United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 495_93_2007

Appeal No. EAT/495/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20 July 1994

Before

HIS HONOUR JUDGE J HULL QC

MR J H GALBRAITH CB

MRS T MARSLAND

---

WALSALL RUBBER CO LTD          APPELLANT

MRS V GINIFER          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellant MR KEVIN O'DONOVAN

(of Counsel)

Messrs. George Green & Co

195 High Street

Cradley Heath

Warley

West Midlands B64 5HW

For the Respondents MR J BACON

(of Counsel)

Messrs. Higgs & Sons

Inhedge House

31 Wolverhampton Street

Dudley

West Midland DY1 1EY


 


JUDGE HULL QC: This is a case which has given us some concern and difficulty and in view of the course which we propose to take we will say rather less than we otherwise would. The point which we have heard argued is whether there was any unfairness at the hearing, to put it very shortly. What happened was this. Mrs Ginifer began work on 2 April 1986 with the respondents, the Walsall Rubber Co Ltd. In 1987 she was appointed branch manager. There was a change in an important part of the management team in the Autumn of 1991, when a Mr Singh was appointed retail sales manager and Mr Blowfield was appointed managing director.

There was an idea which appealed to Mr Singh and, indeed, I think to everybody in this story, that the company's business should be carried on in rather a different way, that the product should be taken in a mobile shop, so to speak, in a van, to individual customers. They apparently had a long wheel-base van and the suggestion was that Mrs Ginifer should drive the van and act, in effect, as manager of that mobile shop.

Although Mrs Ginifer thought that it was, indeed, a good idea, she was reluctant to do it herself. She is a lady in her early fifties. She was not accustomed to it. Indeed, she was not the only one to think that she might be in some danger, in charge of money and so on, as a sole woman in the van and she was worried about driving the van, which did not have power steering.

According to Mrs Ginifer, she was put under pressure to agree to drive the van and eventually agreed under protest. She did drive the van for a short while but soon she became ill. It proved impossible to fit the van with power steering. She did not like the situation and, unhappily, she and her employers parted company. The date on which they parted was the 26 May.

She gave details of all the matters which I have mentioned and she said that she had simply been dismissed - dismissed expressly. She had been told that she would be dismissed and she was dismissed. The employers, for their part, denied that there was any dismissal. They said that she had resigned and that was how matters stood on the application form to the Industrial Tribunal (to whom she complained of unfair dismissal) and the answer which was put in.

On the first day of the hearing, which was on 4 March 1993, at Birmingham, before Mr Clough and, of course, his two industrial members sitting with him, the employers indicated that they would wish, if it was found that, indeed, there had been a dismissal, to say that it was a fair and justified dismissal. The Chairman took the view that that was not a point which was open to them. It is not mentioned in the answer, he said, and I do not think that you can go into those matters. The issues are: did she resign or was she sacked?

The Tribunal devoted two days, that day and then again a month later on 5 April, to the elucidation of those issues and then, when the evidence had all been called, the Chairman, according to his recollection - he has written twice about this - said to the solicitors who were then appearing for the parties "we are considering the possibility here of constructive dismissal". According to the recollection of the Chairman, he was roundly told by the solicitor advocates that that was, so to speak, not on. On the evidence, the position was, said each solicitor, that she was dismissed or that she resigned. One has to bear in mind, of course, that the Industrial Tribunal is not a court of law in the ordinary sense. It is meant to proceed informally and in a summary way and the Tribunal itself is charged with the duty of inquiry and with its lay members constitutes to an industrial jury. But nonetheless, justice required the Chairman to make that remark.

The advocates have apparently no recollection of that remark being made and the Chairman very frankly says that this was his first case as Chairman. He is, we are told, an experienced barrister but this was his first case as the Chairman of a Tribunal. No doubt he had many times appeared in front of industrial tribunals. Needless to say we accept what the Chairman has told us but it is also clear that the advocates, perhaps rashly or perhaps through allowing their minds not to be sufficiently affected by what was said by the Chairman, did not either of them address the Tribunal on the question of constructive dismissal.

