Appeal No.	 EAT/409/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 November 1997

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR L D COWAN
MS B SWITZER

MISS P DENTICE	APPELLANT

OFFICE OF POPULATION CENSUSES & SURVEYS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR M KALLIPETIS QC
(ELAAS)	

	MR JUSTICE MORISON (PRESIDENT):     The purpose of this hearing was to determine whether there is an arguable point of law raised by the appellant, Miss Dentice, against a decision of an Industrial Tribunal held at London (North) on 29th January 1996. That hearing concerned Miss Dentice’s complaint of unfair constructive dismissal brought against the Office of Population Censuses and Surveys for whom she had worked for a number of years.

	There were two grounds of her appeal. Mr Kallipetis QC who has appeared on her behalf through the ELAAS system, and to whom we are grateful as indeed is Miss Dentice, in effect said that the first ground which related to bias was not being pursued, save in so far as it related to the second ground which concerned the way documents were dealt with at the Industrial Tribunal. 

	It seems to us reasonably clear that what happened in relation to the documentation in this case was at best most unfortunate. What appears to have happened is that the Treasury Solicitor on behalf of the respondents on some date dispatched to Miss Dentice at her home from where she worked a bundle of documents upon which the respondent was intending to rely. The date on top right hand side of that letter, 24th January 1996, appears not to have been the real date of the letter because of the electronic stamp which would appear to indicate that the letter was created on 25th January 1996. In fact, the documents were received on 30th January, which was the day after the tribunal hearing.

	At the tribunal hearing Miss Dentice explained that she had not got the respondents’ documentation, and she was provided with a partial bundle of documents which fell short of the full bundle. In particular, she did not have made available to her a typewritten account allegedly made on behalf of the respondents of two important telephone conversations. It seems to us that it would have been fairer and better had Miss Dentice been given the full bundle and had she been given a full and proper opportunity of going through the documents herself before she came to give evidence. Because this was a constructive dismissal case it was for her to start, and accordingly, she found herself in the embarrassing position of having to give evidence when she had not had access to the full bundle of documentation on which the respondents intended to rely.

	She swore an affidavit setting out the facts which related to the documentation. We have seen an affirmation on behalf of a solicitor employed in the Treasury Solicitor’s Department. The solicitor affirmed that a small bundle of documents was sent to the applicant by post as was her normal practice on or about 24th January 1996. For reasons which we have indicated, we do not think that that can be right. Indeed, it would appear to be unlikely that her letter of 31st January 1996, which said that the letter accompanying the bundle was put in her out tray on 24th January was accurate either.

	But we have got to have regard to what the dispute was truly about before the Industrial Tribunal. There is no doubt that Miss Dentice took the view that her employers had done her a great injustice by the way they had graded her. They had graded her a D which is unsatisfactory. She was of the view that that was manifestly unfair and unjust, and was angry about it to the extent that she felt she wanted to have nothing more to do with people who treated in that way. Accordingly, we are satisfied that although she initially resigned in the heat of the moment, it was and is still her intention that she should no longer work for these respondents in view of the way that she perceived she had been treated. 	It is a pity when a long-standing employee feels that his or her services have not been properly valued or appreciated by his or her employer.

	She therefore presented her complaint of constructive dismissal effectively on the basis that her employers had broken the implied term of trust and confidence by grading her in a way which was, in her judgment, manifestly unfair. 

	The Industrial Tribunal were required to consider that question and they did so in paragraph 9 of the decision to which our attention has been drawn. There was a prescribed formula which was apparently applied which is said to have led to the grading, but most importantly in our judgment, there was a system for grievances to be aired;  and raising a grievance over a grading is, in our judgment, a classic case for the operation of the grievance procedure. Therefore, even if objectively speaking the employers could be said to have got the grading wrong, and they may well have done, it was not a breach of contract on their part to have got it wrong unless they were acting in some way maliciously or without good faith.

	Miss Dentice gave evidence about these matters, and no doubt the Industrial Tribunal were concerned more to discover whether there was any sign of bad faith in this case than with the precise details of the grading exercise. That might explain, we think, why Miss Dentice felt that the Industrial Tribunal were somewhat dismissive of her evidence about the grading matters. The truth was, we suspect, that they were looking to see whether there had been a fundamental breach of contract which entitled her to walk out. They were justified on what they heard, we think, to conclude that there had been no such fundamental breach, even if, and it may well have been their view, they thought that she had been unfairly graded in the first instance.

	Accordingly, this is not a case where we can say that there is an arguable point of law fit for hearing before a full panel of the Employment Appeal Tribunal. We would like to express our gratitude both to Mr Kallipetis and, if we might add, to Miss Dentice herself for the approach which had been taken in this case.