Appeal No.	EAT/1386/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 October 1999

Before
THE HONOURABLE MR JUSTICE HOLLAND
MR D J JENKINS MBE
MISS A MACKIE OBE

MRS P STRETCH	APPELLANT

TIBBETT & BRITTEN CONSUMER GROUP LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR T C SOMERVILLE
(of Counsel)
Instructed by
Restons Linaker & Linaker
Solicitors
Trinity Chambers
60 High Street
Runcorn  WA7 1AL	

	

	MR JUSTICE HOLLAND:	By an IT1 dated 7 October 1997 Mrs Patricia Stretch initiated a complaint against her former employers, Tibbett & Britten Consumer Group Ltd.  That complaint was to the effect that she had been subject to constructive dismissal in July 1997.  That complaint was advanced with considerable strength of feeling, which strength of feeling was noted subsequently by the Employment Tribunal.  We make that comment not in any sense by way of criticism, but simply to record the facts.  

1	The IT1 was accompanied by what was described as “outline for reasons of claim”, which set out a very substantial number of issues arising out of the employment itself.  Those issues came before an Industrial Tribunal held at Liverpool on some seven days on and between 9 March 1998 and 1 May 1998.  In the overall result that Tribunal by a majority dismissed the claim.  Against that decision an appeal has been mounted to this Tribunal.  That appeal was advanced by way of a substantial amount of documentation which is in our bundle which seemingly emanated from Mrs Stretch’s daughter or such other advisers who were then assisting her with this matter.  

2	By the time the matter comes before us however, there has been a further move in that Mrs Stretch sought legal advice from Messrs Linaker and Linaker, solicitors, and they in turn instructed Mr Somerville to appear before us.  This has enabled us to have the benefit of Mr Somerville’s analysis of the merits of the situation.  In the overall result, he has been able to identify a very short issue for us to consider, and we do so.  But before we turn to his argument, we wish to make it quite clear that we have all three looked at the other documentation that accompanied the Notice of Appeal, we have considered all that documentation and we have done so with a view to seeing whether there is anything in there that could properly be added to the point taken by Mr Somerville.  We would have to say in the upshot we can find no other point.  The only point that really arises is the one Mr Somerville has identified.  Let us then turn to that point.

3	By way of preface, we must point out what our function is here this morning.  We as a Tribunal only have jurisdiction with respect to points of law.  If we discern a point of law arising out of the decision of the Tribunal, then it is our function this morning to identify that point and to adjourn this matter so that it may come back with Tibbett and Britten Consumer Group Ltd represented.  This Tribunal will then have the advantage of arguments from both sides before arriving at a conclusion.  If on the other hand we can find no point of law in this matter then it is our further duty to say so and in those circumstances it becomes a reluctant additional duty to dismiss the appeal.  We emphasis that without any point of law there is nothing for this Tribunal to do, that is our jurisdiction, that is our concern.  

4	We turn then to the issue as now presented to us.  There was a very long history in this matter carefully reviewed by the Industrial Tribunal and recorded in its Extended Reasons that were sent to the parties on 4 September 1998.  We can for present purposes, come to the essential point by the following route.  As the Tribunal records, there came a stage at which the Respondent employers agreed that they had been at fault and sought to arrive at an agreement with Mrs Stretch for a return to work.  That agreement was set out by the Tribunal by way of findings of fact in paragraph 6(16) of the Extended Reasons.  One such term gives rise to the problem.  The Tribunal found at 6.16..3:

“The applicant alleges that there was a further express term, namely that Mr Scanlon said that although Mr Dillon would continue to work in the Administration department she would only see him occasionally.”

5	It is the case for Mrs Stretch, first, that there was here a term of an agreement and that ,second, in the event it became apparent that the Respondent employers had no intention of complying with it in as much as they seemingly expected that following her return to work she would be in a department which also contained Mr Dillon so that they were at desks in relatively near proximity.  Thus, the case for Mrs Stretch became that by reason of the failure of the employers to comply with the agreement, circumstances arose giving rise to constructive dismissal.  

