Mervyn v BW Controls Ltd

The Claimant appeals from a judgment of Elisabeth Laing J, sitting in the Employment Appeal Tribunal, of 28 March 2019, upholding the decision of an employment tribunal at Bristol (Employment Judge Livesey and two lay members) dated 24 November 2017, by which the ET had dismissed her claims for unfair dismissal. (The ET also rejected a claim for sex discrimination which has not been the subject of any appeal.)

Elisabeth Laing J granted permission to appeal to this court on 28 March 2019 on the basis that the outcome was “unjust”. While the judge felt bound to dismiss the Claimant’s appeal, she recognised that the case raised issues about: (a) the extent to which an ET should assist a litigant in person in formulating issues; and (b) the circumstances in which an ET can depart from an agreed list of issues when one party is a litigant in person and the list of issues appears to be deficient when compared to the original pleaded case.

The Claimant began work for the Respondent on 8 November 2005 as an Administrator. She initially worked part-time but subsequently took a full-time position. Lee Fowler is the Managing Director and owner of BW Controls and his wife, Julie Fowler, is the Company Secretary and a director. Two other individuals, Mr Smith (the Production Manager) and Simon Hawkes (the Design Engineer), also worked in the office. The Claimant left her employment with the Respondent in midNovember 2016 and submitted an ET1 claim form on 4 December 2016.

In section 8 of her claim form, the Claimant ticked the box next to the words “I was unfairly dismissed (including constructive dismissal)”. Her attached particulars of claim contained allegations which to any employment lawyer would seem to indicate a case of constructive dismissal.

“On 14 November 2016 I had to walk out of my workplace due to stress. I have been working at BW Controls for 11 years. Lee Fowler has made it very difficult for me to carry out my job correctly and legally.”

“Events leading up to this decision include being humiliated by Lee Fowler in front of a member of staff... this started happening in July 2016. When I let Lee Fowler have the information he requested, Lee said he did not agree and would ask "Julie" ... this happened on a number of occasions with Lee Fowler undermining my capabilities. On 14 November 2016 I notified Lee Fowler of discrepancies… he disagreed with me again and I asked, "are you calling me a liar" at this point he was halfway out my office door and walked away.”

“I notified a colleague Simon Hawkes that I was going home as

I felt unwell. I believed I had been called a liar yet again.”

…. “Other things happening include favourite members of staff using vans for personal use. When I protest about this Lee Fowler says it has been agreed by the accountant and that it is none of my business. Other duties that were not in my contract included making up to 30 - 40 drinks a day, cleaning, lifting and carrying heavy boxes upstairs. I am the only female in the building. …I work through my lunch break but I am expected to deduct 30 minutes from my timesheet. I am the only person on the weekly payroll that does not receive an overtime rate."

“After I left the building on 14 November 2016 I never spoke to anyone other than my partner Keith. On the evening of 15 November 2016 I received a text message from Julie Fowler, she asked if I was okay and if I wanted to talk. I replied back to Julie Fowler that I was not okay and would write a letter to Lee. I offered to bring in company property that was needed and asked for some personal items that belonged to me.”

"…At this point I still was not well and suffering from stress things were said via text message that Lee and Julie Fowler interpreted as my resignation. Julie Fowler stated that I was no longer an employee of the company. I did not say I had resigned or followed it up with a resignation letter as Lee Fowler has said. The letter I sent to Lee Fowler on 17 November 2016 was a grievance letter as I was advised to send this by Citizens Advice and ACAS."

“Neither Lee nor Julie Fowler has responded to the contents of the Claimant's grievance letter saying that I have not put anything in writing."

"Lee Fowler also states [in] his letter that he accepts my "resignation" on 14 November 2016, as per my text 15 November and letter dated 17 November 2016? Lee Fowler also states that if I had not "resigned" he would have commenced disciplinary action as I left the building without permission. I notified Simon Hawkes a senior member of staff I was going home."

