IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

No A2/2010/2941

BETWEEN:

DR A FAULKNER

Appellant

-and-

THE UNIVERSITY OF MANCHESTER

Respondent

APPELLANT’S SKELETON ARGUMENT FOR PERMISSION TO APPEAL APPLICATION

Dr Faulkner: C

The University of Manchester: R

The Employment Tribunal: ET

The Employment Appeal Tribunal: EAT

The Employment Rights Act: 1996 ERA

Public Interest Disclosure Act: PID

Employment Judge: EJ

A. INTRODUCTION

1 This is an appeal from the judgment of the EAT (Slade J presiding with members) who allowed

R’s appeal from the judgment of an ET (EJ Porter and members) sent to the parties on 27

November 2009 (“the liability decision”). The EAT decided the matter should be remitted to a

freshly constituted ET.

2 C submits the EAT erred in law. This Court is of course concerned primarily with the

correctness of the decision of the ET.

3 C submits the following:

3.1 The ET’s decision in no way suffered from a deficiency of reasoning let alone any

deficiency that might amount to an error of law. The decision complied with ET rule 30(6)

and was wholly Meek compliant. The EAT erred in law in allowing R’s appeal on that basis;

3.2 The criticisms made by the EAT of the decision are flawed in fact and substance. Even if

those criticisms had any substance in any event, they do not render the decision non

compliant with either rule 30(6) or Meek;

3.3 The EAT also erred in law in allowing the appeal by R on a ground which was not pursued

in the notice of appeal. R appealed solely on perversity grounds. The appeal was allowed

solely on the ground of deficient reasoning by the ET;

3.4 The ET’s remission similarly erred in law. Alleged poverty of reasoning is not a good

ground simply to set aside the decision and remit matters to a freshly constituted tribunal

for the matter to be re-heard all over again. The EAT erred in not remitting the matter

back to the same ET for amplification of its allegedly deficiently reasoned decision.

4 C’s case before the ET was that he was constructively dismissed by the acts of R and further

that he had made a protected disclosure to R, for which he received unjustified and adverse

treatment from R. The ET found for C on both claims. There was a subsequent remedy hearing

on 20 January 2010 at which C was awarded in total £51,036.77 (“the remedy decision”).

5 R appealed both decisions. Only the liability decision was adjudicated on by the EAT.

6 R withdrew its perversity appeal before the EAT and the appeal, on those grounds, was

dismissed by the EAT on withdrawal by R.

7 The Court is referred to the following in the appeal bundle:

7.1 The liability decision of the ET [1-16];

7.2 The skeleton argument of R before the ET dated 4 October 2009 [104-110], the closing

submissions of R dated 21 October [116-163] and the skeleton argument of C dated 12

October 2009 [111-115];

7.3 The notice of appeal by R to the EAT dated 14 December 2009 [33-49];

7.4 R’s skeleton argument before the EAT dated 23 September 2010 and C’s skeleton

argument in response. These matters will be available for the full hearing (if permission is

granted).

B. RELEVANT LEGAL PRINCIPLES/MATERIALS

Relevant Case Law

8 As R’s grounds of appeal to the EAT make no criticism of the ET’s recitation of the relevant

legal principles engaged before them at paragraphs 6-13 of its decision, C does not rehearse

the principles therein.

9 Both parties agreed it was necessary for the ET to decide the relevant facts in order to

ascertain (a) whether there had been repudiatory conduct by R that caused C to be dismissed,

and (b) whether C had been subjected to detriments on the grounds that he had made a

protected disclosure.

The Duty to Give Reasons

10 Prior to rule 30(6) of the ET Rules being enacted, the common law recognised the

importance of ET decisions being reasoned and intelligible.

11 In Meek v City of Birmingham District Council1 the Court of Appeal gave the following oft

quoted guidance:

It has on a number of occasions been made plain that the decision of an industrial tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has give rise to the complaint and a summary of the tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an industrial tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted.

12 The Court of Appeal in English v Emery Reimbold & Strick Ltd2 (a non ET related cases

which did not cite Meek but which states principles that are the same as in Meek3) stated

what the minimum acceptable threshold for reasons in a judicial decision (including by

reference to Article 6 of the ECHR) are:

If the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge's conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon. ...

