Appeal No.	 EAT/1182/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 February 2000

Before
HIS HONOUR JUDGE PETER CLARK
MR D CHADWICK
LORD DAVIES OF COITY CBE

MRS P SMITH	APPELLANT

BENTWOOD LTD	RESPONDENTS

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR D BEARD
(OF COUNSEL)
ROBINSONS
3-5 MUNDAY STREET
HEANOR
DERBYSHIRE
DE75 7EB	

JUDGE CLARK:-

1.	The Appellant, Mrs Smith, was employed by the Respondent as a skilled machinist at their knitwear factory in Nottingham. She was a piece-worker, who, for many years had operated a twin needle sewing machine.  She earned what the Nottingham Employment Tribunal sitting on 5th July 1999 to hear her complaint of unfair constructive dismissal described as good money on that machine.  Her pay consisted of a low basic wage and further payments based upon hitting production targets.

2.	In autumn 1998 the Respondent had a contract for the supply of tee shirts which required mock lapping stitching to the design.  Working on the mock lapper machine was unpopular with the work force.   That work was regarded as difficult, making it more difficult to achieve the earnings which flowed from working on the twin needle machine.  The Employment Tribunal concluded that the Appellant and her colleagues were sufficiently able and skilled to operate the mock lapper at a reasonable speed.

3.	However, the Appellant and others were unhappy at being put on this work.  One person left the employment; another had a heart attack which she put down to the stress of the mock lapping work.  The Appellant’s earnings dropped; she became disconsolate.  Eventually, on 21st January 1999, after her work had been monitored by a checker, she was called into the office to see her supervisor, Mr Rose.  He intended to give her a warning about her work.  She asked it she was going to get the sack.  She was told that she was not but in the absence of a satisfactory explanation for her work performance she would receive a warning.  With that the Appellant walked out of the factory in a distressed state.

4.	That evening her immediate supervisor Mary Ward visited her home and tried to persuade her to return to work.  She would not do so and in due course received her final payments and form P45 after nearly sixteen years service with the Respondent.

5.	On those facts the Tribunal had to decide whether the Respondent was in fundamental breach of the contract of employment entitling the Appellant to leave and claim that she was constructively dismissed.  Taking into account the facts as found, coupled with the experience of the knitwear industry and the piece-working system of the two lay members of the Tribunal and what the members of the Tribunal had seen on a visit to a different factory to that in which the Appellant worked to see work in operation, a visit conducted after the oral hearing.  

6.	The Tribunal concluded that the Appellant had not made out her case of constructive dismissal.  They concluded that she had overracted, she was not entitled to walk away but in piece-work it is necessary to take the rough with the smooth.  The Appellant was not prepared to take the rough.  In these circumstances they dismissed her claim.  

7.	Against that decision, the Appellant now appeals and Mr Beard, who appears on her behalf for us, takes essentially three points.  First, he refers to the way in which the case was pleaded in the Originating Application.  It is there said, among other ways in which the repudiatory breach of contract is put, that the company breached an implied term of the Appellant’s contract that it would provide her with work to enable her to make up her daily pay to a reasonable level by earning bonuses which of necessity required her carrying out duties that she was experienced at or was able to learn quickly with no significant financial detriment to her.  The Respondent resisted her claim of constructive unfair dismissal and in the Notice of Appearance said among other things:-

“We firmly believe that we have acted fairly and reasonably in providing the Appellant with work and payment in accordance with her contract of employment. “ 

They further alleged that they had not reached any implied term by providing unsuitable work or equipment.

8.	Mr Beard submits that in making implicitly a finding that the Respondent was not in breach of any implied term of the contract, nor indeed upholding the particular implied term advanced on behalf of the Appellant, the Tribunal had adopted an unfair procedure.  Although it is recorded in the Tribunal’s reasons that the two lay members had particular experience of piece-working, that fact was no disclosed to the Appellant or her representative.  

