Appeal No.	 EAT/493/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 July 1998

Before
HIS HONOUR JUDGE J HULL QC
MRS J M MATTHIAS
LORD GLADWIN OF CLEE CBE JP

MR D A GALE	APPELLANT

GRANBY MOTORS (DERBY) LTD & ANOTHER	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR D GALE
(in person)	

	JUDGE J HULL QC:	This is an appeal to us by Mr David Andrew Gale who was employed by the Respondents to the appeal, Granby Motors Ltd, now the owners of the business;  it was formerly Barrie Rodgers Motorcycles.

	Mr Gale was first employed by Mr Barrie Rodgers in November 1991.   His employment continued until, the business of Barrie Rodgers’ firm having been taken over by Granby Motors Ltd, the employment ended on 9 May 1996.

	Mr Gale was employed as, he says, accessories and clothing manager.   He has also been described as a salesman.   He is at any rate a man who is, so to speak, in the business.   He tells us, and indeed he told the Industrial Tribunal, that he had been subjected to a great deal of pressure and unpleasantness from Mr Rodgers.   The last incident referred to by him and by the Industrial Tribunal was an incident in January 1996 when, the employer not actually being present, Mr Gale wished to go to his bank with his earnings, which included his commission and, his earnings having been paid to him, they had not included the commission.   So he took £50, being part of the sum which was owed to him for commission, out of the till and left an IOU to evidence what he had done.   He took the money to the bank, there was no secret or dishonesty about it at all, he took it down to the bank and paid it into his bank in the usual way.    Mr Rodgers, he says, found out about that (as of course he would, there had been no question of concealing it from him) and he proceeded to conduct himself very unpleasantly and he, says Mr Gale, gave, in due course, though not until after substantial delays, a final written warning.

	Mr Gale says this about his employer.   “He was an unpleasant man.   He persecuted employees by verbal abuse.   He had persecuted other employees and succeeded in getting rid of several of them and his course of conduct”, as Mr Gale puts it, “over a number of years had been the same to me.”   This was, so to speak, the final straw.   Having received that final written warning, which he found wholly unacceptable in the circumstances, Mr Gale gave notice ending on 9 May, and in due course, on 3 July, complained to the Industrial Tribunal that he had been constructively dismissed and that his dismissal was unfair.   

	There was an answer and the Industrial Tribunal duly sat.    As I say, the undertaking had been transferred and the new employers also were served.   The Industrial Tribunal sat at Nottingham under the Chairmanship of Mr Richards and after hearing the evidence the application was dismissed and so Mr Gale appeals to us.

	He makes several complaints.   First of all he says that the Industrial Tribunal indicated at an early stage that in view of the time limit for making complaints (that is to say, three months) they were not interested in going back over the years to investigate a number of incidents which Mr Gale said “were all part of a course of conduct.”

	In law that is, we think, correct.   Assume in favour of Mr Gale, and of course we have no right to find any facts, that the employer had been guilty of unpleasant behaviour on perhaps half a dozen occasions any of which, separately, or taken together, would justify Mr Gale in saying “the contract is at an end”.   He would on each of these occasions be put to his election:   he would have to say, as a matter of contract either “I am soldiering on and putting up with this” or “I am going to say this is too bad I am now going, this is the end of my contract”.   He did not say that.   He soldiered on in the face of these difficulties which he has described and therefore we think the Chairman was quite right to indicate, and the whole Tribunal was right to take the view, that what they had to do was look at what was regarded by Mr Gale as the cause of his giving in his resignation within the three month period and say, “well, we will consider whether that amounts to a breach of contract”.  They did not shut Mr Gale out from referring in a general way to much previous unpleasantness, it is clear from their decision.   They say:

“4.   The applicant alleged that Mr Rodgers took every opportunity to harass his employees and he cites occasions when, at the end of a day’s trading, the till appeared short and implied it was the applicant’s fault.”

	Indeed, Mr Gale has told us that there were a number of occasions when it was suggested that he, Mr Gale,  was guilty of dishonesty.

	So the Tribunal had those matters in mind and what they had to do was to consider whether this final written warning and the events which are described did add up to a matter which was a breach of contract and which entitled Mr Gale to accept it as ending the contract.

	Before we come to that, another complaint made by Mr Gale is that he wanted various witnesses called from the firm.   He was able to persuade one of the witnesses, who had left, to come and give evidence but another witness said he was unwilling to come and there were witnesses still in the firm whom he wished to come and give evidence.   He felt, not surprisingly, that it would be invidious for those witnesses to come voluntarily and give evidence against their employer and therefore he wanted those witnesses made the subject of witness summonses.   He did not actually put it like that.   He wrote to the Tribunal and said he wanted those witnesses there.   He did not lay before the Tribunal any statements of what they would say but he indicated in a general way that they would say that Mr Rodgers had treated them badly.