When giving reasons a judge will often need to refer to a piece of evidence or to a submission which he has accepted or rejected. Provided that the reference is clear, it may be unnecessary to detail, or even summarise, the evidence or submission in question. The essential requirement is that the terms of the

1 [1987] IRLR 250, CA per Lord Bingham at para 8

2 [2003] IRLR 710, CA

3 See para 16 of the judgment “we would put the matter at its simplest by saying that justice will not be done if it is not apparent to the parties why one party has won and that other has lost”

judgment should enable the parties and any appellate tribunal readily to analyse the reasoning that was essential to the judge's decision.

13 The Court of Appeal applied the English v Emery Reimbold & Strick Ltd principles to an ET

judgment in Armstrong v Newcastle upon Tyne NHS Hospital Trust4:

Part of the challenge to the decision of the tribunal on this point of the case has been directed to the sufficiency of the tribunal's reasons. The approach which this Court should adopt to a 'reasons' challenge of this nature was considered by this Court in English v Emery Reimbold & Strick Ltd [2003] IRLR 710. As appears from the head note, that case established a number of propositions. The following apply to this case:

(a) a judicial decision which affects the substantive rights of the parties should be reasoned;

(b) a tribunal is not bound to deal with every argument or identify every factor which weighed with it,

but it must deal with the issues which are essential to its conclusion;

(c) the decision should enable the parties readily to analyse the tribunal's essential reasoning;

(d) the decision should be read against the background of the evidence and submissions at the hearing

before the tribunal.

It follows from points (b) and (d) in particular that this Court will be slow to overturn a decision of a tribunal if its essential reasoning can be deduced from what it has said in combination with the arguments and evidence, documentary or oral, placed before it. As Bingham LJ said in Meek v City of Birmingham District Council [1987] IRLR 250...

It is particularly the case that this Court should look at the arguments and evidence placed before a tribunal where it is dealing with the decision of an employment tribunal, as opposed to a court of record. In the case of an employment tribunal, the reasons are primarily addressed to the parties and will not establish a binding precedent.

14 Thus, as the Court of Appeal accepted in Armstrong v Newcastle upon Tyne NHS Hospital

Trust, the appellate court should have regard to materials that may not be expressly

mentioned in a judgment that could inform and cast light on a judgment, and not the opposite

as appears to have been held by the ET in this case: failure to mention those documents

expressly in the judgment undermines the propriety/integrity of the judgment.

15 By its 2004 Rules of Procedure, ET’s have been obliged by rule 30(6) to produce reasons for

its decision that contains the following:

(6) Written reasons for a judgment shall include the following information—

(a) the issues which the tribunal or Employment Judge has identified as being relevant to the claim;

4 [2006] IRLR 124, CA at para 41

(b) if some identified issues were not determined, what those issues were and why they were not determined;

(c) findings of fact relevant to the issues which have been determined;

(d) a concise statement of the applicable law;

(e) how the relevant findings of fact and applicable law have been applied in order to determine the issues;

16 Rule 30(6) is not to be followed in every case to the precise letter of the rule: Balfour

Beatty Power Networks Ltd v Wilcox:5

I do not doubt that in future employment tribunals would be well advised to recite the terms of rule 30(6) and to indicate serially how their determination fulfils its requirements, if only to avoid unmeritorious appeals. But the rule is surely intended to be a guide and not a straitjacket. Provided it can be reasonably spelled out from the determination of the employment tribunal that what rule 30(6) requires has been provided by that tribunal, then no error of law will have been committed

C. THE FACTS AND THE ET’s JUDGMENT

The Contested Issues

17 The facts between the parties were disputed. Oral evidence was called on both sides as to the

relevant facts relating to the working relationship between C and R since November 2007.

18 C’s case related to (a) constructive unfair dismissal and (b) detrimental treatment as a result

of C having raised a protected disclosure namely a grievance dated 21 January 2008 in respect

of the alleged mistreatment he had received as a result of raising his grievance:

18.1 Unfair dismissal. Essentially C complained that he was mistreated at and following a

meeting involving among others his line manager (Professor Wilkinson) on 4 December

2008. That conduct/treatment by Prof Wilkinson and others, as well as R’s mishandling of

C’s grievance that he had been bullied, eventually caused C to resign his employment by

letter of 22/7/08, effective 31 August 2008. C alleged that resignation was a dismissal by R

due to its breach of the fundamental implied term of trust and confidence. This is

rehearsed by the ET at paragraph 3.1;

18.2 PID or whistleblowing. Essentially C alleged that he made a protected disclosure to R by

way of his formal grievance dated 21 January 2009 alleging bullying (principally by Prof

Wilkinson) and C was thereafter subjected to detrimental treatment on the ground that he

had made a protected disclosure.

19 R’s case on unfair dismissal (set out in a skeleton argument followed by full written

submissions) was as follows:

5 [2007] IRLR 63, CA

19.1 Whilst R conceded the meeting of 4 December was “handled inappropriately”6 there was

no repudiatory conduct by R at that meeting or in any subsequent meetings or subsequent

events;

19.2 C did not resign because of any alleged repudiatory conduct by R;

19.3 C in any event waived any alleged repudiatory conduct.

20 R’s case on whistleblowing/PID was that C was not subject to any detrimental treatment

and/or that if he was, the cause of his treatment was not on the grounds that he had made a

protected disclosure.7

The ET’s Decision

21 An analysis of the structure and substance of the ET’s decision:

21.1 The ET identified the issues (para 3) and reminded itself of the “detailed written

submissions of R” (para 4);

21.2 The ET then rehearsed its findings of fact under 50 sub paragraphs (including sub, sub

paragraphs) (para 5);

21.3 The ET then rehearsed the relevant principles of law which it had to apply in respect of C’s

constructive dismissal case (paras 6-7) and for a PID claim (paras 10-12) and the ET

considered the legal authorities cited by the parties (para 13);

21.4 The ET then applied the legal principles to its findings of fact and found that R had

breached the implied term of trust and confidence in its treatment of C (para 14):

21.4.1 The ET found that R, through Prof Wilkinson and Prof Missous, had treated C in an

“appalling” manner in relation to the 4 December meeting which itself was

repudiatory (paras 14.1-14.2);

21.4.2 The mistreatment endured into 2008 (paras 14.3-14.5);

21.4.3 R’s handling of the grievance was “fundamentally flawed” including the failure by R

to change C’s line management by Prof Wilkinson(paras 14.6-14.10)

21.5 The ET then concluded that C was not only dismissed (constructively) by R but also that

that dismissal was unfair (paras 15-18);

21.6 The ET also applied its findings of fact to C’s PID claim and concluded that not only had C

made a PID (bullying allegation contained in his grievance) but that he also suffered

6 See summary of R’s submissions p119

7 Page 121

detrimental treatment by R on the grounds that he had made a PID and that R had not

proven otherwise to the contrary8 (paras 19-21).

D. R’s APPEAL TO THE EAT

Permission to Appeal

22 R appealed both the liability and remedy judgment. The Court is only concerned with the

liability judgment in this appeal.

23 R’s appeal sought to challenge the ET’s decision on the grounds of perversity.

24 The grounds of appeal relating to the liability judgment9 do not mention nor make reference

to a Meek or reasons based appeal; it is a document that argues solely that the decision of the

ET was perverse.

25 At the sift stage the President10 gave a short oral judgment on the grounds of appeal (see EAT

judgment para 5). R did not seek permission to amend its ground of appeal to argue a Meek or

reasons point. R did not seek the notes of evidence from the ET.11 R’s skeleton argument for

the full EAT hearing, similarly does not argue any Meek issue but rather concentrates on the

notice of appeal; Meek is not cited and only the relevant test for a perversity appeal is cited

(paras 24-26).

Decision of the EAT

26 The EAT allowed R’s appeal solely on a Meek basis. The perversity was withdrawn by R and

dismissed by the EAT in its order.12

E. GROUNDS OF APPEAL

(a) Meek Compliant

27 The EAT erred in law in allowing R’s appeal.

28 In simple terms, the factual and legal nature of C’s case required the ET to adjudicate on

whether C had been mistreated by R in the various ways he alleged. That is precisely what the

ET did in its reasons. Not only did R know why it lost the case, the ET made detailed findings

on precisely why R lost the case by way of the detailed chronological itemisation of the

evidence that supported C’s case that R had breached the implied term of trust and

8 The reverse burden of proof on non dismissal detriments for PID claims is provided by s48(2) ERA 1996

9 EAT appeal bundle p33-49

10 Page 102

11 Even though the President’s order gave liberty to apply for the same in paragraph 4 of his Order, p103

12 See para 31 of EAT judgment

confidence. Broadly speaking, the ET accepted the evidence of C as to the events and his

mistreatment and rejected the evidence and arguments of R. That manifestly was a course

open to the ET.

29 The decision of the ET was one which satisfied the essential requirement of the ET Rules

under paragraph 30(6) and the basic Meek requirements as reiterated by the Court of Appeal

in English v Emery Reimbold & Strick.

30 The judgment follows exactly the course suggested by rule 30(6).

31 The criticisms made by the EAT of the ET’s judgment for not being Meek compliant and

reasons (or lack thereof) are without foundation:

31.1 Witnesses not cited (para 22). There is no error of law in not citing who gave evidence.

There is no such compulsion on an ET to state this either under rule 30(6) or in common

law. This is not a Meek point. The parties know who they called and who the other side

called. The evidence given was extensively rehearsed by the ET;

31.2 Documents read. As above there is no such obligation on an ET to identify any document.

This is not a Meek point. There is no such compulsion on an ET to state this either under

rule 30(6) or in common law. The ET was referred extensively by both sides to the

documents and took a reading day. The ET’s judgment follows the detailed chronology of

events which is based, in part, on documents. It is fanciful to imply, as the criticism

appears to do, that the ET has ignored relevant documentation;

31.3 R’s submissions. As above, this is not a Meek point. Plainly the ET had regard to them and

considered them “with care”. There is simply no material to doubt let alone contradict that

statement by the ET. In any event as is made clear in Armstrong v Newcastle upon Tyne

NHS Hospital Trust the appellate court is obliged to look at all the materials placed before

the ET in order to discern why the ET reached the conclusions it did. The opposite is not

true: failure to mention the submissions somehow vitiates the decision. That would be a

recipe for over elaborate reasoning precisely which the Court of Appeal in Meek expressly

counselled against;

31.4 Specific alleged factual omissions by the ET raised by R and seemingly accepted by the

EAT:

31.4.1 The apparent conclusion of the EAT that the ET failed to mention the meeting of 20

November 2008 (EAT para 16) is simply wrong. There are extensive findings by the

ET on the meeting - see paras 5.10-5.16;

31.4.2 The apparent conclusion of the EAT that the ET makes no reference to Prof

Wilkinson outlining his principal concerns (EAT para 17) is wrong, there are findings

on this and on issues relating to threats made- see paras 5.26 and 5.27;

31.4.3 The reference by the EAT to the omissions being “too numerous to mention” (EAT

para 14) ignores the many actual findings and takes no account of the examples cited,

some of which are then incorrect, see above.

31.4.4 The reference by the EAT in paragraph 24 of their judgment to “sufficient

documentary evidence... which at the very least should have been referred to in the

judgment” is again an error of law. There is no such obligation and the ET made no

error in not doing so;

31.4.5 The criticism of the ET for not mentioning the meeting of 11 December 2008 (EAT

para 25) is similarly misconceived. As R’s extensive submissions to the ET make clear

(page 132) this was an uncontroversial meeting in respect of which C did not make

any criticism of R, so why should the ET be obliged to raise this and why should it be

an error of law if they do not?

31.5 Failure to refer back in paragraph 14 (see EAT judgment para 26). This appears to have

two aspects:

31.5.1 The ET was, in paragraph 14, making its determination on the issues as required by

rule 30(6)(e); it was not making further findings of fact. As above, this is not a Meek

point.

31.5.2 Once again there is no obligation in a case where there are contested facts, to set

out expressly why the losing party has lost. The obligation is to set out why the

winning party has won and in that analysis, at least implicitly if not explicitly, will be

the explanation why the other party has lost. In any event, it is abundantly clear in

accepting C’s case why R’s case was not accepted: the ET did not believe R’s evidence

on critical matters nor did it accept R’s interpretation on the material events.

(b) The Meek Complaint

32 The EAT erred in law in deciding the appeal raised a Meek point at all when the same was not

in the notice of appeal. It is a basic function of an appellate court to decide a case on the

grounds of appeal advanced by the appealing party. That is not what the EAT did in this case.

33 The appeal was prepared by both sides as a perversity appeal and not a Meek appeal and the

EAT erred in law in treating it as if it was.

(c) Remission

34 The EAT erred in law in referring the matter to a freshly constituted ET when the alleged

deficiency of the ET was as to reasoning. The EAT should have referred the case back to the

original ET for it to make further findings/perfect its reasons.

SIMON GORTON

ATLANTIC CHAMBERS

4-6 COOK STREET

LIVERPOOL

OLD SQUARE CHAMBERS

10-11 BEDFORD ROW

LONDON

07/01/11

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

No A2/2010/2941

BETWEEN:

DR A FAULKNER

Appellant

-and-

THE UNIVERSITY OF MANCHESTER

Respondent

APPELLANT’S SKELETON ARGUMENT FOR PERMISSION TO APPEAL APPLICATION

SIMON GORTON

ATLANTIC CHAMBERS

4-6 COOK STREET

LIVERPOOL

OLD SQUARE CHAMBERS

10-11 BEDFORD ROW

LONDON

07/01/11