Marion Mervyn v BW Controls Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLord Justice Bean,Lord Justice Singh,Lady Justice Asplin
Judgment Date16 Mar 2020
Neutral Citation[2020] EWCA Civ 393
Docket NumberCase No: A2/2019/1870

[2020] EWCA Civ 393

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

MRS JUSTICE ELISABETH LAING

UKEAT/0140/18/BA

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Bean

Lord Justice Singh

and

Lady Justice Asplin

Case No: A2/2019/1870

Between:
Marion Mervyn
Appellant
and
BW Controls Ltd
Respondent

Paul Strelitz (instructed on a Direct Access basis) for the Appellant

Richard Shepherd (instructed by Bennetts Solicitors, Bristol) for the Respondent

Hearing date: 19 February 2020

Approved Judgment

Lord Justice Bean
1

The Claimant appeals from a judgment of Elisabeth Laing J, sitting in the Employment Appeal Tribunal, of 28 March 2019, upholding the decision of an employment tribunal at Bristol (Employment Judge Livesey and two lay members) dated 24 November 2017, by which the ET had dismissed her claims for unfair dismissal. (The ET also rejected a claim for sex discrimination which has not been the subject of any appeal.)

2

Elisabeth Laing J granted permission to appeal to this court on 28 March 2019 on the basis that the outcome was “unjust”. While the judge felt bound to dismiss the Claimant's appeal, she recognised that the case raised issues about: (a) the extent to which an ET should assist a litigant in person in formulating issues; and (b) the circumstances in which an ET can depart from an agreed list of issues when one party is a litigant in person and the list of issues appears to be deficient when compared to the original pleaded case.

3

The Claimant began work for the Respondent on 8 November 2005 as an Administrator. She initially worked part-time but subsequently took a full-time position. Lee Fowler is the Managing Director and owner of BW Controls and his wife, Julie Fowler, is the Company Secretary and a director. Two other individuals, Mr Smith (the Production Manager) and Simon Hawkes (the Design Engineer), also worked in the office. The Claimant left her employment with the Respondent in mid-November 2016 and submitted an ET1 claim form on 4 December 2016.

The ET1 claim form

4

In section 8 of her claim form, the Claimant ticked the box next to the words “I was unfairly dismissed (including constructive dismissal)”. Her attached particulars of claim contained allegations which to any employment lawyer would seem to indicate a case of constructive dismissal.

“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

5

The Respondent's ET3 Response Form contained passages which indicated that in the company's view the Claimant had resigned.

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

6

The Claimant sent a letter to the ET on 30 January 2017 which responded to the Respondent's ET3 form. In that letter, she stated that the claim was for “unfair dismissal (including constructive dismissal)” but maintained that “there was no resignation on 14 November 2016”. She set out further facts that could support a constructive dismissal claim; she said, for example, that she “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”.

7

In the agenda form completed for the telephone case management hearing the Claimant again stated that her claim was for “unfair dismissal (including constructive dismissal)” and answered that there was no change in her claim since she issued her ET1 Claim Form. The Respondent recognised in its response that one of the issues was whether the Claimant was dismissed or resigned and, if she resigned, whether she could claim constructive dismissal.

8

On 8 February 2017 Employment Judge Reed held a case management hearing by telephone. According to the Respondent, the Claimant said at the hearing that she did not resign and did not intend to resign. According to the Claimant, the hearing lasted just under an hour, “went too fast” and was confusing. The judge produced a case management order which included the following:

“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.”

9

On 6 March 2017 the Claimant wrote a response to the ET's case summary which again includes facts which could support a standard unfair dismissal case and a constructive dismissal case. She maintained that she was “dismissed” and that she went home on 14 November 2016 because she was ill. But she also stated that “the behaviour of Lee Fowler was detailed to explain why I went home ill”.

10

The substantive ET hearing took place in Bristol from 13–15 November. The Claimant appeared in person: she and her partner gave...

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