United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 919_94_0711

Appeal No. EAT/919/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 7 November 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MISS C HOLROYD

MRS P TURNER OBE

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MR J FRASER          APPELLANT

EASTON MASONRY CO          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR C HALEY

(Trainee Solicitor)

Hudson Freeman Berg

94 Gloucester Place

London W1H 3DA


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal to decide whether or not the Notice of Appeal raises an arguable question of law deserving of a full hearing. On the appeal Mr Haley has appeared on behalf of Mr Fraser, the Appellant. He appeals against the unanimous decision of the Tribunal held at London (South) on 8 June 1994.

The Tribunal unanimously decided that Mr Fraser had not been unfairly dismissed by his former employers, Easton Masonry Co. The full reasons for the decision were notified to the parties on 1 August. Mr Fraser, who had been represented by a union representative at the hearing, was dissatisfied with the decision and appealed by Notice of Appeal settled by a firm of solicitors now instructed by him dated 9 September 1994.

The background to the proceedings is that Mr Fraser was employed as a stone fixer's mate for a period of nearly 10 years by Easton Masonry. He resigned on 2 March 1994 by a letter to Mr Geoff Smith, the managing director, in which he stated this:

"Dear Geoff,

Due to the actions of your company as listed below

(A) Reducing my rates from £275.00 to £156.16

(B) Placing me in a job where there is no work to be done

(C) Transferring me to a job that is not within travelling distance for myself

which amounts to a fundamental breach of my contract with yourself.

These new terms and conditions which you are attempting to impose upon me are totally unacceptable to myself and I am not prepared to continue working for you under these circumstances.

I will be seeking legal advice regarding my constructive dismissal."

He made the complaint of constructive dismissal in an Originating Application presented on 23 March 1994. He set out in considerable detail in that letter the incidents over the previous 12 months, culminating in the most recent incident in which he was forced to work extra hours or take a pay cut. He said he was not and refused to work extra hours. He has never refused in the past, but he was insistent that he should still be paid. He referred to his contract of employment and to correspondence in which he had been given a notice of redundancy. He set out a detailed diary of events in February and early March 1994. The account referred to the letter quoted, after which he resigned from the Company.

The claim was contested by the Company whose defence was that he had not been dismissed, so he could not claim unfair dismissal. The Notice of Appearance dated 22 April 1994 referred to the resignation letter and to the fact that earlier Mr Fraser had been placed on notice of redundancy which had then been rescinded. The Company said that they did not accept constructive dismissal; the Company operated under working rule arrangements on basic pay and hours. There had been no breach of contract by the Company which would justify the claim of constructive dismissal.

The issue before the Industrial Tribunal was whether there had been a fundamental breach of contract by the Company, such as to entitle Mr Fraser to claim he had been constructively dismissed.

The Tribunal set out the issues in paragraph 3:

"The issues in this case are:

Whether in the circumstances the Applicant was entitled to terminate his contract of employment with the Respondent, and in particular

Whether there was a fundamental breach by the Respondent of the Applicant's contract of employment".

The Tribunal set out the facts, with particular reference to the complaints of Mr Fraser about lack of work to keep him occupied, and reducing the amount of his wages. The Tribunal recorded the submissions on each side. It was recorded that his representative submitted that there was so great a reduction in his wages from £375 in 1992 to £275 in 1993 to £156 in 1994 that there was a fundamental breach by the employer; that there should have been more consultation and more understanding by the Company through this phase and faced with such an inadequate wage and such a reduction Mr Fraser had little option in early March 1994 but to terminate the employment.

The submission on behalf of the Company by Mr Smith was that there was evidence as to the wage structure and working hours; that he was aware that Mr Fraser was working on a reduced wage, but that was the situation when contract jobs were few. Mr Smith submitted that, if the end of the employment of Mr Fraser had not come about so fast, he would probably still be working for the Company. Mr Smith's submission was that he had had no opportunity to react to a letter written by Mr Fraser on 28 February which was followed soon by the letter of resignation. We have seen the letter of resignation already quoted from. We have also seen the letter of 28 February in which Mr Fraser set out his complaints about the previous 12 months' conditions of work and his treatment at work by a Mr Feltham. He complained that he had been humiliated, embarrassed by having to work on unreasonable and unacceptable terms. He referred to the fact that he had approached Mr Feltham and suggested that there be a meeting with Mr Smith to discuss the situation on issues concerned, in the hope that the problems could be resolved. He complained that Mr Feltham had refused and informed him that Mr Smith would not want to speak to him. In those circumstances Mr Fraser felt he was left with no choice other than to invoke the procedure.

Having considered those submissions and applying the provisions of section 55 (2)(c) of the Employment Protection (Consolidation) Act 1978 relating to constructive dismissal, the Tribunal concluded that there had not been any fundamental breach by the employer; that the events which caused wages to be reduced over that period did not amount to a breach. It was their view: (paragraph 13)

"that in all the circumstances the Respondent was essentially [operating] in accordance with the contractual terms that had been established between the Respondent and the Applicant. The Applicant may have had a grievance to take up with the management of the Respondent regarding the nature of the work to which he was put, but in all the circumstances and on the evidence we have heard we conclude that at the time of 2 March 1994 the situation was not such as to entitle him to take the action he did and successfully to claim constructive dismissal. It is our opinion that where he [Mr Fraser] was confronted with the situation where there was such a difference in the understanding regarding working hours and wage structure, it would have been prudent for him to ensure that he obtained full clarification before taking the final step of resigning. It is our view that this course of action was open to him, without him thereby prejudicing any complaint he might genuinely have had."