"I was forced to leave my workplace due [to] the build up of stress making me ill. Ideally, why would I leave 5 weeks before Christmas and just before I was due to receive my bonus which could have been up to £2,000? I have received a bonus for every year for 11 years."

The Respondent’s ET3 Response Form contained passages which indicated that in the company’s view the Claimant had resigned.

The Claimant sent a letter to the ET on 30 January 2017 which responded to the

In the agenda form completed for the telephone case management hearing the

On 8 February 2017 Employment Judge Reed held a case management hearing by telephone. According to the Respondent, the Claimant said at the hearing that she did not resign and did not intend to resign. According to the Claimant, the hearing lasted just under an hour, “went too fast” and was confusing. The judge produced a case management order which included the following:

On 6 March 2017 the Claimant wrote a response to the ET’s case summary which again includes facts which could support a standard unfair dismissal case and a constructive dismissal case. She maintained that she was “dismissed” and that she went home on 14 November 2016 because she was ill. But she also stated that “the behaviour of Lee Fowler was detailed to explain why I went home ill”.

The substantive ET hearing took place in Bristol from 13-15 November. The Claimant appeared in person: she and her partner gave evidence. The Respondent was represented by counsel (Mr Bax) and called eight witnesses.

In its judgment dated 24 November 2019 the ET set out the list of issues which had been identified by Employment Judge Reed at the case management preliminary hearing.

The ET acknowledged that it had “attempted to limit our findings to those matters which were relevant to a determination of the issues”. The ET set out the evidence about the 14 November 2016 incident and acknowledged that the Claimant maintained throughout the hearing that she did not resign. The tribunal reached the following conclusions:

The Claimant’s appeal to the EAT was rejected on the initial sift but at a rule 3(10) hearing (at which Mr Strelitz appeared for the Appellant pro bono under the ELAAS scheme) Judge Eady QC allowed it to proceed, though only on the following ground:

“I claimed that I was constructively unfairly dismissed and the Respondent acknowledged this in its ET3. However, having found that I resigned, the ET failed to go on and consider whether I did so in circumstances that would amount to a dismissal contrary to s 95(1)(c) ERA 1996. The ET ought properly to have done so where such a claim was plainly an alternate pleading by a self-representing litigant.”

The substantive hearing in the EAT came before Elisabeth Laing J on 28 March 2019, with Ms Mervyn once again representing herself. In her judgment the judge made some initial comments about how tribunals should deal with litigants in person. She noted that tribunals “must be careful not to invent a case for a litigant, which the litigant has not advanced or to step into the factual and evidential arena”: Muschett v HM Prison Service [2010] IRLR 451. She cited Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 as authority for the proposition that a tribunal is not under a general duty to hear every allegation in the ET1, but it is able to investigate of its own motion a pleaded complaint which the litigant was not setting out to prove.

The judge expressed doubt as to whether the principle from Mensah could be extended to “a case in which the complaint which the litigant is not setting out to prove is inconsistent with the complaint which he is setting out to prove”. However, she recognised that “if it is obvious from the ET1 that a litigant in person is relying on facts that could support a legal claim”, the ET has a duty to ensure that the litigant in person understands the nature of that claim. Where a litigant in person has decided not to advance a claim, “the ET should be confident that the litigant in person has done so advertently.” The Judge noted that “a person with no legal training might well think that if she wanted to bring an unfair dismissal claim, the last thing that it would be in her interest to concede would be that she had resigned rather than been dismissed”.

Elisabeth Laing J found that the allegations in the ET1 “did raise a potential constructive dismissal claim”. Indeed, the Judge noted that counsel for the Respondent had accepted that the ET1 “described an employee walking out of the job because the job had become intolerable”.

The judge held that the list of issues did not bind the ET. After referring to Hart v English Heritage [2006] IRLR 915, Parekh v London Borough of Brent [2012] EWCA Civ 1630 and Scicluna v Zippy Stitch Ltd [2018] EWCA Civ 1320, she noted that the ET in the present case had recognised that it did have power to revisit the list of issues, because it had asked the parties at the start of the hearing whether they still agreed with that list.

