Martin v Surrey and Sussex NHS Trust

A disagreement with an Employment Tribunal’s assessment of the evidence and findings of fact does not, by itself, raise a question of law. The Employment Appeal Tribunal has jurisdiction only where a question of law arises from the facts found. Where the Tribunal’s findings do not establish employer conduct capable in law of amounting to unfair constructive dismissal, an appeal cannot succeed. Permission should be refused where there is no arguable legal ground, particularly where pursuing the appeal would expose an unsuccessful litigant to substantial costs.

Mrs Martin resigned from her employment as a switchboard operator after becoming concerned about the allocation of responsibility for emergency procedures and the manner in which her supervisor dealt with the issue. She claimed that she had been unfairly constructively dismissed.

The Employment Tribunal found no bullying or inappropriate conduct which entitled her to regard herself as driven from her employment. On a preliminary hearing, the Employment Appeal Tribunal held that her proposed appeal was incapable of succeeding. Mrs Martin applied to the Court of Appeal for permission to appeal, principally challenging the Tribunal’s factual appraisal. The central issue was whether any arguable question of law arose.

Application refused.

1. An employee who resigns may have been unfairly dismissed where the resignation is caused by inappropriate or non-contractual conduct by the employer or those in authority. The legal issue was not controversial in this case; the dispute concerned the facts and their appraisal.
2. The Employment Tribunal was entitled to focus on the incident involving the fellow employee and the correspondence which Mrs Martin had seen, because those matters prompted her own enquiry. The underlying rights and wrongs of the fellow employee’s treatment were not themselves determinative. What mattered was the effect of the events on Mrs Martin’s case and the Tribunal’s findings about the supervisor’s conduct.
3. Parliament had entrusted fact-finding to employment tribunals. Although tribunals could make mistakes, the Employment Appeal Tribunal had jurisdiction only where a question of law arose from the facts found. Disagreement with an unwelcome factual finding, including the finding that the supervisor was not bullying Mrs Martin, did not establish such a question.
4. The Tribunal’s findings were determinative. The conduct found did not amount in law to unfair constructive dismissal, and there was no point of law capable of being appealed. Permission would have exposed Mrs Martin to a substantial costs risk in an appeal bound to fail.

• Employment Tribunal: Found that there had been no bullying or inappropriate conduct amounting to constructive dismissal.
• Employment Appeal Tribunal: At a preliminary hearing, held that the proposed appeal was incapable of succeeding.
• Court of Appeal (Civil Division): Refused Mrs Martin’s application for permission to appeal: [2001] EWCA Civ 1991.