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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mervyn v BW Controls Ltd [2020] EWCA Civ 393 (16 March 2020) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2020/393.html Cite as: [2020] WLR(D) 165, [2020] IRLR 464, [2020] EWCA Civ 393, [2020] ICR 1364 |
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ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MRS JUSTICE ELISABETH LAING
UKEAT/0140/18/BA, [2019] UKEAT 0140_18_2803
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE SINGH
and
LADY JUSTICE ASPLIN
____________________
MARION MERVYN |
Appellant |
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- and - |
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BW CONTROLS LTD |
Respondent |
____________________
Richard Shepherd (instructed by Bennetts Solicitors, Bristol) for the Respondent
Hearing date: 19 February 2020
____________________
Crown Copyright ©
Lord Justice Bean :
The ET1 claim form
"On 14 November 2016 I had to walk out of my workplace due to stress. I have been working at BW Controls for 11 years. Lee Fowler has made it very difficult for me to carry out my job correctly and legally."
"Events leading up to this decision include being humiliated by Lee Fowler in front of a member of staff... this started happening in July 2016. When I let Lee Fowler have the information he requested, Lee said he did not agree and would ask "Julie" ... this happened on a number of occasions with Lee Fowler undermining my capabilities. On 14 November 2016 I notified Lee Fowler of discrepancies… he disagreed with me again and I asked, "are you calling me a liar" at this point he was halfway out my office door and walked away."
"I notified a colleague Simon Hawkes that I was going home as I felt unwell. I believed I had been called a liar yet again."
…. "Other things happening include favourite members of staff using vans for personal use. When I protest about this Lee Fowler says it has been agreed by the accountant and that it is none of my business. Other duties that were not in my contract included making up to 30 - 40 drinks a day, cleaning, lifting and carrying heavy boxes upstairs. I am the only female in the building. …I work through my lunch break but I am expected to deduct 30 minutes from my timesheet. I am the only person on the weekly payroll that does not receive an overtime rate."
"After I left the building on 14 November 2016 I never spoke to anyone other than my partner Keith. On the evening of 15 November 2016 I received a text message from Julie Fowler, she asked if I was okay and if I wanted to talk. I replied back to Julie Fowler that I was not okay and would write a letter to Lee. I offered to bring in company property that was needed and asked for some personal items that belonged to me."
"…At this point I still was not well and suffering from stress things were said via text message that Lee and Julie Fowler interpreted as my resignation. Julie Fowler stated that I was no longer an employee of the company. I did not say I had resigned or followed it up with a resignation letter as Lee Fowler has said. The letter I sent to Lee Fowler on 17 November 2016 was a grievance letter as I was advised to send this by Citizens Advice and ACAS."
"Neither Lee nor Julie Fowler has responded to the contents of the Claimant's grievance letter saying that I have not put anything in writing."
"Lee Fowler also states [in] his letter that he accepts my "resignation" on 14 November 2016, as per my text 15 November and letter dated 17 November 2016? Lee Fowler also states that if I had not "resigned" he would have commenced disciplinary action as I left the building without permission. I notified Simon Hawkes a senior member of staff I was going home."
"I was forced to leave my workplace due [to] the build up of stress making me ill. Ideally, why would I leave 5 weeks before Christmas and just before I was due to receive my bonus which could have been up to £2,000? I have received a bonus for every year for 11 years."
The ET3 response form
Paragraph 9 contained information about the incident on 14 November 2016: "Later the Claimant shouted at another member of staff, Simon Hawkes, words to the effect of 'tell him he can stuff the job up his arse', this was within the hearing of the Respondent's clients. At approximately midday the Claimant walked past Mr Fowler's office and shouted, "stuff your fucking job" and left the premises a few minutes later. It is denied that the Claimant told Simon Hawkes that she was going home because she felt unwell."