The judge turned finally to the critical question of whether the ET was bound to consider the constructive dismissal claim, or at least to explore whether she intended to abandon the constructive dismissal claim she appeared to have set out in her ET1:

“92.

The ET1 is what gives the ET jurisdiction to decide a dispute; see Chapman v Simon [1994] IRLR 124. The ET does not have jurisdiction to consider a claim not made in the ET1 nor does it have a general duty to consider everything raised in the ET1 (see Mensah) even when the Claimant is a litigant in person. The question on the facts of this case is whether, where a potential constructive dismissal claim is made in the ET1, as I consider it was here, and it is a potentially central aspect of the claim, rather than [a] peripheral matter, the ET should consider that claim, or satisfy itself that the litigant in person has inadvertently withdrawn that claim.

93.

Here, the ET1 described facts which could properly be analysed as a constructive dismissal claim. The Claimant however had not analysed them in that way and according to the case management decision had clearly said that she had not resigned. Nevertheless, she was a litigant in person.

94.

Should the ET, on these particular facts, either have gone on to consider a constructive dismissal claim or satisfied itself that the Claimant had withdrawn her claim and had understood that she had withdrawn it? That might be the case because of the technical nature of the relationship between dismissal and constructive dismissal. It is clear from the ET1 that the Claimant felt that she had been dismissed, but that she was not able to articulate that claim in legal terms.

95.

I have not found this an easy issue to decide. On the one hand the Claimant was not represented and the ET1 appears to describe what in some ways might be seen as a paradigm case of constructive dismissal. On the other hand, perhaps because the Claimant had not had any advice about her position, her clear stance throughout the litigation was that she had not resigned. It was still her position when she gave evidence to the ET and when she made her closing submissions.

96.

In this situation I consider that the ET cannot be criticised for not doing more than it did to investigate the Claimant's claim. It would have been impossible for the ET to investigate this issue without pressing the Claimant on the fundamental aspect of the way that she put her case and had been clearly putting her case for some considerable time, which was that she had not resigned. There was no constructive dismissal claim available to her unless she had resigned.

97.

I do not consider that the ET could properly have done so without descending into the arena. The ET would in effect have had to ask the Claimant to retract from a fundamental factual plank of her claim as it had developed in the correspondence in the Case Management Hearing and as it was expressed in her evidence and closing submissions.

98.

In these circumstances I do not consider that the ET was under any duty to probe any further than it did. I therefore consider that the ET cannot be criticised and did not err in law in adopting the approach which it did to this case. I therefore dismiss the appeal,”

As I have already noted, the judge gave permission to appeal to this court, where Ms Mervyn has been represented by Mr Paul Strelitz. Mr Richard Shepherd appeared for the Respondent company. Each has made concise and helpful submissions.

Mr Strelitz submits that Elisabeth Laing J erred in concluding that the ET was justified in neither considering the constructive dismissal claim nor satisfying itself that the litigant in person had “advertently” withdrawn that claim. The ET should have recognised that the distinction between a dismissal and constructive dismissal case would be confusing for a litigant in person. EJ Reed should have taken more care in the telephone hearing to ensure that the Claimant really wanted to withdraw the constructive dismissal claim and understood the consequences of doing so. The ET should have also been prepared not to adhere to the list of issues at the final hearing.

The Claimant submits that the EAT was wrong to rely on Muschett to conclude that the ET’s approach was justified. Although the Claimant had denied that she had resigned, she had also set out facts which demanded consideration as to whether the Respondent’s conduct amounted to constructive dismissal. The ET should have asked the Claimant why she went home on 14 November 2016 and corresponded in a manner which the ET itself found amounted to a resignation. This would not have strayed into the realms of inquisitorial justice or involved the ET stepping “into the factual and evidential arena”. On the contrary, it would have recognised the parties’ unequal footing. Such an approach would have enabled the Claimant to advance a central element of her pleaded claim.

