Veitch Penny LLP - Exeter | Crediton, Devon

Case

Logan v Customs and Excise Commissioners
Court of Appeal (23 July 2003)

Issues

(1) Unfair dismissal
(2) Submission of no case to answer
(3) Circumstances in which a decision of no case to answer can be made

Facts

Ms Logan enter a complaint to the Employment Tribunal alleging that she had been unfairly dismissed, relying on constructive dismissal. She argued that in April 1997 she was subjected to a “verbal assault” from her line manager. Following absence, she returned to work in June to a temporary post arranged for her. She invoked the grievance procedure in respect of the conduct she had received. Her complaint was rejected. The temporary work ended and she was posted to the same building as her former line manager. Further attempts to find work were unsuccessful. In February 1998 she became ill through stress and was absent. Ultimately, she was informed that she would have to choose between medical retirement and dismissal. Instead, she resigned on 21 May 1999.

The tribunal heard her give evidence, and be cross-examined. Thereafter, her employer submitted that there was no case for it to answer. The tribunal concluded that the employer had done everything that it could to assist Logan. Her delay (18 months) in terminating her contract was too long; she had waived any breach and affirmed the contract.

The tribunal stated that it was satisfied that Logan had not established her case, although it was accepted that it was rare for a tribunal to reach such a decision.

Logan appealed to the Employment Appeal Tribunal who found in her favour, stating that the circumstances of the case were not so clear-cut to justify the tribunal’s decision.

The employer appealed the decision arguing that a distinction could be drawn between cases where the burden of proof was on the employee (when the lower threshold of having clearly failed to establish the case applied) and other cases where a higher test of the circumstances being hopeless or frivolous was required.

Decision

The employer’s appeal would be dismissed.

The Court of Appeal noted that the tribunal should normally hear both parties, although there was no inflexible rule which stated that was the case.

A decision not to hear both parties must be exercised with caution, although it was acknowledged that in a hopeless case, it may be a waste of time to hear all the evidence. Consequently, the decision should only be considered in frivolous or exceptional cases, even where the burden of proof fell on the Applicant (e.g. discrimination or constructive dismissal).

Where there was no burden of proof (as under section 98(4) Employment Rights Act 1996) it was difficult to determine those circumstances in which it was appropriate to terminate the proceedings at the end of the first party’s evidence.

Comments

Accordingly, the tribunal’s approach had been correct, but its decision to terminate the case after Logan had given evidence was not a step that a properly directed tribunal would have taken. The appeal tribunal’s decision would stand and the matter would be remitted to the tribunal for rehearing.