Paragraph 10: "On 15 November 2016, Mrs Fowler sent a text message to the Claimant asking if she was OK. In the text message correspondence that followed it was clear that the Claimant had resigned in that she said she would return company property, would take what was hers and asked for her P45. The resignation was further confirmed in the Claimant's letter to the Respondent dated 17 November 2016."
Paragraph 21: "Further in the event that the Claimant had not resigned the Respondent's avers that the Claimant's behaviour on 14 November 2016 and matters discovered subsequent to her departure would have warranted disciplinary action."
Paragraph 22: "At all material times the Respondent and its Directors acted with reasonable and proper cause in their dealings with the Claimant. It is denied that the Respondent is in breach of contract. It is further denied that the Claimant resigned in response to the actions of the Respondent or its Directors."
Paragraph 23: "The claim for unfair dismissal/constructive unfair dismissal is denied."
The telephone case management hearing
"3. Dealing firstly with unfair dismissal, the claimant has suggested she was constructively dismissed but before me she was clear that she neither resigned nor intended to resign. Her case is that she was "actually" dismissed by the respondent. She says the respondent incorrectly interpreted her behaviour as amounting to resignation.
4. If she was indeed actually dismissed, that dismissal would have to be unfair, since there was no procedure attendant upon it. If, on the other hand, she resigned, her claim must fail, since she does not allege that she did so because of the respondent's actions (indeed she says there was no resignation at all).
5. It follows that although the pleadings go in some detail into the alleged misbehaviour of Mr Fowler, the tribunal will not need to hear evidence on that subject."
The ET decision
"3.1. The issues which fell to be determined have been discussed at a Case Management Preliminary Hearing which had been conducted by Employment Judge Reed on 8 February 2017. The issues identified within his Case Management Summary were confirmed by the parties at the start of the hearing."
"3.2. In relation to the complaint of unfair dismissal, the Claimant had informed Employment Judge Reed that she did not resign and that the Respondent had dismissed her by treating her behaviour as a dismissal. The Judge stated, in paragraphs 3 and 4 of his Summary, that the Claimant had therefore either been dismissed (in which case, unfairly) or she had resigned (in which case, any claim of constructive unfair dismissal would have been likely to have failed because she did not allege she had resigned because of the Respondent's actions). If the Claimant was dismissed, the Respondent sought to run arguments of contributory conduct and/or that a fair process would not have made any difference (the principle in the case of Polkey)."
"5.4 Looking at the words used by the Claimant on 14 November and the text messages which were then sent, there could have been no doubt that the Claimant had indicated that she had resigned. Even the Claimant herself accepted in cross-examination that the text would reasonably have been interpreted as a resignation.
5.5 Even if the words used on that day could have been said to have been spoken in the heat of the moment, her text on the 15th either constituted or confirmed the Claimant's resignation. The subsequent events also corroborated the position; the text of 16 November at 6.18pm in which she asked for her P45 and the letter of 17 November in which she says that she had "walked out of her job."
5.6 We struggle to explain why the Claimant had resigned in the circumstances, but we did not need to. Similarly, we would not have been able to have explained why, if we had found against the Respondent, it had chosen to dismiss her. The lack of obvious motive on either [side] was a curious feature of the case.
5.7 We also noted that the Claimant had struggled to identify the point at which she said she had been dismissed, on her own case; she initially claimed that it had been during a telephone call with which Mr Larder had with Mr Fowler on 16 November, but she then claimed it had been in the text message for that day at 17.39pm, when she had been wished good luck for the future.
5.8 Accordingly, the Claimant's complaint of unfair dismissal failed. She was not dismissed and she did not claim that any resignation had amounted to a constructive unfair dismissal." [emphasis in the original judgment]
The EAT decision
"I claimed that I was constructively unfairly dismissed and the Respondent acknowledged this in its ET3. However, having found that I resigned, the ET failed to go on and consider whether I did so in circumstances that would amount to a dismissal contrary to s 95(1)(c) ERA 1996. The ET ought properly to have done so where such a claim was plainly an alternate pleading by a self-representing litigant."
