical time.”

The Law Society put in a substantive defence to those allegations which, in broad terms, was a general denial.  Mr Clulee complains that in relation to one aspect in particular they were permitted subsequently to change the defence because in paragraph 12 they deny that his contract of employment had been frequently changed as alleged or at all.  That is a matter to which we shall refer back later.  The Tribunal provided Extended Reasons for its decision dismissing Mr Clulee’s claim, those reasons being dated 10 October 2001.  

3	A point which we need to make at the outset of this judgment is one which is not always fully appreciated by those who come to this Tribunal acting in person.  It is, of course, that the Employment Tribunal hears the witnesses, forms an impression of the witnesses and assesses their credibility.  That is not something for us.  We are bound by the Tribunal’s assessment of witnesses unless it can be shown in some way that their assessment was perverse or there was no material upon which they could make the assessment that they did.  We think it is important in this case to look immediately at paragraph 4 in which the Tribunal makes a particular finding on credibility.  It is in these terms:

“We have heard from the applicant and from Mrs Anita Gibbins (Human Resources Officer), and Mr Randall (the applicant’s line manager).  We have read their lengthy and detailed statements.  The evidence in some areas is in stark conflict.  We find that Mrs Gibbins was a frank and honest witness, who was consistent in her evidence under robust cross-examination, and questioning by the tribunal.  We find that Mr Randall was an honest witness who did his best to recollect the facts.  We find that Mr Clulee was not a reliable witness, his evidence being inconsistent at times; that he was evasive in his answers; and opportunistic when giving his version of the facts.”

No doubt that is something which Mr Clulee does not accept but he must appreciate that we are bound by that analysis unless it can be shown in some way to be wrong in law.

4	Having given that assessment the Tribunal then went on to set out the basic facts in relation to Mr Clulee’s appointment.  He was employed on 14 December 1990 as a gardener/handyman working sixteen hours per week on a two day basis with conditions as to overtime which, for this purpose, need not concern us.  As a permanent employee he was entitled to join the pension scheme but did not do so.  The pension scheme was set out in a booklet which clearly showed that it was available to permanent employees only.  The staff handbook set out a grievance procedure.  

5	The Tribunal found that there was a meeting on 13 November 1991 in which Mr Randall recommended to Mrs Gibbons that Mr Clulee’s basic hours should be extended to twenty one hours per week.  The terms agreed were set out in a letter by Mrs Gibbons on 14 November 1991.  These included a variation in the rates of payment for overtime.  The Applicant said that overtime or the payment of it was not discussed at the meeting of 13 November 1991 and that only after he received the letter did he complain of the variation to Mr Randall who then offered a guarantee of twenty eight hours overtime per month.  Both Mrs Gibbons and Mr Randall say that overtime was discussed at the meeting.  Mr Randall says that he gave no guarantee of any overtime at all.  The Applicant did not use the grievance procedure, he says that as he had not sufficient continuous employment to attract employment rights he was too concerned to do so, and thereafter worked under the new terms and conditions.  The tribunal said:

“We prefer the evidence of Mrs Gibbons and Mr Randall and find that overtime was discussed at the meeting, and that no overtime was guaranteed.”

6	The Tribunal, in the next few paragraphs, go on to deal with what is, I think, at the heart of Mr Clulee’s complaint.  I therefore will read these paragraphs out in their entirety:

