Appeal No. EAT/0795/02 DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 November 2002

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MS S R CORBY
DR D GRIEVES CBE

MR OSMAN VIRMANI	APPELLANT

ISS AVIATION UK LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT	

THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1	This is the Preliminary Hearing of an appeal against the decision of the Employment Tribunal at Reading, that the Appellant, who was represented below by a friend (Mr N’Dow), was not unfairly constructively dismissed by the Respondent Company, ISS Aviation UK Limited.  The basis of their conclusion is succinctly set out in the Tribunal’s Extended Reasons, by which the Tribunal concluded that the Appellant in fact resigned.

2	The Appellant claimed that he was unfairly dismissed on 31 January 2002 from his employment by the Respondent as a Stores Assistant.  He claimed that in fact his resignation was or amounted to a constructive dismissal due to the conduct of the Respondent in requiring him to perform duties which were outside his contract of employment and beyond his capability.  He was in fact required to drive a van, to work outside in the cold and to operate a tail-lift.

3	Letters, which were relied upon below, are included in the bundle before us; in particular that of 16 January 2002, in which he said to his employers that there were changes to his times of work and that he felt incapable of working high above ground.

4	The Respondent claimed that the duties which were allocated were temporary, as indeed was made clear orally at the time, as is recited in the Appellant’s letter of 1 February 2002, and were in any event both within the contract of employment and within the Appellant’s capability.

5	The Tribunal heard evidence from the Appellant and from Mr Culey on behalf of the Respondent and made unanimous findings of fact; that he had in fact driven the van on one of two occasions prior to 1 November 2001 without complaint; that he was required to work outside and in cold conditions on some occasions and had been supplied with warm and waterproof clothing and that he was required to operate a tail-lift on the airside on three occasions, and that that duty was temporary and occasional and not materially different from his duties on the non-airside and was with assistance from a driver of the van.

6	Unfortunately he was injured in an accident at work on 31 January 2002, when he suffered injury to his mouth and teeth, and that may well be what caused him to make the complaint he did.  But the Tribunal concluded that all the duties which he was required to perform were both within his contract and his capability, and that he had been able to perform all of them satisfactorily on the occasions he was required to do so, and that there was no evidence of conduct by the Respondent which could amount to a breach of the Appellant’s contract of employment.

7	The Tribunal directed itself in accordance with the law, correctly, and reached findings of fact within their competence.  This is an appeal which is limited to points of law.  We cannot revisit findings of fact made by the Tribunal, provided that it applied the law correctly.

8	The Notice of Appeal before us is presented by the Appellant, who has put in the appeal himself, and has not attended before us today and has sent a letter of apology in that regard, saying that he cannot attend the hearing as he is in employment, and that is obviously good news.

9	His Notice of Appeal complains of the Employment Tribunal’s failure to recognise his case of constructive dismissal under pressurised situations and refers to the fact that he suffered injury at work.  Of course if he suffered injury at work that is a matter with regard to other jurisdictions than this.  But in so far as he complains that he was compelled to work in a way that he should not have been, and to such an extent that it amounted to constructive dismissal, we have already indicated that there have been findings of fact contrary to the Appellant in that regard by the Tribunal.

10	The challenge in law, as it has to be, that is articulated in paragraph 6 of his Notice of Appeal, is as follows:

6	“The grounds upon which this appeal is brought are that the Employment Tribunal erred in law in that:
(a)	Failure of consideration
(b)	Indirect discrimination
(c)	Breach of contract ref: remoteness and causation to foreseeability.  Knew about something but failed to upheld
(d)	Constructive dismissal under pressurised situations at work.  Alleged said arguments ref: untrue facts said at the time of hearing.  Case was prejudiced by way of unfounded bungled arguments of a fee-earner solicitor.”

11	It is unclear to us what ‘fee-earner solicitor’ is a reference to.  The Respondent was represented by a Human Resources Manager, and I assume it is not in any event a reference to ‘bungled’ arguments by them because they succeeded.  There may be some reference to Mr N’Dow – the Appellant’s friend.  We have no idea whether he was or was not a ‘fee-earner solicitor’.  But no particulars are given as to the respects in which any arguments put forward either before or against him were ‘bungled’ or ‘unfounded’ and that cannot of itself amount to a separate head.

12	Therefore we turn to the four that he has recited, doing our best to draw something out of them in the absence of any assistance by the Appellant himself or anyone representing him.

13	The fourth matter “Constructive dismissal under pressurised situations at work” of course is only a recital of his original complaint, which has been rejected, subject to any indication of error of law, correctly, on the facts and properly in accordance with the law by the Tribunal. 

14	We do not understand what is meant by “failure of consideration”.  If that means that the Tribunal did not give adequate consideration to the case, then we have already indicated that there have been fairly full Extended Reasons provided, and in any event, before he can attack the matter by way of error of law, some particular matter has to be addressed.  If the legal concept of “failure of consideration” is being addressed, namely that it is suggested that there was constructive dismissal because the employer was in fundamental breach of contract, and thus in some way described as a “failure of consideration” by the employer, that too is a matter which was resolved on the facts against the Appellant.

15	Again, we do not know what “breach of contract” is referred to if it is not to a reference to the fact that the Tribunal found, unchallengeably as we see it, that the employers did not dismiss, thus in breach of contract, but rather that there was a resignation; and we have no idea what reference is being made to “remoteness and causation to foreseeability”.

16	In his letter of apology to the court today, received today, the Appellant says this:

“I refer the judge to the facts of this case and specifically to paragraph (b) of my Notice of Appeal dated 23 June 2002.”

17	We have looked at the facts and cited the material ones, and as I have indicated there must be an appeal in law against them before we can reconsider them.  But, insofar as specific reference is made to paragraph (b), this is to the words “indirect discrimination”, set out in the Notice of Appeal.

18	We assume from that that it is suggested that in some way there was discrimination against the Appellant, in his view.  But that was not the basis of his case; his case was a claim for unfair dismissal, as is made clear in his Originating Application to the Employment Tribunal and the decision of the Tribunal, not a claim for indirect discrimination on any grounds.  No case in that regard is made out, nor is or would be likely to be mentioned in those circumstances, in the decision of the Employment Tribunal.

19	In those circumstances, no matter is raised which could have any relevance to issues under the discrimination Acts or any of them, whether by reference to race, sex or disability discrimination in any event being unclear.

20	In those circumstances this appeal is dismissed.