Unfair dismissal - burden of proof for constructive dismissal - tribunal in error to accept submission of no case to answer

Logan v Customs & Excise Commissioners: CA (Lord Justice Ward, Lord Justice May and Lord Justice Carnwath): 23 July 2003

The employee, relying on constructive dismissal, had complained of being subjected to a verbal assault by her line manager which caused her to be off work on sick leave.

She invoked the grievance procedure but her complaint was rejected.

She returned, being found work in another department, but that came to an end and attempts to find her other work away from the line manager failed.

Thereafter, she again suffered ill health and was away from work.

In May 1999, she was advised that unless she returned she faced dismissal.

She resigned.

At the hearing of her complaint of constructive unfair dismissal, the employment tribunal, after hearing her evidence, held that the employer had no case to answer.

The Employment Appeal Tribunal allowed her appeal, holding that only in exceptional or frivolous cases should the complaint be decided without hearing the employer's evidence.

The employer appealed.

Daniel Stilitz (instructed by the Solicitors Office, Customs & Excise Commissioners) for the employer; Ashley Serr (instructed by Howard Cohen & Co, Leeds) for the employee.

Held, dismissing the appeal, that although there was no inflexible rule that a tribunal had always to hear evidence from both parties, that should normally be done; and that only rarely would it be appropriate to make a submission of no case to answer to an employment tribunal hearing a complaint of unfair dismissal, and even more rarely would such a submission succeed.