“7	In fact the respondent had been mistaken in offering Mr Clulee permanent employment, as this would exceed the establishment figure for permanent employees.  This came to the attention of Mrs Gibbins in March 1992.  On 25 March 1992 she had a meeting with Mr Clulee and explained the situation to him.  We accept Mrs Gibbons’ evidence that she was faced with three alternatives; the first was to seek to increase the establishment of permanent employees, which would take about 4 months to process, with very little chance of success, and she rejected it; the second was to convert the position as a permanent employee to that of temporary employee; and the third was to dismiss Mr Clulee, who at this time had not sufficient continuous employment to attract employment rights with regard to unfair dismissal.  We find that there was a full discussion, including the fact that Mr Clulee would not be entitled to join the pension scheme as a temporary employee, but would exceptionally attract the increments of a permanent employee.  After consideration Mr Clulee accepted the temporary status, and has made no complaint about it.  Mr Clulee says that a note dated the 31 March 1992 of the meeting has been deliberately falsified by Mrs Gibbins to include the fact that the pension scheme had been discussed.  We find that the note is accurate.
8	In September 1997 it was decided that all employees on temporary contracts with over 2 years continuous service should be transferred to permanent contracts.  This included Mr Clulee.  He was offered and accepted the permanent employment on 30 September 1997.
9	We do not find that any variation in the contract of employment, or the terms and conditions under which Mr Clulee worked can be criticized.  We recognise that the respondent made a basic error in offering Mr Clulee employment as a permanent employee, when it was not entitled to do so, but the subsequent negotiations were done in a fair manner, with every opportunity being given to Mr Clulee to forward his point of view.  He could use the grievance procedure if he thought that he had been [hard] done by, which he did not use.”

7	In his Notice of Appeal, in the skeleton argument which Mr Clulee has put forward and in what he has said to us today, it is clear that this issue, in his view, is at the heart of his decision to leave the Respondent’s employment and therefore at the heart of his case for constructive dismissal.  This is how he puts it in paragraph 4 of his skeleton argument put before us today:

“Following on my protest over the discrimination, overtime pay cut, I was subsequently “victimised” on 26/3/92.  Suffering a detriment due to the Law Society imposing a “Temporary Contract” on me which removed my option to join their Staff Pension Scheme.  This discriminatory action was taken during a period when the Law Society were openly encouraging ALL staff to join their Pension Scheme.  I submit that it was important for the Employment Tribunal to determine on what date Law Society introduced such discriminatory “entry qualifications” into their Pension Scheme, relative to the way in which I was being treated at that time.  I therefore seek Orders for:- A/ Further particulars and discovery to provide such information on their Pension Scheme, B/ Discovery to determine if any other employee was treated like myself.  Following the Law Society proposal to impose a “Temporary Contract” upon me on 26/3/92 I submit that they pursed a “sequence” of temporary contracts up to 30/9/97, when they reverted back to my ORIGINAL Contract of Employment.
By “implication” TERMS are the same as that which were previously stated or enjoyed by the Worker.”

He then makes a reference to a decision of this Tribunal presided over by Mr Justice Garland in Hogg v Dover College [1990] ICR 39.

8	Hogg v Dover College was a case in which a full-time teacher fell ill and was told by the headmaster of the school that his ill health made it impossible for him to continue as departmental head.  The school therefore offered the teacher fewer teaching periods at a considerably reduced salary.  The teacher took the view that that was tantamount to a dismissal but that pending his claim of unfair dismissal he would continue to work at the college on the terms offered  On his complaint of unfair dismissal an Industrial Tribunal found that the letter did not amount to a summary dismissal but rather that it was a statement that his employment would continue on different terms and that by continuing to work at the college he had accepted the employer’s repudiation of the contract of employment and that he had not been constructively dismissed.  He appealed.  This Tribunal allowed the appeal saying that the effect of the letter was to terminate the contract between the Applicant and his employers and that the Applicant had been dismissed.  Alternatively, the fundamental changes in the terms of employment were such that the Applicant had been constructively dismissed and that he could not be said to have affirmed by his subsequent conduct what was a totally different contract of employment.  Accordingly the case would be remitted to a Tribunal for further consideration.  Mr Clulee relies on that decision.

9	It seems to us however, that the fundamental difference between Hogg v Dover College and Mr Clulee’s case is the clear finding by the Tribunal that in 1992, after consideration and with the options being put to him, Mr Clulee accepted temporary status and thereafter made no complaint about it.  We are, of course, bound by the Tribunal not only finding that, but also by their finding that the record in relation to the Respondent’s actions at that time is accurate and above board, ie the note of the meeting dated 31 March 1992 is correct.  As I indicated in the passages I have already read out, the Tribunal clearly found on the facts that any variation was not capable of being criticised.  The Tribunal recognised the error which the Law Society had made in offering Mr Clulee employment on a permanent basis, but, as they found, the subsequent negotiations were fair.  Every opportunity was given for Mr Clulee to advance his point of view and there was a grievance procedure which he chose not to use.

