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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Harris v. Siddique (t/a McDonalds Barnet) [2003] UKEAT 0048_03_2105 (21 May 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0048_03_2105.html Cite as: [2003] UKEAT 48_3_2105, [2003] UKEAT 0048_03_2105

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APPEARANCES

 

For the Appellant	MR G HARRIS Representing on behalf of the Appellant


 


JUDGE BIRTLES

1. This is an appeal from the decision of an Employment Tribunal sitting at Watford on 24, 25 and 26 September 2002. The decision was entered in the Register and sent to the parties on 21 October 2002. The Chairman was Mr V J Adamson. The Employment Tribunal unanimously decided that first the Applicant's complaint of detriment contrary to Section 47B of the Employment Rights Act 1996 was dismissed and second that the Applicant's complaint of unfair dismissal was dismissed.
2. The Employment Tribunal set out in lengthy Extended Reasons its decision and the reasons for coming to that decision. Miss Harris was employed by the McDonalds' chain of restaurants on 12 June 1997. It is not necessary to set out the history of that employment. Substantial findings of fact are made in paragraphs 6 - 25 of the decision. Suffice it to say that in 2000 the Finchley McDonalds' restaurant where Miss Harris worked was transferred as a franchise to the Respondent, a Mr Usama Siddique who traded as McDonalds Barnet.
3. There were a number of disagreements between Miss Harris and Mr Siddique relating to the terms and conditions of Miss Harris' employment. It culminated in Miss Harris resigning on 12 November . In fact she had decided not to return to work on 9 November 2001 and on12 November 2001 she wrote a letter in the following terms:

"Last year you stopped paying double time for Bank Holidays, and reduced it to one and a half. That amounts to an unlawful deduction of wages under the Employment Rights Act 1996. You did not liaise with the employees or put a notice on the board. The first we knew of this reduction was when we read our next payslips. Another act also covers existing employees – Council Directive 77/186/EC. The Transferors rights and obligations are transferred to the Transferee. This means of course that wages and benefits of an existing employee must remain when a business is passed onto another Manager. You did not do that. Thereby, this was a fundamental breach giving me the right to resign and claim unfair constructive dismissal."

4. As I say the Employment Tribunal having considered the facts then recorded the submissions of the parties in paragraphs 26 - 29 of its decision, set out the relevant law in paragraphs 33 - 38 and made express reference to the statute and the cases of Malik v BCCI [1997] ICR 606, Western Excavating v Sharp [1978] ICR 211 and Lewis v Motorworld Garages Ltd [1985] IRLR 465. The Employment Tribunal recorded its conclusion in paragraphs 39 - 42 of its decision:

"39 Some matters for which the Applicant complained of in relation to her status began before the Transfer of the Undertaking to the Respondent. In so far as those are concerned, any complaint the Applicant had in relation to them cannot relate to that Transfer.

40. The Applicant was unable to establish to our satisfaction the reason for her resignation having presented two particular reasons and referring to a number of other matters. In respect of the payments for Bank Holidays, the Applicant was prepared to work for the money she received for a period of almost a year and after the period when the amount was reduced to time and a half; she received double time on one occasion and thereafter on three further occasions at time and a half.

41. The Applicant waived each breach of the contract. Looking at all the facts found, both separately and cumulatively, we do not think that there was any fundamental breach of any term of the contract of employment by the Respondent.

42. As there was no fundamental breach of contract there was no dismissal. The Applicant's complaint of unfair dismissal therefore fails and will be dismissed."

