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Case No: A2/2010/0890

Neutral Citation Number: [2010] EWCA Civ 1167

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL

HIS HONOUR JUDGE PETER CLARK

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Wednesday 15th September 2010

Before:

LORD JUSTICE MAURICE KAY

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Between:

Crossland  (Appellant)

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Corps of Commissionaires Management Limited  (Respondent)

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(DAR Transcript of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

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The Appellant appeared in person.

The Respondent did not appear and was not represented.

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Judgment

(As Approved by the Court)

Crown Copyright ©

Lord Justice Maurice Kay:

1. This is a renewed application for permission to appeal, permission having been refused on the papers by Mummery LJ. Mr Crossland, who appears in person, seeks permission to appeal a decision of the Employment Appeal Tribunal dismissing his appeal from a determination of an Employment Tribunal which had rejected his claim of unfair dismissal. In fact, Mr Crossland resigned from his employment. His case was, and is, that he was constructively dismissed because his employers, following receipt of a complaint about him from a client or customer, had harassed him and destroyed the trust and confidence implicit in the relationship, such as to compel him to resign.

1. There was a central issue in the case in the Employment Tribunal: it was whether meetings, which Mr Crossland was invited to attend by his employers, were properly categorised as meetings in the course of disciplinary proceedings or as meetings precedent to disciplinary proceedings which may or may not have followed.

1. Mr Crossland's case is that, at all material times, the employer was reacting against his having raised a grievance, and the form of the reaction was to plunge him straight into disciplinary proceedings which did not fully comply with all the requirements of the law and elementary fairness, such that he was justified in failing to attend those meetings. Having failed to attend, and as matters intensified, he says that the employer repudiated the contract by being in breach of the implied terms for trust and confidence, and he properly accepted that repudiation and resigned in circumstances amounting to constructive dismissal.

1. It seems to me that the early letters from Mr Johnson, the contracts manager, to Mr Crossland, which were proforma letters, contained wording that might have been appropriate either to an invitation to a preliminary investigatory meeting or to the first stage of a disciplinary hearing. Be that as it may, as time went by it became clear -- or at least the Employment Tribunal was entitled so to find -- that the employer had not instituted disciplinary proceedings but was arranging a meeting within the scope of paragraph 8 of the ACAS Code of Practice. There was a telephone call on 16 December in which Mrs Griffiths told him that the previous letters had been proforma letters that were always sent out after a client had requested that an employee be removed from the site. She told him in terms that it was not a disciplinary letter, but he insisted that he was being made the subject of disciplinary proceedings. He was later to acknowledge that Mrs Griffiths had informed him that he was not facing disciplinary action.

1. Also on 16 December there was a further individualised letter from Mr Johnson to Mr Crossland in which he referred to the previous correspondence and Mr Crossland's unwillingness to attend meetings. This letter stated:

"At no time did my correspondence mention that disciplinary action was being taken against you ... My letter makes reference to the Employment Act 2002 in the sense of writing to you to resolve the dispute. However, this does not constitute any formal action being taken under the disciplinary procedure at that or this time."

1. The letter went on to repeat an invitation to the meeting on 23 December; it said that the meeting would be chaired by Mr Johnson with a colleague present to take notes. It continued:

"You may bring with you a qualified trade union official or a work colleague, and in order for you to prepare for the meeting I enclose two emails from the client requesting your removal from site ... Please note that, depending on the outcome of the meeting, disciplinary action may be taken against you. However, a decision regarding this will not be made until you have had the opportunity to put forward your side of events or any mitigating circumstances."

1. It seems to me that, in the light of the evidence of Mrs Griffiths and the terms of that letter (although the letter may be said to contain some words that might have been equally applicable in a disciplinary context), read as a whole, the clear impression is that it was being stressed that the matter at that stage was not being treated as a disciplinary matter, but that that was only something that might or might not occur later, depending on the outcome of the meeting. In my judgment, the Employment Tribunal was entirely justified in coming to its conclusion on that point. It had to come to a conclusion based on the totality of the material before it. I accept, of course, that there might have been pointers one way and the other, but it is for a Tribunal to come to a decision not just on the basis of cherry-picking but on the basis of a mature and experienced assessment of the evidence as a whole. I can find no legal error whatsoever in the approach of the Employment Tribunal or that of the Employment Appeal Tribunal.

1. I notice that in paragraph 5 of the judgment of HHJ Peter Clark, himself a very experienced EAT judge, that he makes clear that he was drawing on his lay colleague's considerable industrial experience when deciding whether the Employment Tribunal had fallen into any legal error when concluding that Mr Crossland was being asked to attend an investigatory meeting rather than a disciplinary meeting.

1. That is important. There was a full and reasoned assessment in the Employment Tribunal by the employment judge sitting with lay members, and that was reconsidered by the EAT constituted as I have indicated; again, the lay members as well as the judge were people of enormous industrial experience.

1. Standing back and looking at the matter as a whole, I cannot but conclude that the determinations in both jurisdictions are free from arguable legal error, and accordingly I refuse permission to appeal because such an appeal would have no real prospect of success.

Order: Application refused