Appeal No. EAT/604/90
	EAT/605/90

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 16th July 1991
	Judgment delivered 3rd September 1991

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MRS R CHAPMAN

	MR G H WRIGHT MBE

CROWSON & SON LTD	APPELLANT

MR S SHANNON	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	
MISS G CARRODUS
(Of Counsel)
Messrs Alsop Wilkinson
Solicitors
6 Dowgate Hill
LONDON
EC4R 2SS

For the Respondents	
MR N GRUNDY
(Of Counsel)
Messrs Porter Hope & Knife
Solicitors
St Andrews House
Queen Street
Westhoughton
BOLTON
BL5 3BH

	MR JUSTICE WOOD (PRESIDENT)   The appellant Company Crowson & Sons Ltd (Crowson) are wholesale importers and distributors of cheese with a Registered Office in London.  The Applicant, Mr Shannon, was employed by the Company from November 1985 as a van salesman at the Kearsley depot in Greater Manchester.  His employment ended on 6th March 1990.  By an Originating Application dated 17th March 1990 he alleged unfair dismissal, that dismissal was said to be a constructive dismissal.  His case was heard by an Industrial Tribunal sitting at Manchester under the Chairmanship of Mr E T Connolly on 23rd August 1990, which Tribunal after hearing evidence decided in his favour as follows:-
"(i)The applicant was constructively, and thereby unfairly, dismissed by the respondents.

(ii)The respondents are ordered to reinstate the applicant in his former employment with them at their Kearsley Depot in the Greater Manchester area as Relief Salesman upon the same terms and conditions as he was employed by them immediately prior to the termination of his employment.

(iii)The said Order of Reinstatement shall be complied with by 24 September 1990.

 (iv)It is further ordered that upon his reinstatement on 24 September 1990 the respondents shall pay the applicant the sum of £3,864.00 being the net amount of pay due to him for the period between the date of termination of his employment and 24 September 1990.

 (v)It is further ordered that upon his reinstatement the respondents shall restore to the applicant the pension rights to which he was entitled immediately prior to the termination of his employment and any other rights and privileges which he had at that time."

	At the hearing Mr Shannon appeared in person and Crowson was represented by its Managing Director, Mr Sygmut Kopel, who was not without experience of Industrial Tribunals having appeared previously in five or six other cases, in some, if not all, of which he had been successful.  

	The Industrial Tribunal announced its findings - as set out above - orally on 23rd August and subsequently gave its Reasons in Summary Form - a page and a half - which was marked as having been promulgated and sent to the parties on 17th September.  On 9th October a Faxed communication from solicitors instructed by Crowson was received by the Regional Office of Industrial Tribunals asking for Full Reasons.  That request was one day out of time.  In a written judgment of some three and a half pages the learned Chairman in the exercise of his discretion pointed out that the substance of the Decision had been known since 23rd August and that the time limit was clearly set out in Notes (IT9) which were sent out with the Decision.  In a subsequent letter of 13th November solicitors for Crowson said that upon their instructions those Notes (IT9) had not been included with the Summary Reasons.  Finally, by letter of 15th November the learned Chairman refused to alter his decision rejecting the absence of the Notes as a good reason for extending time.

	Crowson now appeals; first, against the Interlocutory Order refusing to give full reasons and secondly, against the Summary Reasons.

	The first appeal depends upon the proper exercise of his discretion by the learned Chairman.  The lay members sitting with me are surprised at his refusal especially in the light of the fact that he seemed to accept that the Notes (IT9) may not have been sent with the Summary Reasons, but this was a matter within his wide discretion and we do not feel that we should interfere.  Mr Kopel is no novice in Industrial Tribunal procedure; although successful in the past he must have seen the IT9 Notes on previous occasions and although he was the successful party, he must have been aware of the time limits.  Secondly, as emphasised by the learned Chairman, the result was known from 23rd August and Crowson only consulted solicitors very late in the day - the complete file only reached those solicitors on 8th October.  These were matters which he was entitled to take into account.