10	The Tribunal then went on to deal with a number of aspects of the relationship between Mr Clulee and the Law Society which for the purposes of this judgment we do not think it necessary to go over in detail.  A number of findings of fact were made about Mr Clulee’s behaviour, by which we are, of course, bound.  Having looked at the allegations made by Mr Clulee in some detail and on the findings of fact made by the Tribunal, the Tribunal came very firmly to the view that Mr Clulee had not made out his grounds.  

11	We have no desire to cause any further distress to Mr Clulee than that which he is already no doubt undergoing and therefore I do not think it would be helpful to put on the record in this case the findings which the Tribunal made about his conduct.  They concluded in paragraph 24 of their reasons:

“In order to claim constructive dismissal it must be shown that the employer has acted in a way to breach a fundamental term of the contract of employment, so that the employee can consider that the contract has been repudiated, and accepts the repudiation, and resigns, expeditiously.  In this case we find the first limb of his test is not satisfied.  We cannot find on the facts before us that the employer is in breach of the implied term of mutual trust and confidence as claimed by Mr Clulee.  There is no constructive dismissal.  As there is no dismissal it cannot be unfair.”

12	The Tribunal then went on to deal with the question of unlawful deduction of wages.  It was critical of the fact that the pay statement which Mr Clulee had been seeking was, as they called it, “deplorably late” but nonetheless it satisfied the requirements.  The Tribunal concluded by stating that for the avoidance of doubt they rejected entirely Mr Clulee’s allegations that documents put before the Tribunal had been fabricated either at the time of filing or for the purposes of this hearing.

13	Those are all findings of fact which, of course, are relevant to the issue of constructive dismissal.  The Tribunal plainly understood the law relating to constructive dismissal and in our judgment applied it to the facts.  The only point of law which arises is that which I have already dealt with in relation to the pension.  As we indicated earlier, the findings of fact which the Tribunal made and which they were entitled to make, clearly render that argument one which is not open to Mr Clulee.

14	Mr Clulee also put forward an allegation of bias against the Tribunal and in the way that these matters are dealt with.  Those allegations were sent to the Chairman for consideration and response.  It is always, of course, a difficult exercise dealing with allegations of bias, because no doubt Mr Clulee felt, as he indicated, that he was hurried and that he was threatened with orders for costs.  The Chairman has set out in some detail the timings of the respective evidence at pages 7 and 8 of our bundle.  It is plain to us from those timings that there was ample opportunity for Mr Clulee to get his case across.  We have no reason to doubt the Tribunal’s assertion that it read all the documentation carefully.  As we have already indicated several times now, and the Tribunal Chairman says, the assessment of credibility and reliability was undertaken carefully, and it was, of course, unanimous.  The one thing I think one can be sure about in Employment Tribunals is that the two lay members (the ‘wingers’) are themselves extremely forthright and independent people.  They would not agree with a Chairman if they did not think that what the Chairman was saying was accurate in answer to allegations about the Chairman’s conduct.  

15	The Chairman deals in detail with all of the allegations.  In particular, at the end, he deals with a complaint that Mr Clulee made to us this morning in relation to an equal pay and sex discrimination claim.  The Chairman points out that the application to extend the current proceedings to those matters was heard by a different Tribunal with a different Chair.  It was found to be out of time, as indeed it inevitably, we think, it would have to be.  There was a review of that decision which was upheld and no subsequent appeal.  The Employment Tribunal accordingly had to deal with the matter on the material they had before them.  When one looks at their reasons and the care with which they went through the facts and the detailed findings of fact that they made, in our judgment they do not begin to warrant an allegation that the hearing was unfair or that the Tribunal was biased.  Therefore we do not think the decision can be attacked properly on that ground.

16	In our view therefore, there is really only one point of law in this case.  Mr Clulee had advanced it fully this morning but we find it to be without foundation.  In those circumstances, it seems to us there is no purpose in allowing this appeal to go forward to a full Tribunal.  There is not an arguable point of law.  The appeal will therefore be dismissed at this stage.