England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge Pugsley)

		Royal Courts of Justice Strand London WC2 Friday, 26th July 2002

Friday, 26th July 2002

1. LORD JUSTICE PETER GIBSON: This is an appeal by the employer, Cape Industrial Services Ltd ("Cape"), from part of the order made by the EAT on 13th November 2001 at a preliminary hearing. Cape had appealed from the decision sent to the parties on 13th July 2001 of an Employment Tribunal sitting in Leeds that the employee, Mrs Ambler, was unfairly dismissed by Cape. Cape in its Notice of Appeal to the EAT set out 11 grounds of appeal. The EAT allowed the appeal to go ahead to a full hearing on only one ground, but dismissed Cape's appeal on the other grounds. Cape wishes this appeal to go ahead on some of the rejected grounds.
2. I need only summarise the facts found by the Tribunal. Mrs Ambler was employed by Cape from November 1991 until she resigned on 24th November 2000 in circumstances in which she claimed she was constructively dismissed. She applied to the Employment Tribunal, complaining of unfair dismissal. The Tribunal upheld her complaint.
3. In its Extended Reasons the Tribunal found that contractually Mrs Ambler had two distinct jobs. For half her time she was secretary to the managing director, Mr Ainley, and for the other half she was personnel officer. Her role as personnel officer expanded, and Cape took on an administrative assistant and later a staff administrator, Mrs Eastwood. Those two employees reported to Mrs Ambler, and the Tribunal found that her job as personnel officer included responsibility for those two employees.
4. Mrs Eastwood resigned on 25th August 2000. Mrs Ambler proposed to Mr Ainley that she, Mrs Ambler, should take on the role of personnel officer full-time. Mrs Ambler then went on holiday. In her absence Mr Ainley decided to offer Mrs Eastwood a full-time personnel officer's post at a higher salary. When Mrs Ambler returned on 4th September Mr Ainley told her of his offer to Mrs Eastwood. He assured Mrs Ambler that she would retain three of her roles in personnel, but said that Mrs Eastwood would no longer report to Mrs Ambler. Mrs Ambler was very upset. She went sick, suffering from stress. She did not return to work. She raised a grievance with a director of Cape's parent company over what had happened. This did not comply with the contractual grievance procedure. The dispute was not resolved, and Mrs Ambler resigned.
5. The Tribunal found two fundamental breaches of contract. One was that Mrs Ambler ceased to be responsible for Mrs Eastwood and the administrative assistant. The effect of the breach, the Tribunal said, was compounded by the abrupt and insensitive manner in which Mr Ainley informed Mrs Ambler of the change. The second was a cumulative one relating to Cape's conduct destroying the relationship of trust and confidence between it, as employer, and Mrs Ambler, as employee, Cape fundamentally changing Mrs Ambler's job, and this was compounded by Cape's handling of the grievance. That, the Tribunal found, contributed substantially to the loss of mutual trust. The Tribunal said that Mrs Ambler was entitled to resign without notice by reason of Cape's conduct. Cape did not act reasonably.
6. Cape appealed. In its Notice of Appeal, as I have said, 11 grounds were listed. The EAT allowed one to go to a full hearing, that is to say the ground set out in paragraph 6(11) of its Notice of Appeal: the failure by the Tribunal to determine and consider whether the alleged dismissal was unfair and to express reasons for any such determination. All the other grounds were dismissed by the EAT in a single sentence in a very short judgment, His Honour Judge Pugsley saying:

"We consider that the findings the tribunal made as to the breaches of contract were open to them and we regard the arguments as to perversity as an attempt to reargue issues of fact that the tribunal has already determined."

7. This appeal is brought with the permission of Pill LJ. Mrs Ambler's solicitors were notified of the hearing, but by letter to this court indicated that she did not wish to be heard on the appeal.
8. The test for allowing an appeal to go to a full hearing on a ground of appeal is that of raising a reasonably arguable point of law (see paragraph 14 of the Employment Appeal Tribunal Practice Direction).
9. Mr Oldham, appearing for Cape, submits that Cape should have been allowed to appeal some further grounds. In effect they are two grounds. I shall treat as a single ground those in paragraph 6(i), (ii) and (iii) of the Notice of Appeal to the EAT. This is headed "Change in responsibilities for staff":

"(i)having failed to determine that there was any change in the Respondent's job content, the tribunal could not in law determine, as it did, that the change in responsibilities for staff amounted to a fundamental breach of contract;

(ii)the tribunal failed to find any term of the contract of employment that was breached by the change in the Respondent's responsibilities for staff, so that there can have been no such breach;

(iii)there was in any event no evidence that the Respondent ceased to be responsible for the administrative assistant."

10. That is said to be one of the ways in which the Tribunal erred in law.
11. Mr Oldham argues that the Tribunal did not find that it was a term of the contract of Mrs Ambler that any person should report to her. He says that the fact that her job as personnel officer as a matter of fact had included responsibility for the administrative system and staff administrator did not entail that Cape was contractually required to provide her with those responsibilities, and accordingly the change in the reporting situation did not amount to a breach of contract. It is sufficient that I should say that to my mind this ground is reasonably arguable, and I respectfully disagree with the EAT's refusal to allow that to go to a full hearing.
12. The other ground was couched in the Notice of Appeal in the following terms:

"(c) handling of grievance

(vii)the finding that there was breach of the implied term of trust and confidence in the way in which the Respondent's grievance was handled was also perverse or based on a misdirection of law:-

(a)insofar as this criticism was based on the Appellant's objection to the manner in which the Respondent raised the grievance, such criticism (let alone a finding of fundamental breach of contract) was entirely misplaced when the tribunal itself found that the Respondent's action was itself in breach of the grievance procedure."

13. Mr Oldham submits that the gist of the Employment Tribunal's reasoning is that Cape should have operated a grievance procedure other than that which was in the contract, and that Cape has been found liable when it wished to proceed in accordance with the contract. He submits that that is the wrong approach to determining whether Cape had fundamentally breached Mrs Ambler's contract. Again it is sufficient to say that to my mind this ground too is reasonably arguable and should be allowed to go to a full hearing.
14. I would therefore allow the appeal and direct that Cape's appeal to the EAT proceed on the two further grounds indicated above in addition to the ground allowed by the EAT.
15. LADY JUSTICE ARDEN: I agree.
16. MR JUSTICE CRESSWELL: I also agree.
Order: Appeal allowed. No order as to costs.