	Fortunately in this case the Summary Reasons are of sufficient length for us to understand the logic of the Industrial Tribunal, otherwise the case would have had to be remitted for a rehearing.  The core of the reasoning is contained in paragraphs 2 and 3:-
"2.   The applicant was constructively dismissed by the respondents, in that, the respondents were guilty of conduct amounting to a significant breach going to the root of the applicant's contract of employment because, under the terms of his contract of employment he was employed by the respondents as Relief Salesman to relieve the Salesmen who were based and worked from the respondents' Kearsley depot and who lived in the Greater Manchester area.  The respondents had unilaterally attempted to change this essential term of his contract so as to require him to also be Relief Salesman for the respondents' Salesman who was employed to work in the Nottinghamshire area in addition to his other duties.  Furthermore they were also guilty of conduct amounting to a significant breach of the essential term of the contract of employment that neither the employer nor the employee will conduct themselves in such a manner as to destroy the mutual trust and confidence which needs to exist between them as they were fully aware that the applicant's personal circumstances were such that it was virtually impossible for him to undertake these additional duties and yet they had imposed them upon him without offering him any assistance to overcome these difficulties.  The applicant had resigned from his employment for the above-mentioned reasons.

 3.   There being no alternative defence that if we found that the applicant had been constructively dismissed the dismissal was for a reason falling within Section 57 of the Employment Protection (Consolidation) Act 1978 and was fair within Section 57(3) we found that the dismissal was unfair."

	The outline facts do not appear from the Summary Reasons, but we have the careful Notes taken by the learned Chairman and summarise them.  Although not specifically so stated, it seems clear to us from a reading of the Reasons and the Notes that this Industrial Tribunal found Mr Shannon to be a satisfactory witness.

	In November 1985 Mr Shannon was employed as a Relief Van Salesman at the Kearsley depot.  There were four vans, one of which was "out-based" in Nottinghamshire, in that the person driving it did so in that area.  The relief driving of that "out-based" van was carried out by a Mr Booth and it meant being away four nights of the week.  Mr Shannon had never agreed to do that work.  He took the view that over a period of time attempts had been made to shift the responsibility for relief driving of that van on to him.  He had refused.  During his period of employment, Mr Shannon had carried out relief work which on five occasions had meant him being away from home for one night.

	In September 1989 Mr Booth went sick and did not return until February 1990, when he sought "light duties".  In November 1989 Mr Shannon's mother went to live with Mr Shannon and his wife, who worked part-time.  The old lady was not well and could not be left alone.

	On 5th March Mr Walker, the Nottinghamshire van salesman, stated that he was taking a week's holiday from 12th March.  Mr Shannon was instructed to accompany Mr Booth and to cover that area, starting on Monday 12th March.  This meant being away four nights.  He refused and explained about his domestic situation, which was already known to management.  
	In an able and attractive argument Miss Carradus puts the case for the Company in a number of ways:-
1.   In finding as it did in the first sentence of paragraph 3 of its Decision, the Industrial Tribunal erred in that there was no or no sufficient evidence to support that finding and it was in any event a mistaken construction of the facts.

2.   There was no evidence upon which the Industrial Tribunal could find a breach of the duty of trust and confidence.

3.   That if her submission in 1. above was wrong, this was simply a case of disagreement about the proper interpretation of the contract of employment and nothing had occurred which could amount to a repudiation of that contract.

4.   That the requirement for Mr Shannon to go to Nottinghamshire was only a temporary matter - a temporary period of stress.

5.   Even if she fails on the issue of unfair dismissal it was unfair to order reinstatement because that issue had never been claimed in the Originating Application.  Therefore Crowson had been taken by surprise and had not been asked to give evidence on that issue of remedy.

6.   Finally, Miss Carradus argues her allegation in the Notice of Appeal of bias which is made against the learned Chairman.

	We remind ourselves - and particularly in this case where we are considering Summary Reasons only - that we must read these reasons in the round and not analyse as one would a pleading.  Miss Carradus in support of her first submission argues that the addition in the first part of paragraph 2 of the phrase "... who lived in the Greater Manchester area"    undermines the whole logic of the contractual term which has been found by the Industrial Tribunal to exist.  This phrase however is unnecessary to a true understanding of the term of employment found by the Industrial Tribunal, namely that it was an express term of his contract that Mr Shannon was a Relief Salesman to relieve the salesmen who were based and worked from the Kearsley depot.  There was in our judgment ample evidence from Mr Shannon himself to support that finding of the Industrial Tribunal.

	Although the evidence was not quite so clear, we are also of the view that there was evidence which could support the finding of breach of the duty of trust and confidence, although care must be taken that this does not resort simply to the application of a test of reasonableness which was rejected by the Court of Appeal in WESTERN EXCAVATING (ECC) LTD v. SHARP [1978] IRC 221.

