Appeal No. EAT/0649/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 October 2001
Judgment delivered on 9 November 2001

Before
HIS HONOUR JUDGE J R REID 
MR W MORRIS
MRS R A VICKERS

MR COLM DALY	APPELLANT

USBORNE PUBLISHING LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT
In Person	

JUDGE J R REID QC

1.	This was an ex parte preliminary hearing of Mr Colm Daly’s appeal against the decision of an Employment Tribunal held at London Central on 2 January 2001.  The Tribunal dismissed Mr Daly’s claim for “Unfair Dismissal (Constructive) Outstanding Pay/Lieu of Not.”  The Tribunal held that Mr Daly had resigned and had not been constructively dismissed, that his employers had not been in breach of contract, and that since he had resigned with immediate effect he had no claim for pay in lieu of notice.  Mr Daly submitted grounds of appeal against the decision, a letter to the Employment Appeal Tribunal and further written grounds of appeal.  He also submitted an affidavit in support of his grounds of appeal.  In addition we had the advantage of reading his skeleton argument and hearing oral submissions from Mr Daly.

2.	Mr Daly’s complaints were extensive and wide-ranging but can be broken down into four categories.

(1)	The Tribunal did not deal with his complaints of discrimination against his former employers.

(2)	There had been a breach of Mr Daly’s human rights during the course of the hearing in a variety of respects in particular in the Tribunal allowing a medical report in relation to Mr Daly’s mental condition to be admitted and in limiting the matters he was allowed to deal with.

(3)	The Tribunal was wrong in the findings of fact, in particular in holding that the employer had not been guilty of repudiatory conduct in the way he had been treated over his ten years employment.

(4)	The Tribunal was wrong in not holding that the employer was not in breach of its contract is not refusing to allow Mr Daly to apply for the post of IT Manager.

3.	As to the first complaint, the originating application signed by Mr Daly identified the type of complaint he wished to make in the terms set out above in this decision.  Mr Daly complained to us that the solicitors who had acted for him at the time he launched his claim in the Employment Tribunal had cut out the various complaints about discrimination and unequal treatment which he had wished to make.  Whatever the background to the presentation of the originating application, Mr Daly signed the form as it was submitted.  The employer came to deal with the case which was set up by the originating application and the Employment Tribunal was limited to dealing with the case which was put before it.  Mr Daly can have no basis for complaining that he was not allowed at the hearing to pursue a case which was not before the Tribunal.

4.	So far as the breach of human rights in the course of the hearing is concerned, the medical report was something which Mr Daly had given in confidence to his employers.  It was clearly material to the issues being raised by Mr Daly and was included in the employer’s bundle for the hearing.  Mr Daly told the Employment Appeal Tribunal that he used this bundle in the course of the hearing.  Whilst it was no doubt very painful for him to have intimate and distressing details raised in public, it cannot be said that it was improper for the Tribunal to consider the report, the authenticity of which was not in dispute.

5.	The limitation which Mr Daly perceived as being put on him in the course of the hearing arose from his desire to pursue matters which were not the subject matter of his claim and from the necessity for the Tribunal to keep a litigant in person to the issues which were relevant.  Mr Daly presented himself as a somewhat emotional man who strongly felt that his contribution to his employer had been undervalued.  It may well be that he would have wished to ventilate matters which went beyond the bounds of his claim as presented, but he cannot complain if he was prevented from doing so.

6.	As to the Tribunal’s findings of fact, Mr Daly believes that the Employment Tribunal was misled and accepted evidence which was inaccurate.  His problem, so far as the Employment Appeal Tribunal is concerned, is that there was evidence on which the Employment Tribunal could reach its decision.  The Employment Appeal Tribunal deals with issues of law.  It can only interfere with findings of fact if they can be said to be perverse.  That cannot be said of the findings in the present case.  The Employment Tribunal found there was a difference in perception between the employer and Mr Daly as to his role in the company and its importance.  It held that Mr Daly’s perception was inaccurate.  It went on to hold that the creation of a new post of IT Manager was not in effect a demotion of Mr Daly in his role as a day to day IT Support Worker.  It held that the employer had dealt sympathetically with Mr Daly’s absences through illness and that the illness was not in any way due to an unsafe system of work.  It also held that the employer had not been in breach of its obligations to provide training to Mr Daly: again the Tribunal preferred the employer’s account on this point.  All of these were findings which the Employment Tribunal was entitled to make and with which it is not possible for Employment Appeal Tribunal to interfere.

7.	So far as the claim that there was a breach of contract in not permitting Mr Daly to apply for the new post of IT Manager is concerned, according to Mr Daly the copy of the Employer’s Handbook presented to the Employment Tribunal was missing vital pages, including a page which contained the passage “Staff should note that they could apply for any job advertised by the Company”.  This may or may not be accurate.  At the time Mr Daly left his job, the proposed new post of IT Manager had not been advertised.  He left after he was told of the proposed creation of the post and that it was not being offered to him.  He could not appreciate, according to the finding of fact of the Employment Tribunal, that he did not have the paper qualifications, the technical ability or indeed the temperament for the job.  If in the course of the meeting at the end of which he resigned he was told he could not apply for the job, it was in the context of telling him it was pointless for him to apply because of his lack of qualifications and did not amount to a breach of contract.  There would have been nothing to stop him putting in an application when the post was advertised but he would not have any hope of success.  In our judgment it cannot be properly argued that what passed at the meeting amounted to a breach of contract by the employer such as to entitle Mr Daly to treat his contract as having been repudiated.

8.	In the course of his various documents and his oral submissions Mr Daly developed the points with which we have dealt and raised a considerable number of variants on them.  There was nothing in them which suggested there was any arguable point which should go to a full inter partes hearing.  In the circumstances the proper course is for us to dismiss the appeal at this stage.