"92. The ET1 is what gives the ET jurisdiction to decide a dispute; see Chapman v Simon [1994] IRLR 124. The ET does not have jurisdiction to consider a claim not made in the ET1 nor does it have a general duty to consider everything raised in the ET1 (see Mensah) even when the Claimant is a litigant in person. The question on the facts of this case is whether, where a potential constructive dismissal claim is made in the ET1, as I consider it was here, and it is a potentially central aspect of the claim, rather than [a] peripheral matter, the ET should consider that claim, or satisfy itself that the litigant in person has inadvertently withdrawn that claim.
93. Here, the ET1 described facts which could properly be analysed as a constructive dismissal claim. The Claimant however had not analysed them in that way and according to the case management decision had clearly said that she had not resigned. Nevertheless, she was a litigant in person.
94. Should the ET, on these particular facts, either have gone on to consider a constructive dismissal claim or satisfied itself that the Claimant had withdrawn her claim and had understood that she had withdrawn it? That might be the case because of the technical nature of the relationship between dismissal and constructive dismissal. It is clear from the ET1 that the Claimant felt that she had been dismissed, but that she was not able to articulate that claim in legal terms.
95. I have not found this an easy issue to decide. On the one hand the Claimant was not represented and the ET1 appears to describe what in some ways might be seen as a paradigm case of constructive dismissal. On the other hand, perhaps because the Claimant had not had any advice about her position, her clear stance throughout the litigation was that she had not resigned. It was still her position when she gave evidence to the ET and when she made her closing submissions.
96. In this situation I consider that the ET cannot be criticised for not doing more than it did to investigate the Claimant's claim. It would have been impossible for the ET to investigate this issue without pressing the Claimant on the fundamental aspect of the way that she put her case and had been clearly putting her case for some considerable time, which was that she had not resigned. There was no constructive dismissal claim available to her unless she had resigned.
97. I do not consider that the ET could properly have done so without descending into the arena. The ET would in effect have had to ask the Claimant to retract from a fundamental factual plank of her claim as it had developed in the correspondence in the Case Management Hearing and as it was expressed in her evidence and closing submissions.
98. In these circumstances I do not consider that the ET was under any duty to probe any further than it did. I therefore consider that the ET cannot be criticised and did not err in law in adopting the approach which it did to this case. I therefore dismiss the appeal,"
The Claimant's submissions
The Respondent's submissions
The material before the ET
a) Her ET1 lodged on 4 December 2016 contained three pages of "additional information" beginning with the sentence "on 14 November 2016 I had to walk out of my workplace due to stress".
b) The Respondent's ET3 stated that it was clear that the Claimant had resigned.
c) The Claimant's completed case management agenda form repeatedly describes her complaint as being "unfair dismissal (including constructive dismissal)" as well as a separate claim for discrimination.
d) A covering letter from her enclosing the completed agenda included the paragraph "the claim is for unfair dismissal (including constructive dismissal) and discrimination. There was no resignation on 14 November 2016 and no contact from my employer Lee Fowler under 25 November 2016". Later in the same document we find:-
"I had always acted in the interests of the company, as I had for the last 11 years. I had to leave my office because of Lee Fowler's unreasonable behaviour and making it impossible for me to carry out my work correctly and legally. … I am claiming unfair dismissal including constructive dismissal"
e) The Respondent's agenda form, in response to the question asking what were the issues or questions for the tribunal to decide, answered (so far as material):-
"Was the Claimant dismissed? If so, was she unfairly dismissed?
Did the Claimant resign? If so, can she claim constructive dismissal?"
Julie (15 Nov at 17:11): Hi Marion, I understand you went home from work upset yesterday and haven't been in today. Would you give Lee or I a ring when you get this message only on a personal note we wanted to know if you are okay. Regards, Julie.