5. Today's hearing was a Preliminary Hearing to decide whether or not there were any arguable grounds of law to go forward to a full hearing. The original Notice of Appeal was seen by his His Honour Judge Clark in Chambers and was the subject of the order for the Preliminary Hearing. That Notice of Appeal set out five grounds of appeal. I propose to deal with each one in turn.
6. First, it was said that there was an error of law had on the part of the Tribunal in the calling of a Mr David Kirby and Mr Harris (who represented his daughter at the Employment Tribunal as well as here today) showed in cross examination that Mr Kirby was a liar. Having proved this to his satisfaction Mr Harris expected the Tribunal to ask further questions. It did not do so. We can see no error of law here. Mr Kirby's evidence was extremely tangental to the case brought by the Applicant in relation to her unfair dismissal. It had no relevance to the protected disclosure application. We indeed cannot see any relevance at all in Mr Kirby's evidence to the claim for constructive dismissal but in any event it is matter for the Tribunal to decide what questions it wishes to ask and if it is satisfied with the questions which have been asked there is obviously no need for it to ask further questions. They would be redundant.
7. The second ground of appeal is that at approximately 1.30 pm on the day before the first day of the hearing Mr Harris had delivered to his home a package from the Respondents containing 23 pages of extra supplementary witness statements. On the morning of the first day of the hearing Mr Kirby objected to those supplementary witness statements being adduced as evidence at the hearing either by being read or by the calling of the relevant witnesses. The chairman took the view that Mr Harris had had sufficient time to read those 23 pages and prepare for them. In the exercise of its discretion the Tribunal refused to exclude those witness statements. That is a matter of entirely for the Tribunal's discretion. We have not seen the witness statements that the Tribunal did. Twenty three pages is very little indeed in the context of a case of this kind and we can see no unfairness to Mr Harris in the preparation of the case. He had in our view adequate time but in any event it was a matter that fell entirely and legitimately within the Tribunal's discretion.
8. The third ground of appeal is that the cross examination of Miss Harris was oppressive and unnecessary. There is a dispute this morning as to the amount of time which Miss Harris was cross examined but in answer to the letter from the Registrar and Mr Harris' Affidavit all three members of the Employment Tribunal have commented upon this particular allegation. The Chairman says that his notes reveal that the cross examination of Miss Harris began at 12.15 pm on the first day of the hearing and continued for the remainder of that day. That would of course include a break for the short adjournment in the middle of the day.
9. The following day the Chairman records that the cross examination continued until 10.55 am following which there were questions from the Tribunal and re-examination by Mr Harris. The Chairman also records that there was an adjournment between 2.30 pm and 2.50 pm on the first day as the Applicant was in tears. He has no recollection or note that the cross examination of the Applicant was oppressive or in any way excessive.
10. Mr J K Pepper records that the cross examination of Miss Harris began at 12.15 pm on the first day and was adjourned for lunch at 13.00 pm. Cross examination was resumed at 14.10 pm with a short delay because the Applicant did not want to continue. It continued until 4.00 pm on the first day, resumed at 10.12 am on the second day and was completed by 12.10 pm on the second day. We accept that that does not accord with Mr Harris' recollection today but we can find nothing in the papers on what Mr Harris had said which persuades us that the Tribunal erred in law in stopping the cross examination of Miss Harris. The onus of proof was on her to prove that she had made a protected disclosure, that she had suffered a detriment and that she had been forced to resign thereby creating a constructive dismissal. Given the history of this case as found on the facts by the Tribunal we find that the length of time taken for cross examination was not in any way unduly long. We would have been very surprised if it had lasted for a shorter period.
11. The fourth ground of appeal has been withdrawn by Mr Harris this morning and it is not necessary therefore for me to say anything about it. The fifth allegation in the Notice of Appeal is that there was bias shown against the Applicant by the Tribunal but the only instance which is given in the Notice of Appeal is that it is alleged that at the beginning of the hearing the Chairman held up a letter from the Applicant's general practitioner and said words to the effect that "this is insufficient" or "this medical report is insufficient". The reason for their being a medical report in evidence was that it was ordered by Mr T M Garnan at the Interlocutory Hearing for directions on 15 February 2002. Paragraph 8(iii) records that the Applicant will supply to the Respondent a medical note from her General Practitioner confirming that she is incapacitated from work. The letter is document 18 of the bundle. I do not propose to read it out but suffice it to say that it does not say that Miss Harris is incapacitated from work. It says that she has been on sick leave since mid November and is still very distressed. It is a letter which it is perfectly open to the Chairman to take the view to say that it does not show or prove that Miss Harris was incapacitated from work. It simply records that she was on sick leave.
12. So far therefore as those five grounds of appeal are concerned we find no error of law on the part of the Employment Tribunal. This morning Mr Harris put before us a document headed 'Draft Amended Grounds of Appeal'. These were drafted by Counsel who has not appeared this morning. We propose to deal with them as 'Draft Amended Grounds of Appeal' in addition to the grounds of appeal I have just referred to. We have not given leave to amend at this stage and indeed for the reasons that I now give it is not necessary to give such leave.
13. The document starts by listing two paragraphs. The first paragraph sets out or seeks to repeat arguments in relation to the dismissal by the Tribunal of the claim under Section 47B of the Employment Rights Act 1996. These are sections or paragraphs 1.1, 1.2, 1.3, 1.4 and 1.6.4. They all disclose no error of law for the simple reason that the Tribunal record at paragraph 3 of its decision the following:

