Appeal No. UKEAT/0037/07/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 July 2007

Before
HIS HONOUR JUDGE PETER CLARK
MR G LEWIS
MR P M SMITH

MR P BOYS	APPELLANT

CVME TRUCK RENTAL LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR R A CAPEK
Representative	
For the Respondent	MR T WALKER
(of Counsel)
Instructed by:
Messrs Wortley Byers LLP Solicitors
Cathedral Place
Brentwood
Essex
CM14 4ES	

SUMMARY

UNFAIR DISMISSAL
Constructive Dismissal 
Costs

Whether, further evidence admissible at costs hearing in relation to factual issue determined at the substantive hearing (No). Costs in the appeal.

HIS HONOUR JUDGE PETER CLARK

1.	This is a costs appeal.  The parties to these proceedings before the Ashford Employment Tribunal were Mr Boys, Claimant, and CVME Truck Rental Limited, Respondent.  We shall so describe them.

2.	The Claimant was employed by the Respondent, finally as an Accounts Administrator, from April 1998 until his resignation effective on 25 November 2005.  He brought a claim of unfair constructive dismissal before the Tribunal.  The claim was resisted.  It came on for substantive hearing before a Tribunal chaired by Ms VG Wallis on 8 and 9 June 2006.  By her judgment with reasons registered on 4 July (EWR1), the Tribunal dismissed the claim.  They found that the Claimant had not been dismissed.  Specifically, they found that the Respondent was not in repudiatory breach of the implied term of mutual trust and confidence.

3.	Having done so they added, at paragraph 36 of those reasons:

“The Tribunal further concluded that it was significant that the Claimant’s initial resignation letter said nothing about the matters that he told the Tribunal had troubled him and led him to resign.  Given the wording of his first grievance letter, the Tribunal is driven to the conclusion that the Claimant had found another job, or thought he was about to obtain other employment, and that is why he left the Respondent’s employment.  Once he became disappointed that he was not to be offered any package despite his efforts on behalf of the Respondent, he focused on the negative aspect of the working relationship between himself and Mr Browning in order to present his case for constructive dismissal.” 

That conclusion was based on findings that appear at paragraph 21 of those reasons.

4.	By a letter dated 24 July the Respondent’s solicitors made an application for cost.  It was there accepted that the issue of breach of the implied term was arguable.  They contended that the claim was ultimately misconceived because causation, the reason for resignation, could not be made out.  As the Tribunal found, the Claimant left the employment because he had or thought he had a new job to go to, not because of the Respondent’s conduct.  The Tribunal accepted that contention in a costs judgement with reasons registered on 18 October.  They awarded the sum of £5,000 costs in favour of the Respondent.  The overall costs of that party had been put at more than £20,000 excluding VAT.

5.	Their reasoning is encapsulated at paragraph 21 to 26 of their costs reasons (EWR2), in particular at paragraph 21 they said, under the heading ‘conclusions’:

“The Tribunal accepted Mr Capek’s submission that if an employee finds another job before resigning in respect of his employer’s fundamental breach, this will not in itself defeat a claim of unfair constructive dismissal.  However, in this case the Tribunal have found that there had not been a fundamental breach of the implied term of mutual trust and confidence and had also been satisfied that the Claimant had not resigned in response to the Respondent’s conduct but had resigned because he had found, or thought that he had found, other employment.” 

6.	Against the costs decision the Claimant appealed.  That appeal was considered at a preliminary hearing held before HHJ Birtles and members on 20 March 2007.  That division permitted the appeal to proceed on grounds 4, 5 and 6 of the appeal only.  We shall consider each ground in turn.

Ground 4
7.	Mr Capek submits that paragraphs 21 and 36, EWR1, cannot really be said to amount to findings of fact by the Tribunal, and that he ought to have been permitted to adduce further evidence at the cost hearing, not limited to the Claimant’s means, (properly permitted by the Tribunal); that evidence, by way of a further witness account from the Claimant and certain documentary evidence seen by the Tribunal, (EAT bundle pages 72 to 73), was directed to the proposition that the Claimant had not resigned because he had or thought he had another job to go to.  We decline to make any general observations on the broad question of what further evidence, apart from that relating to means, can and should be admitted at a subsequent cost hearing.  We shall deal with the particular facts of this case.

8.	The principal question is whether at EWR1 paragraphs 21 and 36 the Tribunal reached a finding of fact that the Claimant did not leave the employment in response to the Respondent’s repudiatory breach of the implied term of trust and confidence.  We are satisfied that they did, as explained in their subsequent cost reasons.  Although, as Mr Capek correctly submits, the Tribunal were not in the first decision dealing with the questions to whether the claim based on constructive dismissal was misconceived, they were required to consider, (a) whether there was a repudiatory breach of contract by the Respondent, and (b) if so whether that breach caused the Respondent to resign.  They answered both questions in the negative.  They had evidence from the Claimant as to why he resigned and found his explanation unconvincing.  Ms Wright, the Respondent’s company secretary, told the Tribunal that the Claimant had told her that he had had an interview for a job and was almost certain he had got it.  Later he said that he had been unsuccessful.

