Appeal No.	 EAT/637/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 November 2000

Before
THE HONOURABLE MR JUSTICE BELL
MR D J HODGKINS CB
MR G H WRIGHT MBE

MR N G WILSON	APPELLANT

UNIVERSITY OF BRIGHTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

	APPEARANCES

For the Appellant	MISS JOANNE HEAL
(of Counsel)
ELAAS	

	MR JUSTICE BELL:	This is a preliminary hearing in respect of an appeal brought by Mr Wilson against the decision of the Employment Tribunal held at Brighton on 16th December 1999 and the 9th and 10th March 2000. The tribunal’s reserved decision was promulgated on 20th April 2000 and was to the effect that Mr Wilson had not been unfairly dismissed by his employer, the University of Brighton, and that his application complaining of unfair dismissal should therefore itself be dismissed.

1.	Mr Wilson acted for himself with regard to the hearing before the Employment Tribunal and he prepared for this preliminary hearing himself. Today he has the very great advantage of being represented by Miss Joanne Heal under the auspices of ELAAS. 

2.	Mr Wilson’s lengthy written submissions in respect of the appeal and skeleton arguments as well as a detailed written request for a review of the Employment Tribunal’s decision make wide-ranging criticisms of the Employment Tribunal’s procedures. Most of his criticisms simply, in our view, take issue in considerable detail with the views which the tribunal reached about various matters. 

3.	To understand the point which Miss Heal has made this morning, it is not necessary to go into the findings of the Employment Tribunal in any detail. It is sufficient to say that Mr Wilson’s claim that the University had been in fundamental breach of the trust and confidence condition in his contract of employment was based upon three specific matters: firstly, his removal from the post of Course Leader in May 1998; secondly, the investigation of withdrawals from the Institute of Personnel and Development (‘IPD’) Course, and, thirdly, the manner in which an application made by Mr Wilson for leave to complete his Ph.D.  thesis was handled.

4.	In respect of the first and third of those matters the Employment Tribunal made general findings in favour of the University. With regard to second matter it made some criticisms of the University’s attitude towards the investigation and the degree to which it did or did not involve Mr Wilson. It made findings in favour of the University on the third matter.

5.	With regard to all three matters, the tribunal clearly attached significance to the fact, as the Employment Tribunal found and related it, that Mr Wilson had made no complaint about the way he had been treated by the University until after his resignation which was by letter dated 31st January 1999 handed to Dr Berry on 4th February 1999. In relation to the complaint about removal from leadership of the Course, in paragraph 12 the tribunal said:

“… At no stage in these observations does the Applicant complain as he does to the Tribunal, that the conduct of the investigation amounted to part of an orchestrated campaign to dispense with his services, nor does he say, as he did in evidence, that he thought that the report was outrageous. …”

	At paragraph 13 the tribunal said:

“As indicated above, the Tribunal have sympathy with the views of Dr Celia Stanworth upon the proper way to conduct an investigation, but the striking feature of Mr Wilson’s position is that he made no complaint, either orally or in writing about his concerns.”

	In paragraph 19, at the very end of the Employment Tribunal’s decision, the tribunal recorded:

“It is only after the resignations had been delivered and after the Applicant had discussed the matter with his Union representative, Doctor Howson, that any complaint about his treatment was forthcoming.
… With regard to the investigation, the fall in numbers was a legitimate concern and again as to the conduct of the investigation, the Applicant made no complaint until after his resignation. …
It is very significant that up to and including the letter of resignation and the interview with Dr Berry on 4 February, no complaint was registered by the Applicant. The Tribunal finds that there was no fundamental breach of contract on the part of the Respondent and the applicant for unfair dismissal is dismissed.”

6.	Miss Heal submits that those last two sentences should be read as if there was a ‘therefore’ appearing between them and that it is therefore arguable that the tribunal misdirected itself on a point of law in taking the view that if there was no pre-dismissal complaint then there could be no fundamental breach. If the matter began and ended there we very much doubt that we would allow this matter to proceed to an appeal because it seems to us that its more likely that the sensible reading of those sentences is that the tribunal was simply finding that there was no fundamental breach and that the lack of complaint supported that. 

7.	Mr Wilson in his own submissions has referred us to a very short report in a journal of a case brought by a Miss Barbara Driskel against Peninsular Business Services where the Employment Appeal Tribunal criticised the Employment Tribunal for being overly influenced by Miss Driskel’s failure to complain immediately of the matters of sexual harassment which founded her application to the Employment Tribunal. 

8.	We do not find that case helpful. Miss Driskel had plainly, from the short report which we have, put forward an explanation for not complaining before she was dismissed, which, in effect, the Employment Appeal Tribunal said that the Employment Tribunal had taken insufficient account of. 

9.	What Miss Heal however has focussed our minds upon is what she says is the complete inaccuracy of the statement which appears in more than one place, that Mr Wilson made no complaint about the way the investigation was carried out into the fallout on the IPD Course. She has referred us to Appendix B of written submissions made by Mr Wilson where, between pages 14 and 16 of our bundle, Mr Wilson refers to a number of memoranda which were apparently in the bundle before the Employment Tribunal, and where, if the matters in the memoranda are accurately related, it is clear that Mr Wilson did make complaints about the investigation into the fallout of the IPD Course, before or at the time of his resignation. 

10. 	It seems to us that it is arguable, and we put it no higher than that, that in reaching the conclusions which it did leading up to its ultimate decision, the Employment Tribunal had overlooked the matters in the memoranda to which we have just referred. It seems to us that it is arguable, again we say no more, that had they had those matters in mind, they might not have attached the importance which they did to the alleged lack of complaint about any of the three matters which Mr Wilson resented at the time of presenting his resignation, according to his own account.

11.	On that narrow final point, we consider that the consideration of this tribunal is merited at a hearing between both parties. On that narrow point we allow this appeal to proceed.

12.	We direct that the Chairman provides his manuscript Notes of Evidence of the evidence of Mr Wilson, Professor Jon Bareham and Professor Aidan Berry. An amended Notice of Appeal is to be lodged within seven days. Skeleton arguments on both sides are to be provided not less than seven days before the date fixed for hearing. The case is to be listed for 1½ hours, Category B.