The Tribunal obviously considered the matter carefully and they decided that it was a constructive dismissal. They looked into all the facts, as they were entitled to, and they concluded that in making, in effect, threats, barely veiled threats, as they said, to the applicant, that she would be dismissed or might well be dismissed if she did not take up driving this van, the employers were forcing her to do something which she could not be made to do and which she accepted under protest; it was to be put on a par with the resign-or-be-sacked cases. It was something that might be called duress, she was compelled against her better judgment to accept this, and found it too much for her. It was a job she ought not to have been asked to take and when she resigned, in those circumstances, she was constructively dismissed.

Those are the findings of the Tribunal and when the Tribunal returned with its decision, we are told - and again, there is no dispute about this - the advocates, having addressed no submissions to the Tribunal about the question of constructive dismissal, were surprised. "You may be surprised", said the Chairman and, indeed, the advocates have told us on affidavit that they were surprised.

The employers' advocate feels a particular sense of grievance about this. At the start of the inquiry he was told that it was not open to him to say in the alternative that the dismissal was fair so, of course, when the Industrial Tribunal returned with their decision, they had reached a decision not merely on the dismissal but on its unfairness. They said that it was an unfair dismissal. He had had no chance to take part in any debate on that. They had had no chance, said the employers, to adduce any evidence concerned directly with that because it was out of bounds as far as he was concerned. So here was a situation in which the employers' advocate had been told, and accepted, that the issues were simply was she dismissed expressly or did she resign and in which, by a process of preferring certain evidence, then on the other side preferring certain other evidence, the Tribunal had arrived at a decision in which they said "neither of you is right, both of you are wrong, she was dismissed, but it was a constructive dismissal and it was an unfair dismissal".

We do think that it might have been helpful if the learned Chairman had thought it right to say, You see what this means? What may well be the position here ... And then spelt out the possible findings; it might have been that in those circumstances the advocates would have taken a different course and would have addressed them about those facts in more detail.

But, however that may be, the reality of the situation is that the advocates, having been told at the outset that the only question was, was she expressly dismissed or did she resign, found that issues had necessarily been investigated by the Tribunal in arriving at their decision which they had had no opportunity of dealing with, on the basis that those issues would, of course, have been entirely irrelevant. We think there is substance in that. The fact is that it was not until after all the evidence was over that the possibility was first mooted that constructive dismissal might well be the view which the Tribunal took. The details of that possibility were not explored. In the nature of things, it might well be that further examination and cross-examination might have been thought necessary by the advocates if they had grasped the details of that and, above all, this Tribunal reached a decision on fairness or unfairness, when that had not been a matter which was in issue during the hearing.

We think that the Tribunal was perfectly entitled to conclude that there was a constructive dismissal. It might be that other chairmen would have been far more forceful in the circumstances and might have said, This is the evidence which appears to direct us to that. Do you wish to say anything about that? The advocates might have said, or one of them might have said, "Well, I would have tested that evidence if I had thought that it was going to be decisive". It might well be that one of the advocates would have said "I want to adduce extra arguments". But the fact is that the Chairman had said to the advocates before they addressed him that he and his colleagues were considering the question of constructive dismissal, were minded to consider it, and that should have been sufficient. But he did not go on to say, "And, of course, we shall decide then whether it is fair or unfair in the light of our findings and so you ought not to ignore that." He did not say that and we take the view that there is a real sense of unfairness by the employers' advocate and we see how it arises. We have had from Mr Bacon an analytical argument suggesting that once this had been said all that was necessary had been said. That, in a sense, is true but the over-riding requirement of fairness is one which had to be tested in each case by reference to all the circumstances and there was a factor here which was not present in the case of Laurie v Holloway [1994] ICR 33, to which we were referred. Certain issues had been marked out-of-bounds at the outset by this Tribunal, saying that the only issues were dismissal or resignation. Those issues then apparently became highly material and would have to be considered on the question of the fairness or unfairness of the dismissal which the Tribunal found had occurred.

We think that this matter should be remitted to the same Tribunal so that they can invite submissions from the advocates on the basis that they have concluded (as they were entitled to conclude) that this was a constructive dismissal. These submissions will be on the question of fairness and any other questions which arise subsequent to that, which they have not decided, so that if a party seeks to persuade the Tribunal that he should be allowed to re-open certain matters, address certain arguments or recall a witness or adduce further evidence, the Tribunal will decide on that in all the circumstances. We hold that the Tribunal were entitled to find, and this finding will not be upset, that there was a constructive dismissal but they will have to consider all questions which arise from that, not only of course the question of whether it was fair or unfair but also any questions of contributory fault, which may again depend on evidence. We direct that this matter be remitted to the same Tribunal to continue its hearing.