6	Central therefore to this part of the case was that alleged term.  As we understand it there was however an initial issue of fact. The initial issue of fact was as to whether there was ever any such exchange, that is oral exchange, between those making the agreement on the behalf of the employers and Mrs Stretch to that effect at all.  It would seem that the case for the employers was that the person concerned to make the agreement on their behalf, namely Mr Scanlon, never did say anything of the sort.  It therefore behoved that the Industrial Tribunal as ‘the Industrial Jury’ to make findings of fact as to what was said on the occasion.  It was then their further task having regard to those findings of fact to make further findings as to the impact upon the agreement that was undoubtedly made for the return to work. 

7	As we gather from paragraph 8.5.10 in the Extended Reasons and 8.5.11 the Tribunal found the initial issue of fact one of difficulty.  Tribunal member [A] found that there was a remark to the effect that Mrs Stretch would only see Mr Dillon occasionally but that that remark was made by way of an aside.  Tribunal member [B] concluded that the remark was never made at all.  Tribunal member [C] concluded that the remark was made. 

8	Turning then from that conflict between the three members of the Tribunal, they in the result resolved the problem as follows.  [A] and [B] made common cause.  [A] it will be remembered thought that the remark was made as an aside, [B] thought that the remark was not made.  The common cause that they made was to conclude that there was no such term of the agreement.  [B] reconciled that with his or her finding that there was no such remark.  [A] reconciled that with his or her finding that it was an aside, namely that it was something said without any intention to create legal relations.  We turn then to [C].  [C] it will be remembered thought the remark was made, took the view that not only was it made, but it was made in such a way as to become a term of the agreement.  Hence, at the end of the day there is a majority decision to the effect that there was no such term of the agreement and therefore no basis for a constructive dismissal, and there is a minority decision to the effect that there was such a term that therefore there was in the event a good basis for constructive dismissal rising out of the failure to comply with such a term.  

9	We turn then to the way Mr Somerville has put the matter this morning.  He submits that the finding by member [A] that there was the remark made, albeit by way of an aside, is a finding that can and should be challenged.  In order to put the matter to this Tribunal he has to say that this was a finding that no reasonable person could make, that it was so perverse a finding as to amount to an error of law.  We interpose the matter has to be put that high because absent such emphasis, all that it is, is an issue as to fact.  We have given careful consideration to that submission and in the event we find ourselves quite unable to accept it.  

10	The essential problem here was a problem of fact and it was resolved by the Tribunal in the fashion described, doing so as judges of fact.  There is no scope whatsoever for this Tribunal looking further into those findings.  We could only do so by hearing the witnesses again and we do not hear witnesses.  We have to proceed on the basis of the findings made by the Tribunal below and so far from the findings suggesting perversity, what they do suggest to this Tribunal is a very careful analysis of evidence that may not have been easy to resolve.  

11	We would add further that even if we were satisfied that the finding that it was an aside was one that was fit for consideration by this Tribunal, it would be very far from clear that the result, as accepted by the minority number, would be one that would be readily justified before us.  There are plain difficulties as a matter of law in introducing any such term into the contract for the return to work on the part of Mrs Stretch without some reciprocal alteration in the contract between the Respondents and Mr Dillon and that would appear to be potentially a very difficult area to deal with, given the finding at 6.14 that there had been no prior harassment on his part.  

12	We do not venture these observations in any way as a matter of final judgment.  All we point out is that even the issue of fact here is not necessarily one that leads automatically to a conclusion that the decision of this Tribunal was wrong in law.  The findings as to fact are only stage one in dealing with the matter.  That said, and for the reasons we have sought to explain with clarity, we cannot find that there is a point of law involved in this decision, and that being the case, we have no further jurisdiction.  We must dismiss this appeal.