"Before we had heard any evidence the Applicant's representative had expressed himself uncertain as to the complaint pursuant to section 47B Employment Rights Act 1996. At this stage the Applicant's representative conceded that no public interest disclosure had been made. We found that the Applicant had not given any evidence of having made a qualifying disclosure which was protected within the provisions of Section 43 of the Employment Rights Act 1996. It followed that we could not find that there had been a protected disclosure nor detriment following one. We announced our decision at that stage that that part of the Applicant's complaint was dismissed."

14. In the light of the concession made by Mr Harris to the Employment Tribunal that there was no protected disclosure the question of detriment becomes irrelevant and the Employment Tribunal is clearly quite correct in dismissing the application at that stage. It follows that the grounds of appeal to which I referred namely paragraphs 1.1, 1.2, 1.3, 1.4 and 1.6.4 are misconceived in the light of that concession. There is no error of law by the Tribunal there. The remaining grounds of appeal in the draft amended grounds of appeal document are first paragraph 1.5 which says this:

"It (meaning the Tribunal) misdirected itself in not asking whether the Applicant held the reasonable belief of what she was disclosing tended to show a relevant failure instead of asking itself whether there were in fact breaches of contract whether they were waived or whether they were repudiatory."

15. We have some difficulty understanding this in so far as it relates to the protected disclosure part of Miss Harris' case. It fails for the reasons already given. In so far as it relates to the unfair dismissal claim the Employment Tribunal specifically find in paragraph 41 that the Applicant waived each breach of the contract: that clearly relates back to paragraphs 39 and 40. The Employment Tribunal heard a substantial amount of evidence including the Applicant, the Respondent in person and a number of other witnesses called by the Respondent. It, on that evidence, recorded in paragraph 6 - 25 of its decision were able to come to the conclusion that the individual breaches had been waived therefore there could be no application of the last straw doctrine to found a claim for constructive dismissal. The only remaining ground in the amended grounds of appeal document is paragraphs 1.6.1, 1.6.2 and 1.6.3. They all relate to matters which the Tribunal dealt with in paragraphs 39 - 41 of its decision.
16. The Tribunal clearly heard all of the evidence including the evidence of the Applicant and the way in which this ground of appeal is put is in our view misconceived. Those were issues upon which the Appellant relied to show a continuing series of acts leading up to a last straw application of the doctrine of constructive dismissal: See Lewis v Motorworld Garages Ltd [1985] IRLR 465 referred to earlier in this judgment. There is no substance in them. The Tribunal heard the evidence. It decided that in the context of the chronology of events these events had, matters of complaint, have been waived by Miss Harris and so they were too late and indeed individually they could not amount to repudiatory contract by the employer to justify her resigning. There was therefore a genuine resignation and no constructive dismissal. For these reasons the appeal will be dismissed at this stage.