The second part of this appeal can be put more shortly than the first. Mr O'Donovan says that there is here a great inconsistency in the way in which the Tribunal dealt with the constructive dismissal, as they called it, in their findings. He says that they do not put it at all happily, to which a possible retort which we ventured is this: that if the parties had accepted through their advocates the opportunity which was given to them by the learned Chairman and his colleagues to address them on the question of constructive dismissal, no doubt a more elegant way of putting the matter might well have emerged. The fact is that on the findings we felt obliged to make, the Tribunal was not addressed on the question of constructive dismissal and reached its conclusion unassisted by the two solicitors who were before it.

Mr O'Donovan says, first of all, look at paragraph 13, where the Tribunal say:

"It is agreed that on or about 27 February the applicant accepted the appointment on mobile sales. We accept her evidence that she did so under protest and after pressure which included a barely veiled threat referred to above that failure to do so would lead to termination of her employment."

Well, there it is, says Mr O'Donovan, it is as plain as a pike staff. She was accepting the position. She might do so under protest but once she accepted the position the contract was varied and there was no question of saying that she was at liberty later to treat it as a breach which she could accept as terminating the contract.

There is an unfortunate confusion of language here which lawyers and other people, of course, sometimes fall into. The question was whether what the employers were insisting upon was a breach which went to the root of the contract. If it were, then the employee was entitled either to affirm the contract as insisted on, as altered by the employer unilaterally, or to accept the repudiation as terminating the contract; and she had a reasonable time (on the authorities) to consider her position there.

It is, we think, a mistake to say that paragraph 13 should be read as a finding (wholly inconsistent with the rest of the decision) that in fact Mrs Ginifer elected to affirm this contract as varied and was thereafter not able, as a matter of law, to treat it as a resignation matter. That seems to us to be an error in reading the language of this paragraph. In fact, what she did was to agree, under protest, to go on to the van. As the Tribunal found, the situation was completely impossible, not only did she become unwell but they found that she was unable to control the van. If that was indeed the position (and why should the Tribunal not reach such a finding?) she was a menace on the road through no fault of her own and she was clearly entitled to say: I will not do this. She was off work for a substantial period, unwell. She only worked on the van for something like a couple of weeks and then she approached the managing director with her letter of resignation and Mr O'Donovan takes a point, which involves a certain amount of analysis, concerning the resignation. He says (paragraph 20) on 20 May she tried to hand in her resignation. It was refused. Then followed a discussion and Mr Blowfield agreed, reasonably enough, to look into the matter and see whether power steering could be fitted but on 26 May what the Tribunal record is:

"We do not think the parties were ad idem. Mr Blowfield says he told the applicant that it was impracticable to fit power steering to the van and that he could offer no other position to the applicant and he asked her to give him the resignation letter which she did."

They later say, in paragraph 23:

If the applicant was dismissed as she claimed then it was because she was refusing to carry out her duties as varied under protest by the respondents. If she resigned as claimed by the respondents and we as we find she in fact did then it was because she was refusing to accept the unilateral variation of the terms of her employment and the refusal by the respondents to allow her to revert to her original duties."

We find that there is a certain confusion of thought here. The fact was that it was still, in the view of this Tribunal, open to this lady, in spite of the lapse of time, to accept this breach of contract by the employers as something which she would elect to treat as terminating the contract. She tried on the 20th; reasonably enough, when Mr Blowfield said "I will see if I can do anything for you" she held her hand. Later on, nothing could be done, so six days later he asks her again, perfectly courteously and reasonably, to hand over that resignation letter and she does. She is thereby, it seems to us, quite plainly electing to end the contract of employment. It may be that the Industrial Tribunal could, with the assistance of the advocates, if they had had it, have put all this much more elegantly but if you read this decision as a whole, it appears to us to be absolutely commonsensical.

In our view, the Industrial Tribunal were entitled to conclude that she was constructively dismissed and there is no flaw in the reasoning which we have set out. What they must now do, as we have already said, is to re-open the matter, or at any rate to consider re-opening the matter, so that applications can be made to them if necessary to adduce further arguments or evidence or to recall a witness.

We think this Tribunal was absolutely entitled to reach the conclusion of constructive dismissal which they did.