Mr Shepherd submits that a “Claimant’s case is not what her lawyers (or a judge) may want it to be or think it should or could be” but “what the Claimant asserts it to be”: The Claimant advanced a positive case that she did not resign and adduced evidence in support of that claim; for example, that she “went home ill” on 14 November 2016. Because she claimed not to have resigned, she could not make a claim of constructive dismissal.

The Respondent also submits that constructive dismissal was not an available alternative finding, given that the Claimant had contended that she had not resigned. Since constructive dismissal requires the employee to have resigned in response to her employer’s repudiatory breach, the Claimant could not have made this claim out while arguing that she never resigned.

The Respondent further argues that the Claimant is wrong to submit, as a ground of appeal, that the ET should have assisted the Appellant in her giving of evidence. This

It is useful to look at the essential written material which was available to the ET on the question of what the Claimant was really asserting:-

I have already noted what occurred at the telephone case management hearing. At the substantive hearing a bundle of documents was produced which included the Respondent’s notes of a series of phone calls and text messages involving “Julie” (Mrs Fowler) and “Marion” (the Claimant) on 15, 16 and 17 November 2016. These included:-

The Claimant’s witness statement dated 5 June 2017 nowhere states expressly that she had been dismissed. In the first paragraph it says that “the Respondent’s believed that I resigned based on the interpretation of the text messages sent on 15 November 2016 between Julie Fowler and myself”.

The witness statement of Mr Fowler states that just before midday on 14 November 2016 the Claimant walked past his office and said “stuff your fucking job”.

Rule 29 of the Employment Tribunals Rules of Procedure 2013 provides:-

“The Tribunal may at any stage of the proceedings, on its own initiative or on application, make a case management order. Subject to Rule 30(A) 2 and 3 [neither of which is relevant here] the particular powers identified in the following rules do not restrict that general power. A case management order may vary, suspend or set aside an earlier case management order where that it necessary in the interests of justice, and in particular where a party affected by the earlier order did not have a reasonable opportunity to make representations before it was made.”

The decision of this court in Parekh v London Borough of Brent [2012] EWCA Civ 1630 is in my judgment instructive. It was an unfair dismissal case in which the Claimant appeared in person at a pre-hearing review in the employment tribunal; the Respondent was represented by counsel. (There was an issue about whistleblowing which is not relevant for present purposes.) The council’s case was that Mr Parekh had been fairly dismissed on the grounds of lack of capability. The judge at the PHR made an order which included the following:-

Mr Parekh appealed, first to the EAT and then to this court, from the order made at the PHR. The complaint on his behalf was that as the list of issues did not include the prior question "Has the [Council] proven on the balance of probabilities that the reason for the dismissal of [Mr Parekh] was capability?" Mr Parekh was thereby prevented from disputing the Council's given reason for dismissing him.

In this court Mummery LJ said [emphasis added]:-

We were referred by Mr Shepherd to the first sentence of paragraph 32 of Mummery LJ’s judgment in Parekh, but it does not assist in determining the present case. Mummery LJ was not saying that an agreed list of issues cannot be revisited by the employment tribunal: that would be inconsistent with the sentence I have italicised in the previous paragraph of his judgment. It is important to remember that Parekh was an interlocutory appeal from a decision at a pre-hearing review in a case which had not, even after appeals to the EAT and to this court, reached a substantive hearing.

The recent decision of this court in Scicluna v Zippy Stitch [2018] EWCA Civ 1320 concerned a somewhat unusual claim for unauthorized deduction from wages and breach of contract. Both sides had been represented throughout. An agreed list of issues had been filed with the ET. One of these was what was the agreement regarding the Claimant’s wages, if any. The Claimant said there was an oral agreement for him to receive £100 net per day in salary and that while he had agreed to defer payment he had not waived his rights to the salary. The Respondent said that there was no agreement for the Claimant to be paid a salary until another employee departed.

Longmore LJ said:-

“14.