	Miss Carradus' third point could raise an issue of considerable complexity where previous authority abounds and no doubt this will have to be addressed at some stage, but this was not raised before the Industrial Tribunal and we do not consider that we should allow it to be raised on this appeal.  We would only comment that in this case it was not a question of differing views on the interpretation of a written instrument.

	The question of a temporary period of stress was clearly in the mind of the learned Chairman as indicated by his Notes on the questions which he asked of Mr Shannon, and there was no evidence to suggest that this was a "one week emergency".  The tenor of Mr Shannon's case was that management have been trying for some time to foist this different arrangement upon him and that he was resisting it.

	We next turn to the issue of bias.

	The day of the hearing, 23rd August 1990, it was clearly a warm one, possibly even a hot one.  It is clear from the Notes of Evidence that at the start of the hearing the Applicant, who was to begin, produced a statement outlining his argument.  Five copies of this statement had been sent to the Industrial Tribunal during June, but due to an error a copy had not been sent to the Respondents.  This, had, strictly speaking, been a breach of the Rules of the Industrial Tribunal.  An adjournment was therefore granted to allow Mr Kopel and his witnesses to consider the document.

	When he came to cross examine the Applicant, Mr Kopel produced three copies of a letter which he wished to put to the witness.  The learned Chairman asked why there were no copies for the members of the Tribunal and Mr Kopel stated that in the past he had never had any trouble obtaining copies from an Industrial Tribunal where necessary.  He was told that he would be charged 15p per page and advised to make any other necessary copies of documents.

	After an adjournment of some 15 minutes the hearing resumed and there was an issue between the Chairman and Mr Kopel about the correct use of the expression `tripartite' in connection with copying documents.  A comment was made that the Respondents' case was not very well prepared.

	When cross-examination continued the learned Chairman disallowed some questions put or commented adversely and there was a clash of words between him and Mr Kopel.  It is not clear quite what that question was but Mr Kopel was accused of "trying to run the Tribunal".

	As the result of the suggestion that there had been insufficient copies of documents, that the case was not well prepared and that Mr Kopel was trying to run the Tribunal, he said that he was completely "put off his stride".  

	In submissions before us, it was not suggested that what was said constituted bias of itself but it was the tone of the utterances.  There was said to be favouritism towards the Applicant.

	In support of these general allegations the refusal of full Reasons is cited and the comment made that the Reasons as stated by the learned Chairman seem extremely lightweight and therefore there must be some ulterior motive for such refusal.

	This last submission we totally reject.

	We accept that the proper approach to this issue as submitted by both counsel before us, is that justice must not only be done but it must be manifestly seen to be done.  Not only must there be no bias on the part of the Tribunal but the Tribunal must give no appearance of bias.  The test is an objective one: would the reasonable observer present at the hearing, not being a party or associated with a party to the proceedings but knowing the issues, reasonably gain the impression of bias.

	It is the practice of this Court where allegations of bias are made to require an affidavit and to seek comments from the Chairman of the Tribunal and the lay members.  This procedure was carried out in the present case.

	Having read all the documentation we feel entitled to take the view that Mr Kopel was not only a capable person but someone with experience in appearing at Industrial Tribunals, in many of which he had been successful.  He struck one Tribunal member as "a person with a fair amount of poise and experience, who could probably acquit well in many situations."  The impression we gain from all these documents including the letters from the lay members is that this was a case of a clash of personalities and that the learned Chairman was justified in asserting his authority.  Thus, despite the able submissions of Miss Carradus we are quite unable to find that this hearing was vitiated by bias on the part of the learned Chairman.

	Thus this appeal fails in seeking to disturb the finding of an unfair dismissal.

	We turn to the matter of remedy.  The issue of reinstatement was not raised until after liability had been announced and complaint is made to us that the Respondent was taken by surprise and that the evidence heard on this issue was minimal.  This submission seems to us to be well founded when one looks at the careful notes of evidence which have been produced.  It is important to remember that the Industrial Tribunal before ordering reinstatement must consider certain matters set out in S.69(5) of the Employment Protection (Consolidation) Act 1978.  We feel that justice requires that this issue should be re-examined by the same Tribunal at which hearing the Company can raise any argument which it wishes.  
	It follows therefore that this appeal succeeds in part that paragraphs (ii) to (v) must be set aside and we direct the issue of remedy be heard before the same Tribunal, which is already aware of the background facts.