Appeal No.	 EAT/1040/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 January 1997

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR E HAMMOND OBE
MISS S M WILSON

HELLMAN INTERNATIONAL FORWARDERS LTD	APPELLANTS

MISS S D COOPER	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MISS C COPPER
(Personnel Manager)

		MR JUSTICE MORISON (PRESIDENT):   The purpose of this hearing is to determine whether the employers have an arguable point of law in their Notice of Appeal against a unanimous decision of an Industrial Tribunal held at Stratford on 7 December 1995, which having upheld the employee’s complaint of constructive dismissal awarded her compensation of some £9,300.00.  The employee, Miss Cooper, had also made a complaint of sex discrimination which the Industrial Tribunal rejected as being out of time and there is no cross-appeal.

	The brief facts relevant to this hearing are that the employers are engaged in the freight forwarding business.  Miss Cooper was employed in the office at Rainham dealing with the accounts side of the business; processing the paperwork which was required to satisfy customers that goods had been delivered and payment was due.  One of the Respondent’s major clients was the Ford Motor Company.  There was a backlog of work which had built up partly through inadequate staffing according to the Industrial Tribunal, and partly through delays in the system in obtaining the necessary proof of delivery documents.  

	The Industrial Tribunal found that Miss Cooper was struggling to cope but was provided with no sufficient training or support and that the Pool Account Auditor had noted that she was unable to cope with her workload which was, in his judgement, beyond her reasonable capability.  The employers provided her with some help but the junior was then taken away from her and put on to other duties.  She was given no warning that her job was at risk or any indication that her employers were not prepared to tolerate the position.  The Director in charge had come under pressure from the Board to sort out the delays on the Ford account, which left the company out of pocket for quite some time, and Miss Cooper’s manager on 13 February 1995 said that she had a fortnight to put matters right and that if she did not succeed, she would be “out the door”.

	The Tribunal found that given the state of the account as it then was, the demand could not possibly be complied with no matter how hard or for how long she should work.  Miss Cooper was upset by the way she had been treated and went home.  Three days later she met with the Director in charge and he told her to try and do her best to deal with the problem and that they would review the position on 6 March.  He made no threat as to what would happen if there was still a backlog and she was given no warning about her capability.  As agreed she returned to work on 20 February and shortly after she had started, her immediate manager told her that he intended to issue her with a verbal warning and that if she did not complete the outstanding work by 6 March she would be dismissed.

	The Industrial Tribunal made this finding in paragraph 9 of their Extended Reasons:
“...  It is little wonder that Ms Cooper was upset and confused at being given, on her next working day after meeting Mr Wyatt, a message which materially contradicted that given to her by him.  In the absence of a credible explanation, we can only speculate as to Mr Flack’s motives but this was conduct which was unreasonable and oppressive and which could only seriously damage the relationship of trust and confidence between employer and employee.  The earlier threat had been reimposed; perform a task known to be impossible or be dismissed.”

	Shortly thereafter the employee raised a grievance about the way she was being treated and surprisingly the Director appeared to have regarded her complaint as a matter which counted against her.  He effectively repeated the threat of dismissal.  The achievement of the target was, as the Tribunal found, an unreasonable one which could not possibly be attained, as any proper enquiry would have revealed.  She then left her employment and claimed constructive dismissal.

	In their reasons which are clearly and succinctly set out, the Industrial Tribunal held that the employers had broken essential terms of the contract of employment.  First of all the implied term that the employer will not, without reasonable or proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee, and secondly, the implied term that the employer would reasonably and promptly afford an opportunity to their employees to obtain redress for a grievance.

	The Industrial Tribunal concluded as follows:
“12 ...  In reaching this conclusion, we have had regard, principally, to the following matters:
(1)	The decision to issue Ms Cooper with a warning, both by Mr Flack and by Mr Wyatt, was arrived at without giving her an opportunity to present her side of the case.
(2)	It was a decision which was unreasonable in the sense that no reasonable employer, in the circumstances, would have issued a warning given that the Respondents were in large measure responsible for failing to provide proper management, support and training and they had tolerated the creation of the very situation about which they then sought to complain.
(3)	In giving Ms Cooper until 6 March to bring her work up to date, the Respondents were imposing a requirement which was wholly unreasonable in the sense that they knew it was a requirement which was impossible of reasonable attainment.
(4)	The Respondents acted unreasonably in imposing that requirement, withdrawing it and then re-imposing it, without proper cause and within the space of a few days.
(5)	The Respondents acted unreasonably and in breach of contract in refusing properly to consider the grievance which the Applicant had raised.”

	Having held that she was unfairly dismissed within the meaning of Section 95(1)(c) of the Employment Rights Act 1996 the Industrial Tribunal concluded that she was not to blame to any extent for her dismissal.  In their decision on quantum to which this appeal relates, the employee’s attempts to obtain alternative employment were fully investigated.  The only point which the employer’s suggest is arguable is that the employer’s would have been entitled to dismiss Miss Cooper fairly within a period of about two months.  Miss Copper who has appeared in front of us today on behalf of the company has very properly drawn our attention to the decision of Rao v Civil Aviation Authority.  

	If there had been a shred of evidence that Miss Cooper was incompetent as opposed to being given an impossible work load, there might have been some merit in the point being raised.  A finding of incompetence or lack of capability would have been inconsistent with the Tribunal’s view of the merits of the dismissal.  It was the employer’s unreasonable behaviour to her which was the sole cause of her dismissal.  She was not to blame for what had happened.  She had been given no warnings about her competence and was set unreasonable targets.

	In any event, as Miss Copper has correctly and properly told us, this was not a point which she raised before the Industrial Tribunal at the quantum hearing.  This Court will only entertain matters which involve points of law and, broadly speaking, will only entertain points which were argued before the Industrial Tribunal.  The reason for the second requirement is that parties are to be encouraged to have “one bite at the cherry” only.  It is inconsistent with the doing of justice that there should be sequential hearings due to points being taken on a sequential basis.  The reason for the first requirement that there should be a point of law simply arises out of the statutory jurisdiction of this Tribunal.  We do not have power to consider points which are not points of law.  

	It seems to us that this is a case where the Board of the Respondent company put pressure on the Director; he in turn put pressure on Miss Cooper’s immediate manager, and he, through his own shortcomings, responded to the problem in an inappropriate manner.  What Miss Cooper needed was a manager who competently assessed what was needed to be done.  He must have been aware that Miss Cooper’s burden was intolerable as the auditor confirmed.  Rather than making further unreasonable demands upon her, he should have provided her with assistance.  It seems to us, accordingly, that there is no point of law raised in the Notice of Appeal, and therefore no merit in this appeal; it is not fit for a full hearing and therefore the appeal must be dismissed.