Ever since the Woolf reforms, parties in the High Court have been required to agree lists of issues formulating the points which need to be determined by the judge. That list of issues then constitutes the road map by which the judge is to navigate his or her way to a just determination of the case. Employment tribunals encourage parties to agree a list of issues for just that reason and, if advocates are retained on both sides, it is right and proper for a list of issues to be prepared.

15.

In paragraphs 32-33 of Land Rover v Short (2011) UKEAT/0496/10/RN Langstaff J approved the submission of counsel that:-

"it was trite law that it was the function of an Employment Tribunal to determine the claims which the claimant had actually brought, rather than the claims which he might have brought and that accordingly the claimant was limited to the complaints set out in the agreed list of issues."”

After citing paragraph 31 of Mummery LJ’s judgment in Parekh, Longmore LJ continued:

“17.

Professional advocates were retained in the present case and agreed the list of issues which was given to the employment judge (so we were told) on the morning of the hearing. The judge was, therefore, entitled to proceed on the basis that the only issue in relation to the claim for unauthorised deduction from wages and breach of contract was whether there was an agreement that the claimant be paid a salary. Having decided that there was such an agreement, she not unnaturally upheld the contract claim as being outstanding on termination. She never dealt with any argument that nothing was outstanding because the company could not afford to pay the claimant's salary and still less with any argument that, even if the company could not afford to pay it, it was necessary to imply a term that, nevertheless, the company was obliged to pay once the employment had come to an end. These issues were never said to be issues which the judge needed to decide.

Underhill LJ agreed with Longmore LJ. At the end of his short judgment he said:-

“There are exceptional cases where it may be legitimate for a tribunal not to be bound by the precise terms of an agreed list of issues: but this is not one of them.”

Peter Jackson LJ agreed with both judgments.

I do not read the last sentence of the judgment of Underhill LJ in Scicluna as imposing a requirement of exceptionality in every case before a tribunal can depart from the precise terms of an agreed list of issues. It will no doubt be an unusual step to take, but what is “necessary in the interests of justice” in the context of the tribunal’s powers under Rule 29 depends on a number of factors. One is the stage at which amending the list of issues falls to be considered. An amendment before any evidence is called is quite different from a decision on liability or remedy which departs from the list of issues agreed at the start of the hearing. Another factor is whether the list of issues was the product of agreement between legal representatives. A third is whether amending the list of issues would delay or disrupt the hearing because one of the parties is not in a position to deal immediately with a new issue, or the length of the hearing would be expanded beyond the time allotted to it.

In Mensah, Gibson LJ encouraged tribunals “to be as helpful as possible to litigants in formulating and presenting their cases. It is always good practice for Industrial Tribunals to clarify with the applicant (particularly if appearing in person or without professional representation) the precise matters raised in the IT1 which are to be pursued and to seek confirmation that any others so raised are no longer pursued”.

In Muschett the claimant submitted that, since he was a litigant in person, the employment judge should have helped him to unearth relevant facts to help him make his case. Rimer LJ rejected this view of the function of employment judges at [31]:

“It is not their role to engage in the sort of inquisitorial function that Mr Hopkin [counsel for the claimant] suggests or, therefore, to engage in an investigation as to whether further evidence might be available to one of the parties which, if adduced, might enable him to make a better case. Their function is to hear the case the parties choose to put before them, make findings as to the facts and to decide the case in accordance with the law. The suggestion that, in the present case, the employment judge committed some error of law in failing to engage in the sort of inquiry that Mr Hopkin suggested is, in my judgment, inconsistent with the limits of the role of such judges as explained by this court in Mensah v. East Hertfordshire NHS Trust [1998] EWCA Civ 954; [1998] IRLR 531 (see paragraphs [14] to [22] and the cases there cited by Peter Gibson LJ). Of course an employment judge, like any other judge, must satisfy himself as to the law that he must apply to the instant case; and if he assesses that he has received insufficient help on it from those in front of him, he may well be required to do his own homework. But it is not his function to step into the factual and evidential arena.”

