Barke v SEETEC Business Technology Centre Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE DYSON
Judgment Date16 May 2005
Neutral Citation[2005] EWCA Civ 578
Docket NumberCase No: A2/2005/0064
Date16 May 2005

[2005] EWCA Civ 578

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Mr Justice Burton

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

Lord Justice Brooke Vice- President of the Court of Appeal (Civil Divison)

Lord Justice Buxton and

Lord Justice Dyson

Case No: A2/2005/0064

Between
Mrs E Barke
Appellant
and
Seetec Business Technology Centre Ltd
Respondent

Mr Oliver Hyams (instructed by Messrs Brian Barr) for the Appellant

Mr Bruce Gardiner (instructed by Messrs Wollastons) for the Respondent

Mr Nicholas Underhill QC (instructed by the Treasury Solicitor) for the Department of Trade and Industry as intervener.

LORD JUSTICE DYSON

This is the Judgment of the Court.

Introduction

1

This appeal concerns the lawfulness of a practice adopted by the Employment Appeal Tribunal since 2002 which has been most fully explained by the President (Burton J) in Burns v Royal Mail Group [2004] ICR 1103 ("the Burns procedure") (this decision is also reported as Burns v Consignia (No.2) [2004] IRLR 425). This procedure has since been incorporated in the Employment Appeal Tribunal Practice Direction 2004. It involves the employment appeal tribunal, in a case where an employment tribunal is alleged to have failed in its judgment to deal with an issue at all, or to have given no reasons or no adequate reasons for a decision, inviting the employment tribunal to clarify, supplement or give its written reasons before proceeding to a final determination of the appeal. It is to be distinguished from the practice of remitting a case for re-consideration by an employment tribunal after the final determination of an appeal.

2

Before we come to the question of the lawfulness of the Burns procedure and (if it is lawful) any guidance that can be given as to the parameters of its application, we shall summarise the relevant facts.

3

Mrs Barke was born on 27 July 1961. She was employed by Seetec Business Technology Centre Limited ("Seetec") as a programme manager from 4 January 1999 until 19 September 2003 when she resigned. On 18 August 2003, she presented an originating application claiming disability discrimination. On 14 November 2003, she presented a second originating application claiming unfair dismissal. The two applications were heard together by the employment tribunal. The hearing took place over three days in September 2004. On 25 October, the employment tribunal sent its judgment to the parties with written reasons (which run to 81 paragraphs), and it was duly entered on the register.

4

Both claims were dismissed. At para 6 of the judgment, the employment tribunal identified the "key issues" as being:

"6.1 What was the nature of the impairment (the Respondents conceding that Mrs Barke was a disabled person);

6.2 Did the Respondents discriminate against Mrs Barke by subjecting her to a detriment and/or by failing to comply with their duty to make reasonable adjustments in the following respects:

6.2.1 by not providing her with reasonable parking arrangements;

6.2.2 by not complying with the recommendations of a report by Medic International in a reasonable time;

6.2.3 by not allowing her to work from home when her symptoms were particularly bad;

6.2.4 by not allowing her to have a reduced lunch break.

6.3 Was Mrs Barke constructively dismissed (if so the Respondents do not contend it was fair);

6.4 Did the Respondents discriminate against Mrs Barke by dismissing her (i.e. did Mrs Barke justifiably resign because of disability discrimination)."

5

It is unnecessary to set out the detailed findings of the employment tribunal. Mrs Barke appealed to the employment appeal tribunal. Her notice of appeal contains 15 grounds of appeal. The grounds which are relevant to this appeal are grounds 1–6 and 10 and 11, which are in the following terms:

"Ground 1

The employment tribunal failed to refer in connection with the Appellant's claim that she had been dismissed within the meaning of section 95(1)(c) of the Employment Rights Act 1996 (" ERA 1996") to the requirement imposed by the Respondent on the Applicant to work in the very hot rooms in which she (and her colleagues) in fact worked during the summer. (The Appellant claimed that this requirement was a breach of her contract of employment, whether of the implied obligation to provide a reasonably safe place to work or of the implied term of trust and confidence, or both.) The employment tribunal accordingly failed to have regard to a relevant factor, or alternatively to a material fact.

