Appeal No. EAT/910/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 9 June 1994

	Before

	THE HONOURABLE MR JUSTICE MORISON

	MR P DAWSON OBE

	MR K M YOUNG CBE

MR J F KENNEDY	APPELLANT

SOUTH EAST KENT HEALTH AUTHORITY	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	IN PERSON

	

	MR JUSTICE MORISON:  This is a prospective appeal against two decisions of an Industrial Tribunal the first of which dealt with the Appellant's complaint of unfair dismissal.  That decision was entered in the register on 24 September 1993 and the second decision was a rejection of his application that the original Tribunal should conduct a review of their decision, and that decision is entered in the register on 29 September 1993.  As is plain from our statute we are only entitled to deal with appeals which raise questions of law and the purpose of this hearing has been to identify with Mr Kennedy's assistance, any possible argument on a question of law.  The background facts do not need to be recited at any length.

	Essentially what has happened is that Mr Kennedy had been employed with this particular hospital authority from 6 February 1989 although he had worked in the hospital service before that date.  He encountered problems with those who were his managers, in particular a Mr Wild who originally was his immediate line manager and thereafter became his line manager but one.

	As a result of a number of difficulties between them and allegations being made, the Appellant was eventually dismissed on 25 August 1992 but he appealed, as was his right, against that dismissal and his appeal was successful and on the 13 October he should have been reinstated in his position.  However the hospital authority elected to make yet further allegations against him around about that time so that having been reinstated he was then suspended from his employment and, to make matters worse, based on an allegation that he had stolen a laser printer from the hospital premises, he had the indignity of being arrested by the police who quite rightly were not prepared to prosecute in relation to that matter after they had had an opportunity to investigate the facts.

	Subsequent to the suspension a number of attempts were made between the parties to discuss where they went from there.  The Appellant wished to have a proper opportunity to discuss further grievances which he wished to make under the grievance procedure against the particular manager who had caused him grief before.  The Appellant took the view that because this particular manager had already, so to speak, come up against him before, he was not the appropriate person to be carrying out an investigation of his latest series of complaints and accordingly when there was no movement on that front, he put in his notice of resignation.  He said that he had reached a position up with which he could not reasonably be expected to put and that there had been breaches of express or implied terms in his contract of employment entitling him therefor to resign.  Accordingly this was a claim of constructive dismissal.

	After a 2 day hearing the Industrial Tribunal correctly directed themselves as to what was required in paragraph 8 of their decision and then concluded in paragraphs 9, 10, 11 and 12 that there had been no breach of the contract of employment, the law being that unless there is a breach of contract by the employer the employee who resigns will not be treated as having been dismissed.

	The application for a review was based partly on the research which the Appellant had carried out at the university's law library. He had discovered a case Fyfe & McGrouther Ltd v S Byrne [1977] IRLR 29 and he also took the view that the Industrial Tribunal had erred in their recitation of the facts and in effect had not properly addressed themselves to the evidence which he had presented to them.  His application for a review was rejected by the Industrial Tribunal who sought to distinguish the case of Fyfe on its facts.  In that case there had been what appeared to be a malicious reporting to the police of the conduct of one of the employees.

	It seems to us that there is no point of law raised in the Notice of Appeal which has been drafted by Mr Kennedy himself.  On the face of it, it does disclose legal arguments.  It is said that the decision of the Industrial Tribunal was perverse.  We have to say that we can see no evidence from the decision of the Tribunal itself or from having looked at the grounds put forward by the Appellant, that there is any reasonable argument for suggesting that the Tribunal has been perverse in the conclusions it arrived at, although we have no doubt at all that its decision came not only as a disappointment to Mr Kennedy but also led him to believe that no proper consideration had been given by the Tribunal to his case.

	He also suggests that there has been errors of law in various respects and relies on Fyfe.  We have to respectfully point out that the case of Fyfe was decided before Western Excavating EEC Ltd v Sharp and probably would not have been decided in the same way today but in any event it seems to us that looking at the facts of the Fyfe case there is no principle to be detected.  It is merely an example of the sort of case where, in those days, a Tribunal was prepared to find constructive dismissal.

	Having reviewed the papers with great care we are all satisfied that there is no error of law.  That said I would like to add one further point.  Mr Kennedy says that there has been a high degree of unreasonable bias shown by the Tribunal in favour of the Respondents' case contrary to the evidence which was given.  In other words he feels very strongly as it emerges from the discussions which we have had with him today, that he has been less than fairly dealt with; not just by his employers but by the way in which the Tribunal carried out their judicial function.

	Speaking for myself I think it is always regrettable when a litigant finishes with a case and is left with the feeling that Mr Kennedy now has.  If I had felt that there was any ground to support the case of bias then of course all of us would have immediately acceded to the application for leave to continue this appeal because it is simply not right that any Tribunal should act in a biased way.  It is however a serious allegation to make against an Industrial Tribunal who have a difficult job to carry out and we think that it is important to bear in mind that the fact that a party is dissatisfied with the decision, is not itself a ground for alleging that the Tribunal have been biased.  We have examined that with some considerable care and we are not of the view that there is any arguable case of bias in fact, although we have no doubt at all that Mr Kennedy does feel in his own mind very strongly that he has been less than fairly dealt with.

	Accordingly, because of our limited jurisdiction in this matter; despite if I might say so an extremely pleasant submission from Mr Kennedy, we are unable to accede to his application and this appeal must be dismissed.