9.	The wording of his resignation letter, The Tribunal thought, indicated that was his reason for leaving.  In evidence he gave a different account, namely that he thought he and wife would be going on holiday.  That arrangement changed, so he could have given longer notice.  In his further statement, prepared by Mr Capek for the purposes of the cost hearing, which evidence the Tribunal declined to admit at that hearing, the Claimant wished to say that the reason why he and his wife had not taken the holiday was because he had loaned his daughter £10,000.  We note that that withdrawal from his bank account is dated 7 October.  His letter of resignation was dated 14 November.

10.	In our judgement the Tribunal was perfectly entitled to decline to admit further evidence on an issue, the causation question, which had been determined as between the parties at the first hearing following evidence and argument.  It could not now be reopened.  In so finding, we do not base our ruling on the submission advanced by Mr Walker that at the cost hearing it was agreed that the Claimant’s further evidence would not be adduced.  Paragraph 9, EWR2, refers to a dispute between the parties as to its admissibility.  The Tribunal adjourned for discussion between the representatives.  Following that discussion they record that no agreement was reached.  The agreement later referred to in that paragraph was that evidence as to means would be admitted.  We do not understand the Claimant, through Mr Capek, to have agreed that the application to adduce further evidence on causation was abandoned.  At the highest it can properly be put by Mr Walker, it is that it was not pursued after the representatives returned to the Tribunal after the short adjournment.

Ground 5
11.	Here it is suggested by Mr Capek that at paragraph 21 EWR2, the Tribunal has demonstrated that it has not properly examined the question as to whether the Claimant resigned as a result of the Respondent’s conduct, even if that conduct did not amount to a repudatory breach of contract.  That is not how we read paragraph 21.  There, it seems to us, the Tribunal, (a) accept that there may be more than one reason for resignation, see Jones v F Sirl & Son (Furnishers) Ltd [1997] IRLR 493, Nottinghamshire County Council v Meikle [2004] IRLR 703, (b) find that the Claimant did not resign in response to the Respondent’s conduct, that conduct falling short of a breach of the implied term of trust and confidence, and (c) find that the sole reason for resignation was the Claimant’s belief that he had found another job.

Ground 6
12.	Here it is said, as a variation on Ground 5, that the claim failed ultimately on the basis that no repudiatory breach was found, and it is accepted by the Respondent that the Claimant’s contention that the Respondent was in repudiatory breach was not misconceived.  Therefore, submits Mr Capek, the bringing or conducting of the proceedings was not misconceived within the meaning of rule 40(3) of the Employment Tribunal Rules of Procedure 2004.  Further he submits that the Tribunal found that subjectively the Claimant knew that his reason for resignation was that he believed he had found a new job, whereas the test is, as a matter of law, an objective one.

13.	As to the first point, as we indicated in relation to the closely allied, as Mr Capek put it, fifth ground of appeal, we are satisfied that the Tribunal did not reject the claim of constructive dismissal solely on the basis of their finding of no breach, but also on the causation issue.  As to the second point, Mr Capek accepted that if subjectively the Claimant knew that he had resigned solely because he thought he had another job to go to, then objectively the claim had no reasonable prospect of success.  Put another way, as Mr Walker submitted, the Tribunal made an objective finding of fact as to the Claimant’s state of mind which led him to resign.

Conclusion
14.	Having considered each of the three remaining ways in which the appeal is put, we are not persuaded that any error of law in the Tribunal’s approach is made out.  Consequently, this appeal fails and is dismissed.

HIS HONOUR JUDGE PETER CLARK
15.	Following our judgement in this case, Mr Walker makes an application on behalf of the Respondent for costs in the appeal.  We have been provided with a schedule of costs.  The total amount is said to amount to £7,877.50 plus value added tax.  Mr Walker, relying on rule 34A of the EAT rules, submits that in a number of respects these appeal proceedings have been conducted unreasonably.  He also argues that the appeal was unnecessary and improper and that it was misconceived, the concept which led to the appeal in the first place.

16.	We do find that certainly in regard to those grounds of appeal which were dismissed at the preliminary hearing, they can properly be described at misconceived.  We can see that there may have been an argument on ground 4 of the appeal as a matter of general public interest.  In the event we find that it did not arise on the facts of this case, but we also think that there was a degree of unreasonableness in the conduct of the appeal, particularly some of the more unnecessary correspondence from Mr Capek on behalf of the Claimant, for example in relation to a suggestion that Miss Wright’s witness statements had been delivered late by the Respondent before the Employment Tribunal hearing, and also in relation to the question of what documents were seen by the Employment Tribunal at the costs hearing.

17.	Taking all those matters into account, we are satisfied that the Respondent passes through the gate in rule 34A(1), so that it is open to us as a matter of discretion to make an order for cost in favour of the Respondent in this appeal.  We then, of course, consider the Claimant’s ability to pay.  There was before the Employment Tribunal a statement of means.  Some slight alterations have been made to that statement, in particular it appears that the loan to the Claimant’s daughter now stands at £7,000, she having repaid some £3,000; I understand that she is a doctor.

18.	Plainly the Claimant has the ability to pay in the sense that he owns his home outright, jointly with his wife, and we are told that the equity in that property is about £260,000.  Doing the best we can and taking into account his limited income, we think the proper amount to award by way of cost in the appeal is that of £2,000 inclusive of VAT.  So that, in addition to the cost ordered by the Employment Tribunal, there will be a further £2,000 costs in the unsuccessful appeal.