David v. International Marketing & Promotions Ltd [2001] UKEAT 1295_01_0412 (4 December 2001)

JUDGMENT PRELIMINARY HEARING © Copyright 2001 APPEARANCES For the Appellant MR MARC JONES (Solicitor) Instructed By: Messrs Underwoods Solicitors 83/85 Marlowes Hemel Hempstead Hertfordshire HP1 1LF HIS HONOUR JUDGE D PUGSLEY: In this case we are asked to consider whether there are identifiable grounds for the criticism of this Tribunal which sound as issues of law rather than being merely the Appellant does not like the decision that the Tribunal reached. We have carefully considered the issues that have been raised by Mr Jones in his skeleton argument. We note in particular that in paragraph 48 of the decision it is said as follows: "We are all of the opinion that Mr Perkins could have handled the matter more sensitively. He declined to confirm to the Applicant in writing that she had not been dismissed, and cited previous practice as the reason. We consider that the best practice would have been for Mr Perkins to have written to the Applicant on 21 January confirming that she had been suspended while enquiries were made, and requesting her to return on the following Tuesday. Apart from anything else, such a letter would have avoided the confusion that arose as to whether the Applicant was due back in any event, or whether she was to wait for Mr Perkins to contact her. We find that such failure does not amount to a breach of contract entitling the Applicant to resign." We think there is force in the submission that there may be an arguable ground as to whether this Tribunal failed on its own findings of fact to look at the cumulative position and ask itself whether or not the Respondents were in breach of the mutual trust and confidence. We say that because it is quite clear from the submissions that were being made on the Appellant's behalf before the Tribunal at paragraph 11, that the Tribunal was in fact being asked to consider not just one matter but a number of matters. Whilst it is true that the Tribunal made certain findings of fact, for example about her workload, which cannot be disturbed, we have the uneasy feeling that the Tribunal did not at any stage, it could be argued, look at the totality and ask itself in the light of all those matters was there a breach of mutual trust and obligation. We have looked at the grounds of appeal. In our view we do not think that the arguments about perversity can succeed; perversity is a very high mountain to climb. Looking at the grounds of appeal we consider that paragraph 3.1 is arguable. We think that paragraph 4.2 is arguable and in the arguments about 4.2 the matters set out in 4.1 are really a subtext and are subsumed with the principal allegation made in 4.2. So we allow 4.2 with 4.1 to be argued within its ambit. We allow 4.4: "The Tribunal failed to make a decision on the submission relating to a series of acts [including suspension] as outlined in paragraph 12 of the decision. Therefore the Tribunal erred in law". We would like the grounds of appeal to be amended to therefore set out 3.1, 4.2 which incorporates 4.1 and 4.4 which incorporates suspension as one of the acts set out in paragraph 4.4. We think this is a Category C case, with a time estimate of half a day. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII