Appeal No.	EAT/1075/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 January 1998

Before
THE HONOURABLE MR JUSTICE KIRKWOOD
MR E HAMMOND OBE
MISS D WHITTINGHAM

MISS K WILLIAMS	APPELLANT

DR M MISHRA & DR M SINHA	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED	

	MR JUSTICE KIRKWOOD:     This is the preliminary hearing of an appeal by an employee from the decision of an Industrial Tribunal sitting at Birmingham on 14th and 15th May and 2nd June 1997. The tribunal gave its extended reasons on 2nd July 1997.

	Miss Williams, the employee, was employed as a senior receptionist in the general medical practice of Dr Mishra and Dr Sinha. It appears that in 1996 some tension arose within the workplace. On 26th March 1996 Miss Williams lodged a written grievance in these terms:

“Because of the unfortunate circumstances that I have found myself in, I wish to take out an internal grievance.
I find that the situation has become such, that I cannot continue to work in this environment unless some action is taken.”

	It was a term of Miss Williams’ contract of employment that she would be given a written response to her initial grievance within five working days of receipt of notification. Thereafter, she would be notified in writing of progress every ten working days to completion of investigation. On completion of investigation she would receive a written account of the findings and any subsequent action.

	The complaint was, as I have said, written on 26th March. On 1st April 1996 the Practice Manager, Mr O’Toole, asked Miss Williams for further particulars of her grievance. She drafted the response to that on 3rd April, but then went on annual leave and did not hand it in until 17th April. At that time Dr Sinha was on three weeks’ leave and the letter went to the Practice Manager, Mr O’Toole. Two days after it was handed in, on 19th April, Miss Williams herself went off sick. 

	For the purpose of the investigation of the grievance Mr O’Toole circulated the letter of particulars that Miss Williams had furnished to staff for their comments on 22nd April. Later that same day Mr O’Toole himself went off work sick with pneumonia. 

	The Industrial Tribunal found that also on 22nd April, Dr Sinha’s first day back after his leave, the two doctors saw Miss Williams but that is challenged by her in her Notice of Appeal. However that may be, a few days later the appellant was told by Dr Sinha on the telephone that the investigation of the complaint would have to wait Mr O’Toole’s return from sickness. The Industrial Tribunal found that he returned on 13th May 1996. Miss Williams challenges that statement also. She says that there was evidence that Mr O’Toole returned on 8th May. However that may be, Dr Sinha and Mr O’Toole visited Miss Williams on 13th May 1996 and a further appointment for her with Mr O’Toole was made for 15th May. On the morning of 15th May, Miss Williams telephoned in to say that she had a medical appointment for herself at 2.30 and could not attend the meeting that day. A further appointment for a meeting with Mr O’Toole was made for 20th May. However on that same day, 15th May, Miss Williams wrote a letter of resignation. So the meeting fixed for 20th May 1996 did not take place and the investigation could not pursued to conclusion.

	The Industrial Tribunal in its extended reasons said this:

“5     The leading case of constructive dismissal remains that of Western Excavating (ECC) Ltd -v- Sharpe (1978 IRLR 27 CA). ...”

The Industrial Tribunal reminded itself of the famous passage from the decision of Lord Denning. Then in its extended reasons the tribunal said this:

“The tribunal is unanimously of the view that there was no such conduct on the part of the respondents. There was no unreasonable delay in the investigation of the applicant’s complaint, nor was there anything unreasonable in the manner in which the complaint was being investigated. It is significant that on the two occasions when the applicant requested a meeting with Dr Sinha, he complied with that request on the same day; the first meeting took place on the very day he returned from holiday ...”

I interpose to say that that is a date that Miss Williams says that the tribunal got wrong, although it is one that appears from Dr Sinha’s Notice of Appearance. The tribunal continue:

“... at the second of those meetings he was accompanied by Mr O’Toole who himself had only that day returned to the surgery from a period of serious illness.”

Again, whilst it is accepted by Miss Williams that the meeting with Dr Sinha and Mr O’Toole took place on 13th May, she says that in fact Mr O’Toole had been back in the workplace five days earlier. The Industrial Tribunal continue with its reasons:

“6     Any delay or difficulties in the investigation of the applicant’s grievance were caused by the applicant herself, examples being her failure to deliver the letter of 3 April for a period of 2 weeks, the late cancellation of the meeting arranged for 15 May and her refusal to attend the re-arranged meeting on 20 May. Had the applicant allowed the respondents to conclude their investigations, her grievances may have been resolved to her satisfaction.
7     The unanimous view of the tribunal is that the applicant resigned in circumstances which did not amount to constructive dismissal. It follows that her complaint of unfair dismissal fails.”

	I have referred to the main dates as found by the Industrial Tribunal. It is clear, however, from Miss Williams own Originating Application and statement of case, that from 19th April onwards she was off sick. She appears to have had a meeting with the doctors on 3rd May 1996. but was not well enough herself to attend another meeting with Dr Sinha on 9th May.

	The appellant has not appeared before us today. She has asked us by letter to deal with her appeal on the papers alone and we have done so. We have all read the papers in the appeal individually and have each individually come to the same conclusion about it. 

	For the matter to proceed further the appellant must show an arguable case that the finding of the Industrial Tribunal that there was no unreasonable delay by the employer in the investigation of the grievance or anything unreasonable in the manner of investigation and that therefore there was no conduct of the employer leading to breach of contract, was made in error of law or was manifestly wrong and unsustainable.

	The appellant seeks to impugn incidental findings of fact which do not, however, in our judgment go to alter the total picture as perceived and painted by the Industrial Tribunal. We are unanimously of the view that the appellant’s case of an error of law or perversity in the finding is unarguable. For those reasons the appeal will be dismissed at this stage.