Ground 2

Alternatively, in failing to refer to this matter in its written reasons concerning the Appellant's claim of unfair dismissal, the employment tribunal failed to give sufficient reasons for its determination that she had not been dismissed within the meaning of section 95(1)(c) of the ERA 1996.

Ground 3

Despite finding (in paragraph 25 of its reasons) that the respondent was wrong to tell the Appellant that her contract of employment required her to have an hour for lunch, the employment tribunal failed to refer, in connection with the Appellant's claim that she had been unfairly dismissed, to the persistent refusal by the Respondent to allow the Appellant to take only a half-hour lunch break and accordingly (in the circumstances) to work an extra half an hour per day. Accordingly, the employment tribunal failed in this respect to have regard to a relevant factor, or alternatively to a material fact.

Ground 4

Alternatively, in failing to refer to this matter in its written reasons, the employment tribunal failed to give sufficient reasons for its determination that the Appellant was not dismissed within the meaning of section 95(1)(c) of the ERA 1996.

Ground 5

The employment tribunal failed to apply the proper test when determining the Appellant's claim that she had been dismissed within the meaning of section 95(1)(c) of the ERA 1996. The employment tribunal asked itself whether each and every aspect of the Respondent's conduct on which the Appellant relied was itself a breach of contract, instead of asking itself whether the accumulation of those aspects was a breach of the implied term of trust and confidence.

Ground 6

The employment tribunal also failed to apply the proper test when asking itself (in paragraph 79 of its written reasons) whether the "last straw" was itself a breach contract rather than whether the conduct of the Respondent which led the Appellant to resign was "an act in a series whose cumulative effect is to a amount to a breach of the implied term" of trust and confidence (applying the words of Dyson LJ in Omilaju v Waltham Forest London Borough Council [2004] EWCA Civ 1493, at paragraph 19).

Ground 10

In determining in paragraph 75 of its written reasons that it was unreasonable of the Appellant to refuse the Respondent's offer to park or move the Appellant's car because the employment tribunal believed that "the insurance problems could have been sorted out", the employment tribunal made a finding which was supported by no evidence.

Ground 11

Further or alternatively, in so determining, the employment tribunal wrongly failed to have regard to the evidence of the Appellant (recorded in paragraph 51 of its written reasons) that allowing an employee of the Respondent to drive the Appellant's car for whatever reason "could result in her losing her car under the motability scheme."

6

The notice of appeal was sifted by the employment appeal tribunal pursuant to the case management powers contained in para 9.5 of the 2004 practice direction. This provides for sifting "so as to determine the most effective case management of the appeal". It also provides that the judge or registrar may stay the appeal for a period, normally 21 days

"…pending the making or the conclusion of an application by the appellant to the employment tribunal (if necessary out of time) for a review or pending the response by the employment tribunal to an invitation from the judge or registrar to clarify, supplement or give its written reasons."

7

On 21 December 2004, Burton J, President, made an order which included the following:

"1. The employment tribunal Chairman is requested, if reasonably practicable within 28 days of the date of the sealed Order, to provide the Tribunal answers to the following questions arising out of the Notice of Appeal, pursuant to Burns v Consignia (No. 2) [2004] IRLR 425:

(i) Whether the Tribunal formed an opinion as to the matters in Grounds 1 and 2 (by reference to paragraph 73 of the Written Reasons or otherwise) and Grounds 3 and 4 (by reference to paragraph 78 of the Written Reasons or otherwise) of the Notice of Appeal, and if so whether it had reasons, and, if so, what they were, for not making a finding of unfair constructive dismissal by reference to them.

(ii) Whether the Tribunal formed an opinion, and if so what (and for what reason or reasons), as to the alleged accumulation of aspects as referred to in Ground 5 of the Notice of Appeal.

(iii) Whether the Tribunal formed an opinion, and if so what (and for what reason or reasons) in relation to the matters in Ground 6 of the Notice of Appeal.

(iv) The reasons for its finding (or lack of finding) referred to in Grounds 10 and 11 of the Notice of Appeal.

The replies from the ET tribunal when received by the EAT are to be served upon the Appellant and Respondent."

8

The order gave both parties liberty to apply on notice to vary or discharge the order.

9

The issues arising on this appeal

i) Does the employment appeal tribunal have jurisdiction to make requests of the kind that Burton J made in the present case?

ii) If yes, was the order he made in this case an...

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