Logan v Customs & Excise

In unfair-dismissal proceedings, a submission of no case to answer at the end of the claimant’s evidence is exceptional. The employment tribunal should normally hear both sides and must exercise the power cautiously, particularly in constructive-dismissal cases where the employer’s evidence may be needed to reveal the whole picture. The power is appropriate only where the claimant has clearly failed in law or fact, or the case is hopeless.

A tribunal must give sufficient reasons to show why a party won or lost. The last-straw inquiry assesses the employer’s conduct cumulatively. Proximity in time or nature is relevant but is not a rigid legal requirement. Delay may evidence affirmation, but does not automatically establish it.

Ms Jean Logan brought an unfair-dismissal complaint based on constructive dismissal. The Employment Tribunal dismissed it on 13 March 2000 at the end of her evidence, holding that the Commissioners had no case to answer. It treated an alleged unfair grievance investigation as an earlier repudiatory breach that had been affirmed by delay, and rejected later managerial interviews as a final straw.

The Employment Appeal Tribunal allowed her appeal on 23 May 2002. It held that the case was not sufficiently exceptional for a half-time dismissal and that the Employment Tribunal had not adequately explained its rejection of the final-straw argument. The Commissioners appealed. The central issues were the proper limits of a no-case-to-answer submission, the duty to give reasons, and the operation of the last-straw doctrine after delay.

Ward LJ delivered the judgment, with May and Carnwath LJJ agreeing.

1. Disposition. The Commissioners’ appeal was dismissed with costs. The matter was remitted to a differently constituted Employment Tribunal.
2. No case to answer. The authorities establish that an employment tribunal should normally hear both sides. A submission at the end of the claimant’s case is rare and must be approached with caution. It may succeed where the claimant has clearly failed in law or fact, or the case is hopeless or frivolous. This principle applies with particular force in constructive-dismissal cases, where the employer’s evidence may be necessary to reveal the whole picture. The court relied on Oxford v Department of Health and Social Security 1977 I.C.R. 885, Ridley v GEC Machines Ltd. [1977] 13 I.T.R. 195, Coral Squash Clubs Ltd. v Matthews [1979] I.C.R. 607, and Jones v Mid-Glamorgan County Council [1977] I.C.R. 815.
3. The Employment Tribunal stated the correct legal approach, but applied it improperly. It failed to determine whether the alleged bullying was established. That issue mattered because the claimant relied on one breach arising from the bullying and another arising from the unfair grievance investigation. Her evidence had not been rejected as incredible. The employer’s evidence was therefore needed before the tribunal could decide whether the later managerial conduct was a final straw. The decision was one which no reasonable tribunal, properly directing itself, would have made.
4. Reasons. A tribunal must identify the issues vital to its conclusion and explain how it resolved them. It need not identify every evidential detail, but the parties and an appellate court must be able to understand why one side won and the other lost. The Employment Tribunal did not explain why the manager’s response to the claimant’s request for protection was not capable of being a final straw. This failed the requirement stated in Meek v City of Birmingham [1987] IRLR 250 and authoritatively restated in English v Emery Reinbold & Strick Ltd. [2002] 1 W.L.R. 2409.
5. Last straw and affirmation. The last-straw doctrine requires the employer’s conduct to be assessed cumulatively. The final act need not itself amount to a breach of contract. Proximity in time or nature may be relevant to continuity, but it is not an inflexible legal requirement. A tribunal must also distinguish affirmation from waiver. Delay may evidence an election to continue the contract only where the delay objectively demonstrates that election. Continued complaints may show that the employee had not accepted the position. These questions required a proper rehearing. The court applied Lewis v Motorworld Garages Ltd. [1986] I.C.R. 157.
6. The court noted that the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001, regulation 10, introduced an overriding objective, but the issue did not arise because the appeal concerned an earlier exercise of discretion. It nevertheless urged caution in treating a no-case submission as equivalent to summary judgment.

• Court of Appeal (Civil Division): In [2003] EWCA Civ 1068, dismissed the Commissioners’ appeal with costs and remitted the matter to a differently constituted Employment Tribunal.
• Employment Appeal Tribunal: Allowed Ms Logan’s appeal on 23 May 2002, holding that the Employment Tribunal should not have dismissed the complaint after hearing her evidence alone and had failed adequately to explain its reasoning.
• Employment Tribunal: Dismissed the unfair-dismissal complaint on 13 March 2000 at the end of Ms Logan’s evidence, accepting a submission that there was no case to answer.