In the recent EAT case of McLeary v One Housing Group Ltd UKEAT/0124/18/LA,

In the present case to use Judge Auerbach’s vivid phrase, it “shouted out” from the contents of Ms Mervyn’s Particulars of Claim that, on a proper analysis, she was alleging that she had been constructively dismissed.

It is good practice for an employment tribunal, at the start of a substantive hearing with either or both parties unrepresented, to consider whether any list of issues previously drawn up at a case management hearing properly reflects the significant issues in dispute between the parties. If it is clear that it does not, or that it may not do so, then the ET should consider whether an amendment to the list of issues is necessary in the interests of justice.

In this case (putting to one side the claim for alleged discrimination) the pre-reading of the essential material (in particular the ET1 and ET3) which no doubt occurred should have indicated to the tribunal that it was in truth far more likely than not that the Claimant had resigned, and that the real issue between the parties was (or should be) why she did so.

Against that background, and with the Claimant appearing once again in person, I do not think, with respect, that it was enough for the Tribunal simply to ask at the start of the substantive hearing whether the parties confirmed the previous list of issues. It would not have amounted to a “step into the factual and evidential arena” for the tribunal to have said that it seemed to them that there was an issue as to whether Ms Mervyn has been dismissed or had resigned and that the list of issues ought to be modified accordingly, perhaps on the lines suggested in the Respondent’s agenda form produced for the case management hearing. The Respondents had suggested these questions:

Such a course of action would of course have required the tribunal to ask both parties whether they were in a position to proceed immediately. But, as was fairly accepted by Mr Shepherd in argument, in this case no adjournment would have been necessary, save possibly until the afternoon of the first day of the hearing. The Claimant had set out her case, including what a lawyer would describe as allegations of repudiatory conduct, in her witness statement. The Respondent had eight witnesses available to deal with the contents of that statement. In Mr Fowler’s witness statement he had said that, in view of the case management order that it would not need to hear evidence

In the present case it was necessary in the interests of justice for the list of issues to be amended so that the tribunal could consider “ordinary” unfair dismissal and constructive unfair dismissal as alternatives. This is not to say that if it had done so Ms Mervyn’s claim would have succeeded, but I do not think that it is possible for this court to say that it could have made no difference to the outcome.

I would therefore allow the appeal and remit the constructive dismissal claim for rehearing by an employment tribunal, if possible comprised of Employment Judge Livesey and his colleagues who conducted the previous hearing. Their previous findings of fact should stand, in particular the finding that the Claimant resigned on 14 or 15 November 2016. Their remaining task is to hear evidence and argument on the question of whether that resignation occurred in circumstances in which Ms Mervyn was entitled to terminate her contract without notice by reason of the employer’s conduct.

I agree that this appeal should be allowed for the reasons given by Bean LJ.

For all the reasons set out above, I agree that the appeal should be allowed and remitted to the employment tribunal and for the purposes of that further hearing, the previous findings of fact should stand. It follows that I also agree that on the facts of this case, in the interests of justice, the tribunal should have amended the list of issues so that it could consider unfair dismissal and constructive unfair dismissal as alternative claims. This is not a case in which in amending the list of issues, the tribunal would have been inviting a completely new complaint. Far from it. Just as in McLeary v One Housing Group Ltd, in this case the contents of the ET1 and ET3 shouted out that constructive unfair dismissal was being claimed in the alternative.

Although it would have been most convenient and appropriate had the matter been clarified at the case management hearing, in the circumstances of this case, there was nothing to prevent the tribunal from making the amendment. Obviously, the tribunal must take care not to step into the factual and evidential arena and not to be perceived as favouring one party over another. However, in order to do justice to all parties, it is equally important, where at least one of those parties is unrepresented, to clarify the issues which arise on the pleadings and to seek to confirm whether any and, if so, which claims have been conceded.

The appeal be allowed.

The Appellant’s constructive dismissal claim is remitted for rehearing by an employment tribunal in accordance with paragraph 48 of the judgment of this court.

The Respondent do pay the Appellant’s costs in this court to be assessed on the standard basis if not agreed.