Appeal No.EAT/0771/02 ST

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 November 2002

Before
THE HONOURABLE MR JUSTICE WALL
MR B R GIBBS
MRS J M MATTHIAS

MR L M EDMEAD	APPELLANT

SOMERSET COUNTY COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR L M EDMEAD
(the Appellant in Person)	

THE HONOURABLE MR JUSTICE WALL

1	This is the Preliminary Hearing of an appeal by Mr Edmead against the Decision of the Employment Tribunal sitting at Exeter on 15 and 16 October 2001, with the decision being sent to the parties on 26 October 2001.

2	Mr Edmead made a claim of constructive dismissal against his employers, Somerset County Council and he also made a claim of sex discrimination.  We have today heard Mr Edmead, who appears in person, argue on his Skeleton Argument and in the light of the decision we have reached propose only to sketch a very brief outline.

3	Mr Edmead was employed as a Community Care Assistant with the Workpower organisation, Binden Road in Taunton.  He was initially on probation but was eventually given full employment contractual status.

4	In the event he resigned from his employment.  His case is that he resigned over a number of issues representing a fundamental breach of his contract but the final straw, as he perceived it, was reading his personal file – something which he had had to make substantial efforts in order to do – on which he says there were a number of untrue comments and documents which he believed had been fabricated.  Accordingly, he took the view that the implied term of trust and confidence had been fundamentally breached by the County Council and he was obliged to resign

5	The case for the County Council was quite simply that he had resigned.  They had not been in fundamental breach of contract or in breach of contract at all and therefore there was no question of any form of constructive dismissal.
6	The Tribunal, after a two day hearing, took essentially the same view; namely that there was not a breach of contract let alone a fundamental breach of contract and accordingly it dismissed Mr Edmead’s claim.  It also dismissed Mr Edmead’s allegations in relation to sex discrimination.

7	Before us Mr Edmead, with the help of his Skeleton Argument, has sought to persuade us that there were a substantial number of issues leading up to his resignation which were not properly encompassed in the Tribunal’s reasoning and that in particular if the Tribunal had recorded a number of important concessions which were made by the County Council’s witnesses in cross-examination a different picture would have emerged; and that picture (he says) would have been sufficient to enable the Tribunal, indeed to oblige the Tribunal, to say that there was here a fundamental breach of the implied term.

8	Mr Edmead has taken us through the Skeleton Argument and the points which he makes and cross-referenced them to the Tribunal’s reasons.  It is clear, even from the Tribunal’s reasons, that there were points on which the Tribunal took the view that the County Council had not behaved in an appropriate way, although it also took the view, taking the matter in the round, that nothing in the County Council’s conduct was in any way sufficient to warrant Mr Edmead’s constructive dismissal.

9	This is a difficult appeal and we feel it is finely balanced.  On the one hand Mr Edmead has to appreciate that findings of fact are essentially a matter for the Tribunal and not for the Employment Appeal Tribunal and that if at the end of the full hearing the Employment Appeal Tribunal comes to the view that the Tribunal was entitled to make the findings of fact that it did, then this appeal will on its full hearing be dismissed.
10	However, we do not think it would be right at this stage to dismiss the appeal without a full hearing.  Accordingly we propose to allow it to proceed on the basis of the Skeleton Argument which has been put forward to us today which, in our view, should effectively stand as the Notice of Appeal.

11	It will be necessary, in these circumstances, for the Chairman’s notes to be requested in relation to the cross-examination by Mr Edmead of four witnesses and they are Debbie Pyke, Steven Horne, Lynne Stone and Martin Walsh.  We will direct the Chairman’s notes of Mr Edmead’s cross-examination of those witnesses should be prepared.

12	We do say to Mr Edmead that we understand entirely that he feels he did not have a fair hearing in the Tribunal below, although he accepts and accepted in the course of argument this morning that questioning, certainly by one of the lay members, was objective and overall helpful.

13	We do not think, with respect to him, that the allegations of bias which he makes in any way advance his claim or are relevant to the issues which he wishes to put forward.  In those circumstances the appeal will be permitted to go forward on the argument as to constructive dismissal and whether or not the Tribunal erred in failing properly to record the evidential basis upon which Mr Edmead put forward his case, and accordingly was wrong in law to decide that the factual basis was insufficient to warrant a constructive dismissal.

14	We do say to Mr Edmead, however – and we hope he understands – that this Tribunal has to accept the notes of the Chairman as effectively the record of the proceedings and if the Chairman’s notes do not bear out the assertions which Mr Edmead makes we think he would be well advised to reconsider his position because on that basis there would be very little to contradict the proposition that the Tribunal’s findings of fact were accurate and fair in all the circumstances.  

15	We think, as we indicated a moment ago, that he has sufficient material in the Skeleton Argument to permit this matter to go forward to a full hearing and that is what we will direct.  Skeleton Arguments from both sides not later than 14 days before the hearing.