The Notice of Appeal and the Skeleton Argument submitted by Mr Haley identify three points which we discussed with Mr Haley in his oral submissions. The three points that Mr Haley wishes to make on the appeal are, first, that there was an error of law by the Tribunal in not making sufficient findings of fact as to the terms of the contract of employment before assessing whether there had been a fundamental breach or not such as to justify termination by Mr Fraser. This general point was divided into two sub-points. The first is that that error had been committed by the Tribunal in relation to the term of job mobility. He argued that there was evidence before the Tribunal about Mr Fraser's difficulties in getting to the work location in Thurrock. He pointed to the National Working Rules relating to moving from one job to another and in particular Rule 14 relating to daily travelling. The printed rule has this heading:

"There are different travel rules applying in London and Liverpool, details of which can be obtained from the committees. See address inside cover".

Mr Haley's point was that the Tribunal reached their decision that there was no fundamental breach of contract without having before them the travel rules which applied in London. Without those rules, he asks, how were they in a position to come to a conclusion whether or not there was a breach of contract by the Company such as to entitle Mr Fraser to complain of unfair constructive dismissal?

The Tribunal do not refer to the rules. Mr Haley tells us that they were not put before the Tribunal and he is not in a position to put them to us today to see whether or not there is anything in this point. The position we have reached is this, that the point Mr Haley is making is not a question of law at all; what he is saying is that the Tribunal could not have reached a correct conclusion on whether or not, as a matter of fact, there was a breach of contract when it did not have before it a document relevant to the issue of breach. The absence of the document was not, on the arguments we have heard, a result of any error of law on the part of the Tribunal. If there was an error it must have been on the part of those involved in the conduct of the case in failing to provide the Tribunal with documents relevant to their determination of the case. We cannot see how that can be an error of law by the Tribunal in its decision. It is the duty of all those who are involved in these disputes, whether as parties or representatives, to make sure that the Tribunal has all the documents relevant to the issues of fact it is asked to decide. The Tribunal is not to be criticised here for failing to take into account, in reaching a decision, a document or oral evidence which has not been advanced by either of the parties.

We would point out that, if there are difficulties in a party producing a document, it is open to make an application under the Rules to the Tribunal, at any time, including during the course of the hearing, for an Order that the document be produced by the person who has it. On the first point we find no error of law.

The second point is that the Tribunal erred in law by not directing itself to the implied contractual term of mutual trust and confidence which exists between employers and employees and to the fact that there was evidence before the Tribunal on which the Company could be found to have been in fundamental breach of that provision. On that aspect of the case Mr Haley referred to the evidence concerning the type of work which Mr Fraser was instructed to do, the location of the work and the wages applicable to it.

We are unable to identify a question of law. Whether or not there is a breach of an implied duty of mutual trust and confidence is a question of fact. There were facts before the Tribunal about the difficulties of Mr Fraser at work as to work to be done, location of the work and wages. The details are set out in the Notice of Application presented in March 1994 of daily accounts of the difficulties he was working under. There is no error of law on the part of the Tribunal in looking at the evidence it had from Mr Fraser and Mr Smith and deciding whether or not there was a fundamental breach. The fact that they do not refer to the term of mutual trust and confidence is not in our view an error of law on the part of the Tribunal. It is a matter of looking at the case put to the Tribunal. It appears from the Tribunal's decision that the emphasis by Mr Fraser's representative was in his main submission, almost exclusively concentrating on the reduction in his wages from 1992 through to 1994. The Tribunal came to a decision about that. They thought there was not a fundamental breach. The fact that the case might have been more effectively put as breach of a more general obligation of mutual trust and confidence does not create an error of law. It is for the parties to make the most effective submissions they can to the Tribunal on the basis of the evidence before the Tribunal and it is not an error of law on the part of the Tribunal that it has failed to address a particular breach which has not been put to the Tribunal in the way in which it is put to the Appeal Tribunal. We find no error of law on that part of the decision.

The third and final point is a small one. The complaint is that the Tribunal erred in law in its conclusion that it would have been prudent for Mr Fraser to have obtained full clarification of his working hours, conditions and wage structure before resigning. The error of law was in apparently not taking account of evidence that Mr Fraser had been denied access to the grievance procedure.

Mr Haley supported that point by referring to the passage in the letter of 28 February setting out the conversation with Mr Feltham about speaking to Mr Smith. This is, in our view, an attempt to re-open on an appeal a question of fact. The Tribunal heard evidence from Mr Fraser and Mr Smith; heard submissions from each side and came to the conclusion that one of the reasons why constructive dismissal could not be claimed was that Mr Fraser ought to have waited to obtain clarification of his working hours and wage structure before taking the final step of resigning, in other words, waiting a bit longer than 2 March to see what the response was to his letter to Mr Smith on 28 February.

The Tribunal made findings of fact on this question. It was obviously a matter canvassed before them. They recorded in paragraph 6 of their decision that Mr Smith did not see either the letter of 28 February or 2 March until about 4 March. Both parties accepted there was a termination on 2 March. So it appears that Mr Fraser had resigned before Mr Smith had had an opportunity to reply to the points in the letter. In those circumstances there was evidence before the Tribunal to support their conclusion that the prudent step for Mr Fraser to have taken was to wait for clarification and not resigning within a few days of sending his letter of 28 February. It is not a question of law, it is a question of asking us to look again at the facts in the light of (perhaps) a more forceful submission than was made to the Industrial Tribunal.

Having considered those three points we are not able to find in any of them a question of law that is reasonably arguable at a full hearing of the Tribunal. For those reasons the appeal will be dismissed today.