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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Matthews v Tesco Stores Ltd [2002] EWCA Civ 202 (11 February 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/202.html Cite as: [2002] EWCA Civ 202

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(Mr Recorder Langstaff QC)

		Royal Courts of Justice Strand London WC2 Monday, 11th February 2002

Monday, 11th February 2002

1. LORD JUSTICE SEDLEY: Mr Matthews senior has come before the court today very helpfully representing his son Grant who has dyslexia and finds it difficult to handle documents. I have been glad to listen to him, and he has explained his case well. He seeks permission to appeal against the decision of the Employment Appeal Tribunal, presided over by Mr Recorder Langstaff QC, on 7th September 2001 which dismissed, on the court's preliminary issue procedure, the appeal that Mr Matthews had brought against a decision of an Employment Tribunal. That Tribunal had sat at Shrewsbury and in January 2001 handed down a decision dismissing Mr Matthews' complaint of constructive dismissal against Tesco, for whom he had worked. Grant Matthews had, to put it shortly, been subjected to some disgraceful bullying, not merely by fellow employees but by fellow employees with authority over him, two of the people being in management positions. The detail I do not need to go into, because it is established. I hope that in any future job applications which Grant Matthews makes he will feel able to tell prospective employers that in that respect he was vindicated, and vindicated in fact by an internal inquiry that Tesco themselves conducted in pursuance of their own disciplinary and complaints procedures.
2. But the dismissal, which was necessarily the basis of the complaint to the Employment Tribunal, was said to be a constructive dismissal resulting from two things. One was the events up to and including the complaints hearing. The other was that, subsequently to it, Mr Matthews found himself under surveillance by CCTV cameras and felt that he was being picked upon by Tesco.
3. Because the reasons are set out with clarity, there is no need for me to do more than to say that the Employment Tribunal decided that these events did not amount to constructive dismissal, that is to say to a fundamental breach by Tesco of that side of the contract of employment. The Employment Tribunal considered that, far from failing properly to investigate the bullying, Tesco had done so thoroughly.
4. So far as the surveillance cameras went, the Tribunal, in language which perhaps was harsher and more apt to give offence than it need have been, thought that Grant Matthews, putting it shortly, was imagining things. All that was necessary, however, was to say that Tesco had good reasons for having security cameras in place. On that basis the Tribunal dismissed the application.
5. The Employment Appeal Tribunal considered that no point of law -and I stress to Mr Matthews that there has to be a point of law -arose from this decision. The importance of there having to be a point of law is that, for better or for worse, as far as questions of fact are concerned the Employment Tribunal is not only the first but the last stop in ascertaining them.
6. The Employment Appeal Tribunal concluded that there had not been anything amounting to an error of law by the Employment Tribunal. The late handing over of Tesco's documents, when Mr Matthews had dutifully handed over his documents much earlier, was thoroughly unfortunate but did not cause any injustice because time had been offered then and time was again available overnight for Mr Matthews to catch up with the documents and to see where they took him; something which I have no doubt he was able to do. He shows competence in his grasp of written material and the documents are not extensive.
7. The second issue was Mr Matthews' assertion that Tesco's solicitor had lied to the Employment Tribunal. That was not accepted. I think it may be difficult at times for a lay person to appreciate that a lawyer has to present his client's case. The lawyer does not make up the case. If a case falls apart and turns out to be contradictory, it is not the lawyer lying: it is the lawyer's clients who are getting things either deliberately or accidentally wrong. Here there was an issue, for example, about the locking of the kiosk which was connected with the surveillance cameras. The fact that Mr Matthews understandably disagrees with the Employment Tribunal's view about it is not, unfortunately, a legal ground for an appeal. Tribunals have, for better or for worse, to make up their minds as to what the facts are. Mr Matthews wanted witnesses called for whom he was not given witness orders. This also was something that the Employment Appeal Tribunal had considered, but they were not satisfied that these were witnesses who could have advanced Mr Matthews' case. He has explained it to me again today, and I can see exactly why. These were witnesses about the bullying. But the bullying was not an issue. It was on the basis that Grant Matthews had indeed been bullied that the complaints procedure, and ultimately the Employment Tribunal procedure, went ahead. So these were not things that needed to be proved, and to elaborate them was not going to advance the case.
8. Before this court Mr Matthews has indicated in writing also that he complains of the bullying itself as a ground of constructive dismissal. This I am afraid - and he has not pursued it today - is not now admissible as the basis of the case. The basis of the case was what I have described and what Mr Matthews has perfectly candidly accepted in argument today: it related to the disciplinary procedure and the surveillance, not to the underlying bullying. The underlying bullying, I should also say, would not have stood up as the basis of constructive dismissal, if this is any consolation, because it was only after it had been stopped that the surveillance had started and Grant Matthews felt he could not stay in the job.
9. These matters, therefore, neither singly nor collectively add up to a question of law such as would justify the grant of permission to appeal. I would, however, like just to say one other thing in parting with this case.
10. If I were to give permission to appeal and permission were taken advantage of, this court, unlike the Employment Tribunal and unlike the Employment Appeal Tribunal, is not a cost-free jurisdiction. Ordinarily the party who loses pays the winning side's costs. In the light of the view that I have come to and have explained, I would be doing Mr Matthews no favour whatever in giving permission to appeal, because he would be at risk if he lost the case - and on the view I have formed he almost certainly would lose it - of having to pay thousands of pounds in costs to Tesco. Unlike Mr Matthews, they would turn up with a full team of lawyers. That is one of the reasons why this permission to appeal procedure is of real value. It prevents people getting into debts that they cannot get out of; and it may be some consolation to Mr Matthews that, at least by holding as I do that it is not a proper case for permission to appeal, I spare him the worry and the risk that would go with the possibility of having to pay the costs if he lost. But that is not the reason for my refusal. The reason is the one that I have given.
Order: Application refused.