Marion: (15 Nov at 17:39): Hello Julie. I am not okay. After 11 years of service I find myself in a position where I can no longer work for bw controls anymore. I will forward a letter to Lee and return property that belongs to the company. Keith will collect my property at the end of the week. Regards, Marion.
Julie (15 Nov at 17:56): I am very sorry to hear this and it is certainly something that Lee and I would not want. I am at home on my own so if you would like to talk then please give me a ring.
(after several more exchanges)
Marion (16 Nov at 19:18): You are not my employer, stop harassing me with your stupid texts. I will be there at 09:30 tomorrow [to collect my P45].
Julie (16 Nov at 20:31) Marion, as a director of BW Controls I am telling you not to attend our offices until an appointment has been agreed as you are no longer an employee of the company.
The law
"The Tribunal may at any stage of the proceedings, on its own initiative or on application, make a case management order. Subject to Rule 30(A) 2 and 3 [neither of which is relevant here] the particular powers identified in the following rules do not restrict that general power. A case management order may vary, suspend or set aside an earlier case management order where that it necessary in the interests of justice, and in particular where a party affected by the earlier order did not have a reasonable opportunity to make representations before it was made."
"19. Accordingly, it is now definitively recorded that the issues between the parties which will be determined by the tribunal are as follows:
a. Did the respondent act reasonably in treating capability as a sufficient reason for dismissal and in particular did the respondent act reasonably in concluding that the clamant lacked the competencies referred to in sub paragraphs b, c and d of the letter of 27 August 2009 referred to above?
b. Did the respondent otherwise act unreasonably in its decision to dismiss the claimant from his employment?
c. Was dismissal within the range of reasonable responses?"
30. … {The] list was described by the employment judge as the issues "definitively recorded" by him. He recorded them following the discussions at the PHR by Mr Parekh and Mr Ross, appearing for the Council, with him. The list was not the product of any adjudication, let alone any binding adjudication, of a dispute of substantive fact or law between the parties, such as whether capability was the reason for the dismissal, or of a procedural application or dispute.
31. A list of issues is a useful case management tool developed by the tribunal to bring some semblance of order, structure and clarity to proceedings in which the requirements of formal pleadings are minimal. The list is usually the agreed outcome of discussions between the parties or their representatives and the employment judge. If the list of issues is agreed, then that will, as a general rule, limit the issues at the substantive hearing to those in the list: see Land Rover v. Short Appeal No. UKEAT/0496/10/RN (6 October 2011) at [30] to [33]. As the ET that conducts the hearing is bound to ensure that the case is clearly and efficiently presented, it is not required to stick slavishly to the list of issues agreed where to do so would impair the discharge of its core duty to hear and determine the case in accordance with the law and the evidence: see Price v. Surrey CC Appeal No UKEAT/0450/10/SM (27 October 2011) at [23]. As was recognised in Hart v. English Heritage [2006] ICR 555 at [31]-[35] case management decisions are not final decisions. They can therefore be revisited and reconsidered, for example if there is a material change of circumstances. The power to do that may not be often exercised, but it is a necessary power in the interests of effectiveness. It also avoids endless appeals, with potential additional costs and delays.
32. While on the matter of appeals I would add that, if a list of issues is agreed, it is difficult to see how it could ever be the proper subject of an appeal on a question of law. If the list is not agreed and it is contended that it is an incorrect record of the discussions, or that there has been a material change of circumstances, the proper procedure is not to appeal to the EAT, but to apply to the employment tribunal to reconsider the matter in the interests of justice."
"14. Ever since the Woolf reforms, parties in the High Court have been required to agree lists of issues formulating the points which need to be determined by the judge. That list of issues then constitutes the road map by which the judge is to navigate his or her way to a just determination of the case. Employment tribunals encourage parties to agree a list of issues for just that reason and, if advocates are retained on both sides, it is right and proper for a list of issues to be prepared.