	The Tribunal said that they thought that would be unnecessary.   Clearly they could hardly, on an inquiry of this sort - which was a narrow one, to decide whether there had been what a lawyer might call “an available breach of contract” for Mr Gale - they were not going to inquire and they could not inquire into Mr Rodgers’ conduct as an employer over a number of years not only with regard with Mr Gale but with regard to other employees too.   It would make an impossibly long and complicated inquiry and Mr Rodgers would no doubt wish, if that was to be the case, to call a lot of evidence himself about how he had treated various people, to excuse various things and go into various matters.   The Tribunal, in the circumstances, were absolutely entitled, as a matter of discretion, to say “we will not at this stage issue witness summonses for these witnesses, we will see how the case develops”.  So they embarked on the hearing.   

	Mr Gale has taken us through the Extended Reasons given by the Tribunal and criticised them in various ways.   The fact is that we are not entitled to go behind the findings of the Tribunal to see whether they have correctly stated the facts.   What they do say is this, after setting out the facts I have referred to:

“5.   In 1995, the applicant criticised his employer on two occasions about his employer’s attitude to customers and in September the applicant was given a verbal warning which he refused to accept.”

	Mr Gale has told us that there is no linkage between those events and what he was complaining about.   But that does show, and so does the paragraph before, that the Tribunal were certainly not putting out of their minds the fact that Mr Gale had complained vigorously about the conduct of Mr Rodgers over past years.

	Then they describe the incident in January 1996 and what happened as a result of that and what Mr Gale had said about it.   They described the disciplinary proceedings and they say he was given a written warning - the Applicant has told us that was not until April.   We think he must be mistaken about that because the Tribunal say an appeal was heard by Mr Rodgers on 28 March 1996 and the warning was upheld.   Then they say that Mr Rodgers pointed out, in his letter of 3 April, that the issue was not whether the Applicant intended to steal or deceive but whether he had authority to remove money from the till.

	The Tribunal say:

“12.   We do not believe that the warning was unreasonable.   In response, the applicant gave notice on 4 April that he did not accept the written warning and that he would terminate his contract on 9 May 1996.”

	So there he was, accepting Mr Rodgers’ behaviour as, in his view, being a breach of contract which entitled him to resign.

	But the Tribunal, having dealt with those matters, go back to 1994/95, they say that these incidents:

“...do not individually justify the applicant in resigning nor do they, as a whole, amount to a course of conduct justifying resignation.   In any case, an employee must, to establish constructive dismissal, resign within a reasonable time of a breach by his employer and clearly the events of 1994 and 1995 were well out of time.
16.   We believe that the written warning in January 1996 was reasonable and perfectly justified by Mr Rodgers and could not in any way be construed as a breach of contract, nor a breach of trust and confidence.  
17.  We dismiss the application.”

	Now what Mr Gale says further about that is that all through this Mr Rodgers was giving disingenuous evidence to the Tribunal and the Tribunal believed him and accepted his evidence.  Well, the facts are for the Tribunal, they are not for us.   The Tribunal is entitled to hear such evidence as it thinks right, as is laid before it, and it is for the Tribunal and not for us to say what evidence they accept.   We cannot say that the Tribunal was wrong in preferring the evidence of Mr Rodgers.   It follows as a matter of common sense that they might have taken a different view.   They might have preferred Mr Gale’s evidence.   They might have decided that he had been persecuted over quite a substantial period and that this final written warning was not given in good faith and was simply part of a campaign to get rid of Mr Gale, as Mr Gale himself believes.   But they did not.

	That is what they are there for.   They clearly have to reach a decision on the evidence which they have heard.   It is said that at the end they left without hearing any final speech or summing up by Mr Gale.   They, no doubt, had heard everything that Mr Gale had to say to them up to that point and Mr Gale tells us that he did not ask the Tribunal, “before you retire, can I address you again?”

	It seems to us that in those circumstances they can hardly be criticised for retiring in the way they did.   Mr Gale says he has the impression that they were in a hurry.   If so, that is a source of regret.   They should not have given such an impression.  But the fact was they had heard all the evidence, it is not alleged that they refused to hear evidence which was put before them.

	It seems to us, therefore, that we have to say this:   our jurisdiction is confined to points of law and we cannot, in spite of everything Mr Gale has said to us, find any error of law here.   All we can say is there is a discretion which might have been exercised in a different way,  that there are things which might have been done differently.   Those are matters within the discretion of the Tribunal.   What is not a matter of discretion, of course, is that they must say what evidence they accept and what they reject.   They have done that so we cannot criticise them for doing that either.   In the circumstances, since there is no point on which we can entertain the appeal, we have to say that at this stage the appeal must be dismissed, for the short reason that we cannot entertain it.