Banks v Ablex Ltd, Court of Appeal - Civil Division, February 24, 2005, [2005] ICR 819,[2005] IRLR 357,[2005] EWCA Civ 173

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Case No: B3/2003/2407

Neutral Citation Number: [2005] EWCA Civ 173

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

HIS HONOUR JUDGE MITCHELL

Sitting at Telford County Court

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 24 February 2005

Before :

LORD JUSTICE KENNEDY

LORD JUSTICE LONGMORE

and

LORD JUSTICE MAURICE KAY

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Between :

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(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

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Allan Gore QC and Richard Davison (instructed by Messrs Yanlon Bowdler) for the Appellant

James Dingemans QC and John Norman (instructed by Messrs Plexus Law) for the Respondents

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Judgment

Lord Justice Kennedy :

1. This is a claimant's appeal from a decision of Judge Mitchell, sitting in Telford County Court, who dismissed the claimant's claim for damages for personal injuries and breach of statutory duty and gave judgment for the defendant. At the conclusion of the hearing in this court we dismissed the appeal, and said that we would give our reasons later.

Pleadings.

2. The claimant was born on 13th April 1951, so she is now 53 years of age. From April 1993 to the end of 1998 she was employed by the defendants, latterly as a night shift supervisor at their factory at Telford where they produced compact discs, cassettes, etc. The claimant actually ceased work on the 15th October 1998, and she was subsequently found to be suffering from a depressive disorder of moderate severity which rendered her unfit for work.

3. In Particulars of Claim settled in 2000 the claimant asserted that her disorder and her loss of employment was caused by -

(1) The conduct towards her of a fellow employee, Chris Briggs, who was an engineer:

(2) The failure of the defendants to prevent that conduct, and

(3) The failure of the defendants to investigate and take action following the incidents which occurred on 13th and 14th October 1998.

The third allegation was abandoned at the trial, so I say little more about it.

4. The conduct complained of was said to amount to a breach of a term of the claimant's contract of employment, which required the defendants not to conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. That conduct (which was also said to amount to negligence on the part of the defendants), was particularised to some extent. As to Briggs' own behaviour it was said that -

(1) During the course of his employment from February or March 1998 Briggs was aggressive and abusive towards the claimant, as described in six witness statements made between May and July 1999 and scheduled to the Particulars of Claim:

(2) In particular on 13th and 14th October 1998 Briggs shouted and swore at the claimant and (on 14th October) assaulted her by putting her in fear that she was about to be struck.

As to the behaviour of the defendants, it was said that they failed -

(1) To heed or act upon Briggs known tendency for aggression and abuse towards his colleagues (especially female colleagues):

(2) To heed or act upon the claimant's complaints about his violent and abusive behaviour towards herself and others. The claimant asserted that she had complained to her superior Mrs Mountford ``on occasions too numerous to particularise'' and specifically following the incident on 13th October 1998.

(3) To discipline Briggs until after the incident on 14th October 1998:

(4) To take any adequate steps to protect the claimant from Briggs, such as moving Briggs and/or the claimant to different shifts.

It was also contended that the claimant was wrongfully dismissed, having resigned in response to the breach of contract alleged.

5. The defendants on 14th September 2000 served a detailed Defence, in which they asserted that Briggs was responsible to the claimant, that he was liable to become upset if his work did not result in machines operating, and that he sometimes shouted and swore but primarily in anger at machines rather than at any individual. It was further asserted that no one complained about Briggs after he had received an oral warning on 16th March 1998 arising out of swearing and threatening behaviour towards Graham Boyle. It was denied that the claimant made any relevant complaints to Mrs Mountford prior to an argument between the claimant and Briggs on 14th October 1998, which arose out of problems with machines. It was admitted that Briggs then swore at the claimant and acted in an unpleasant manner but it was denied that he acted in a threatening way. In other words the allegation of an assault was denied. The defence then dealt with the claimant's complaints about what happened thereafter, and noted that when she consulted her General Practitioner on 16th October 1998 she complained of sexual harassment, a complaint not made in her Particulars of Claim. It was denied that the matters complained of caused the complainant to leave, and it was also denied that the situation was ever such that the claimant was foreseeably likely to suffer from psychiatric injury. Constructive dismissal was denied. It was asserted that the defendants were prepared to accommodate the claimant, as for example by moving Briggs to another shift, and it was further asserted that she had a number of independent reasons for leaving.

6. In a response to a request for further information dated 3rd March 2001 the claimant gave details of her alleged complaints, and revealed that in December 1998 she had made a claim of sexual discrimination to an employment tribunal, apparently based upon the same facts, and that claim had been stayed pending the outcome of proceedings in the County Court.

7. In a counter schedule in relation to the damages claimed, served by the defendants on 31st July 2001, they maintained their denial of liability and began by asserting that the court had no jurisdiction to try the action, it being within the exclusive jurisdiction of the Employment Tribunal.

Hearing in May 2002.

8. I have dealt with the pleadings at some length because they do help to explain what happened on 15th May 2002 when the case was listed for trial before Judge Mitchell. The defendants belatedly produced a skeleton argument which, among other things, explained for the first time what the jurisdictional issue was viz. that the claims amounted to claims for sex discrimination and wrongful termination which were the exclusive preserve of the employment tribunal. The claimant's allegation of constructive dismissal fell away when the judge ruled that she had not been dismissed, but the issue of jurisdiction needed to be pleaded to and, if necessary, resolved after hearing any relevant evidence, which could not all be dealt with at the May hearing. There were also, as the judge noted, potential issues as to causation in relation to the alleged psychiatric injury. Normally a jurisdictional issue would be dealt with first, but as the witnesses were at court it was agreed that they should be heard, and that the judge should then make what he described as ``preliminary findings on the material facts and upon one discrete question on mixed fact and law''. That question was whether on 14th October 1998 the conduct of Briggs towards the claimant amounted to an assault. The case was then to be adjourned to enable the parties to consider how the remaining issues should be dealt with. Before us Mr Allan Gore QC for the appellant (who did not appear below) submitted that at least in retrospect it can be said that the procedure adopted was unfortunate because facts were found before the issues were crystallised, and it is at the heart of this appeal that the findings of fact were inadequate. In my judgment the course chosen by the judge was plainly a sensible course to adopt at a time when he had no reason to think that the claimant's pleadings did not fully set out all of the issues which she wanted to raise. Furthermore the procedure adopted was agreed, so it cannot be criticised in this court.

9. The judge heard evidence over three days. The claimant gave evidence herself, and called the other five witnesses whose...

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