15. In paragraphs 32-33 of Land Rover v Short (2011) UKEAT/0496/10/RN Langstaff J approved the submission of counsel that:-
"it was trite law that it was the function of an Employment Tribunal to determine the claims which the claimant had actually brought, rather than the claims which he might have brought and that accordingly the claimant was limited to the complaints set out in the agreed list of issues.""
"17. Professional advocates were retained in the present case and agreed the list of issues which was given to the employment judge (so we were told) on the morning of the hearing. The judge was, therefore, entitled to proceed on the basis that the only issue in relation to the claim for unauthorised deduction from wages and breach of contract was whether there was an agreement that the claimant be paid a salary. Having decided that there was such an agreement, she not unnaturally upheld the contract claim as being outstanding on termination. She never dealt with any argument that nothing was outstanding because the company could not afford to pay the claimant's salary and still less with any argument that, even if the company could not afford to pay it, it was necessary to imply a term that, nevertheless, the company was obliged to pay once the employment had come to an end. These issues were never said to be issues which the judge needed to decide.
"There are exceptional cases where it may be legitimate for a tribunal not to be bound by the precise terms of an agreed list of issues: but this is not one of them."
Peter Jackson LJ agreed with both judgments.
Stepping into the arena?
"it must be for the judgment of the particular Industrial Tribunal in the particular circumstances of the case before it whether of its own motion it should investigate any pleaded complaint which it is for the litigant to prove but which he is not setting out to prove."
"It is not their role to engage in the sort of inquisitorial function that Mr Hopkin [counsel for the claimant] suggests or, therefore, to engage in an investigation as to whether further evidence might be available to one of the parties which, if adduced, might enable him to make a better case. Their function is to hear the case the parties choose to put before them, make findings as to the facts and to decide the case in accordance with the law. The suggestion that, in the present case, the employment judge committed some error of law in failing to engage in the sort of inquiry that Mr Hopkin suggested is, in my judgment, inconsistent with the limits of the role of such judges as explained by this court in Mensah v. East Hertfordshire NHS Trust [1998] EWCA Civ 954; [1998] IRLR 531 (see paragraphs [14] to [22] and the cases there cited by Peter Gibson LJ). Of course an employment judge, like any other judge, must satisfy himself as to the law that he must apply to the instant case; and if he assesses that he has received insufficient help on it from those in front of him, he may well be required to do his own homework. But it is not his function to step into the factual and evidential arena."
"I have also considered whether it might be said that it would not be appropriate for the Tribunal, as it were, to invite a claimant to add a wholly new complaint. Indeed, it would not. However, what was necessary here, starting with the Case Management hearing, was simply to clarify the substance of what the Claimant was saying and the claims that she was seeking to bring. A margin of appreciation should indeed be allowed to the Judge below, as to how such matters are managed; but when, as in this case in my judgement, it shouts out from the contents of the Particulars of Claim that it is being alleged that there have been a number of acts of disability discrimination that have, along with other acts, contributed to an undermining or trust and confidence that has driven an employee to resign, and the employee is effectively a litigant in person and has no professional representation, this is a matter that should, at the very least, be raised at the Case Management Preliminary Hearing so that clarification can be sought."
Conclusion
i) Was the Claimant dismissed, if so, what was the reason for the dismissal, and did the Respondent act reasonably in treating it as a reason for dismissal?
ii) If the Claimant was not dismissed but resigned, why did she resign? Was the resignation in response to any behaviour by the Respondent amounting to constructive dismissal?
Disposal
Lord Justice Singh:
Lady Justice Asplin:
UPON hearing Counsel for the Appellant and Counsel for the Respondent on 19th February 2019
IT IS ORDERED THAT:
1. The appeal be allowed.
2. The Appellant's constructive dismissal claim is remitted for rehearing by an employment tribunal in accordance with paragraph 48 of the judgment of this court.
3. The Respondent do pay the Appellant's costs in this court to be assessed on the standard basis if not agreed.