9.	In support of this submission he relies on the decision of the EAT, Mr Justice Talbot presiding, in Hammington v Berker Craft Limited [1980] ICR 248.  In that case a member of the Tribunal had particular experience in the trade in which the Applicant employee had been employed prior to his dismissal.   The Tribunal found that the dismissal was unfair but declined to make any award in respect of future loss of earnings on the basis, relying on the particular knowledge of that Tribunal member, that the employee/Applicant ought to have found alternative employment in that trade.  

10.	In giving the judgment of the EAT, Mr Justice Talbot referred to the criminal case of Wetherall v Hallison 1976 QB773 in which both Lord Widgery, CJ and Mr Justice O’Connor made observations about magistrates using specialist knowledge in determining a case that comes before the bench.  The thrust of those observations is to the effect that the person with specialised knowledge may use it and share it with his fellow justices in order to help the bench to form a view of the case on the evidence, but not to substitute what that member of the bench knew for the evidence that was being given.  Applying those principles Mr Justice Talbot said this at page 252 D:-
“The essence therefore  of the use of such specialised knowledge and information and experience is that it is to be used as can be seen from all these authorities for the purpose of weighing up and assessing the evidence and if necessary interpreting it.  What must not be done is using that knowledge to substitute for the evidence given in Court that derived from that knowledge, nor must it be used for producing some factor of evidence which is not evidence before the Court whichwith the parties have not had an opportunity of dealing in that case.”  

In that case the Appeal Tribunal allowed the Applicant employee’s appeal on the basis that the Tribunal had misused the expert knowledge of one of their number in rejecting evidence given before them by the Applicant.

11.	Turning to the facts of this case, Mr Beard submits that this case falls on the Hammington side of the line.  That is to say, the knowledge possessed by the lay members of the Tribunal ought to have been disclosed to the Applicant and her representative; it was not.  Therefore, no opportunity was given to the Applicant to deal with the member’s knowledge and in these circumstances that was an unfair procedure.  We reject that submission.  It seems to us that Employment Tribunals are set up with the specific aim of including the industrial experience of their lay membership.  

12.	In this case, there is nothing in the reasons given by the Tribunal, so far as we can discern, to indicate that the knowledge of the piece working system was used in such a way as to substitute the views of the Tribunal members for the evidence given on behalf of the Appellant.  Its use was properly confined to evaluating and adjudicating on the conflicting evidence given to the Tribunal by witnesses on both sides.  His second submission also involves a contention that the Tribunal adopted an unfair procedure.  This time in relation to the factory visit.  It seems that the Tribunal members acceded to an invitation on the part of the Respondents to visit a different knitwear factory in Nottingham to observe machinists at work on similar machines.  That took place after the oral hearing.  The Applicant was present with a representative from the firm of solicitors who appeared on her behalf at the oral hearing and the Tribunal make their observations about that visit at paragraph 2 of their reasons.  It seems to us that the Tribunal found the visit of value in understanding the way in which machinists in knitwear factories work; that is as far as it went.  We reject Mr Beard’s submission that in some way the failure to reconvene the hearing after that visit placed the Applicant at any disadvantage in the outcome of this case.  His final submission which he faintly pursues relates to the Tribunal’s findings of fact at paragraph 9 of their reasons.  The finding was, on evidence which we do not understand to have been controversial, that the immediate supervisor went round the to the Appellant’s home on the evening of the 21st January to try to persuade her to return to work but the Appellant’s mind was made up and she did not return.  It seems to us that that is simply a recitation of the end of the factual story and no more.  We do not accept Mr Beard’s submission that those findings were relevant to the Tribunal’s conclusion that the Respondent was not in repudiatory breach of contract.  Had they found otherwise, those findings would merely have confirmed the fact that if there had been a repudiatory breach the Appellant had immediately accepted it.

13.	In all the circumstances, having considered the submissions made in this appeal, we are not satisfied that it discloses any arguable point of law and consequently it must dismissed.