Appeal No. EAT/626/92
	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 21st July 1993

	Before

	HIS HONOUR JUDGE J HULL QC

	MR D G DAVIES

	MR J H GALBRAITH CB

	MRS M R MITCHELL	APPELLANT

PETER PAN PLAYTHINGS	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR M REUBEN
Consultant
Management & Technical Resources
Midland House
22 Midland Road
Olney
Bucks
MK46 4BL

	JUDGE J HULL QC:  In this case Mrs Mitchell appeals against the decision of the Industrial Tribunal sitting at Bedford on the 27th April and 24th June 1992.  She was there in person with her husband who helped her and represented her.  She complained that she had been unfairly dismissed by her employers, by whom she had been employed since 1985.

	The Industrial Tribunal heard and saw a good deal of evidence, not only oral evidence, but written statements which were placed in front of them.  They say, and we have no reason whatever to doubt it, that they considered:
"the whole of the evidence both oral and documentary".
It is true that in paragraph 1 of their decision they set out the names of certain makers of statements whose evidence they took into consideration but not those of three witnesses whom Mrs Mitchell had statements from, which she laid before the Tribunal.  However, they later make it clear that they considered all the evidence.  In view of what was said in the Notice of Appeal the Chairman was asked to communicate with this Tribunal. He says that they did indeed consider all the written statements.  With regard to Mr Groom, the Production Director or Production Manager, his statement was unsigned and it was desired that he should be called and that his evidence should be given viva voce.  Unhappily he was out of the country. The hearing was not adjourned for the purpose of adducing his oral evidence.  But in those circumstances, as the Chairman says in his statement to this Tribunal, and as is made plain in the decision itself, less weight could be given to Mr Groom's statement than to that of the other written statements.  They say at the end of paragraph 1 of their decision:
"In reaching our decision we have considered Mr Groom's statement as part of the evidence.  However, because Mr Groom did not give evidence on oath and could not be cross examined, and his statement was unsigned, we have not placed the same degree of reliance on his evidence as we might had he given evidence on oath,"

Mr Reuben, who appears today for Mrs Mitchell, says that they should not have taken Mr Groom's statement into account at all. That is a point in his Notice of Appeal.  It is said (wrongly as it turns out) in that Notice of Appeal that the Tribunal refused to allow the Appellant to introduce her written statements, and it goes on:
"The Tribunal further admits that Mr Groom's statement was considered was considered by it, notwithstanding that it contained controversial and disputed material and at least one statement which was untrue of the face of it."

We have not looked at the statements, but assuming that that is correct, if a statement was untrue on the face of it, a Tribunal which took as much care as this one did in arriving at its decision would hardly overlook that.

	This was a long and careful statement of the reasons for the decision.  It is a matter for the Industrial Tribunal, which is supposed to proceed informally, how they deal with the evidence.  They will of course hear any relevant oral evidence which is adduced and they may, in their discretion, pay attention to written evidence which is sought to be put before them.  They must use their good sense about that.  If a statement is unsigned but contains important evidence then it may very well be, as this Chairman says, that they give less weight to it than they otherwise would.  It may very well be that this Tribunal might have said, "we are not going to pay attention to this statement" or even "we are only going to pay attention to oral evidence which is tested by cross examination in view of the depth of the controversy between the parties".  Those are matters for the discretion of the tribunal of fact, they see the parties, they hear the contentions that are made and it is, unless they go wrong in law, a matter for them how they deal with evidence of this sort. 

	They find the facts at considerable length.  This lady, the complainant, was a responsible and experienced worker.  She was promoted as temporary leading hand and she was promoted again to a senior rank as leading hand and her case was that she was acting really as supervisor of the department in which she was.  There were difficulties in that department, particularly associated with quality control, and these difficulties at times, not surprisingly, because there was for a time no supervisor and apparently not very much back-up, had reduced her to despair.  She was not apparently getting all the support which she should have received.  The Company was concerned about this, they had respect for Mrs Mitchell, and they decided to appoint a supervisor and did so.  In view of the feeling that she had about the extent of her responsibilities it is not surprising, looking at it simply from her point of view, that that upset her very much.  She felt that she had been, in effect, the supervisor there.  She left her work and said that she had been constructively dismissed.  She said that she had been guaranteed promotion to the rank of supervisor.  The Tribunal went into that, they say at paragraphs 14 and 15:
"We accept the respondent's evidence that whilst there was every prospect that the applicant could be promoted to the level of supervisor, such promotion was not guaranteed.

In evidence the applicant said that Mr Groom had told the applicant that he would like to make her a supervisor and that this conversation took place in December 1989.  The letter dated 18 December 1989 from the respondent to the applicant merely confirms her appointment as a permanent leading hand, following her temporary appointment in September 1989.  At that stage we consider it inconceivable that the respondent would attach a firm commitment to make the applicant a supervisor.  Had that been the case, the applicant would hardly have remained silent when in December 1990 her promotion was from the lower grade of leading hand to higher grade.  We accept the applicant's evidence that she always wanted to be a supervisor and that the respondent never told her that such an event was impossible or unlikely."

and having considered all the evidence, which as I say included written evidence which is not before us, they came to the conclusion that Mrs Mitchell had not been constructively dismissed, and that there had been no breach of contract of a sort going to the root of the contract or entitling her to treat it as being at an end.

	Now Mrs Mitchell appeals to us.  She makes the point which I have already read from paragraph 1 of her Notice of Appeal and then she goes on to make various criticisms of the findings of fact, which Mr Reuben very fairly says, are essentially based on that first contention and are really saying that the Tribunal should, had they approached their duties correctly, have reached a different result.

	We, like the Tribunal, have great sympathy for Mrs Mitchell but we do not think that it is established in any way that this Tribunal did not approach their duty carefully and conscientiously and as a tribunal of fact should.  We think that the way in which they proceeded is one which cannot be criticised by us.  It is true that, as I have already said, different tribunals might have proceeded in different ways, these are matters which inevitably fall within the discretion of the tribunal of fact.  The overwhelming impression from reading the papers and the Chairman's Note is that this Tribunal proceeded fairly and properly.  The decision which they reached appears to us, given that they approached the facts properly and in a balanced way and heard all the evidence, and read all the evidence which was put in front of them, to be unassailable.  Given the facts which they found, after their careful consideration, there is no doubt that Mrs Mitchell was not dismissed constructively and that they were right to reach that conclusion having made the findings of fact which they did. 

	In those circumstances, it appears to us that this appeal cannot succeed on any view.  We therefore, though with regret, are obliged to dismiss the appeal.