United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1123_94_2903

Appeal No. EAT/1123/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29 March 1995

THE HONOURABLE MR JUSTICE BUCKLEY

MRS T MARSLAND

MRS M E SUNDERLAND JP

---

MS S FOX          APPELLANT

SECONDSBEST LTD          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellant MR B FOX

(Representative)


 


MR JUSTICE BUCKLEY: Ms Sarah Fox made a complaint to an Industrial Tribunal at Bristol in October 1994, that she had been constructively dismissed and that the circumstances amounted to unfair dismissal. The Tribunal dismissed her claim. We note that the Respondents, although they put in an appearance, did not attend the hearing. Ms Fox did and gave her evidence. Notwithstanding that, the claim was dismissed. There is now a Notice of Appeal and Mr Fox has appeared on Ms Fox's behalf before us, to persuade us that there is something in this appeal and that it should go forward to a full hearing.

In a nutshell, what happened was that the Respondent employers, it seems, had some reason to cause them to take a closer interest in how Ms Fox was doing her job as a Manager. The Tribunal found that there was a meeting at the end of December with the Managing Director, Jane Ellis. On 4 January, Jane Ellis, the Managing Director, wrote a letter to the Applicant. The Tribunal find and we quote:

..."It is clear from the terms of this letter that the respondents were concerned about the manner in which she had been fulfilling these duties and decided that they had to monitor her more closely and to require her to account in more detail her movements."...

The Applicant, as found by the Tribunal, clearly took the view or felt, that this indicated a lack of trust in her. She felt that that undermined the relationship between her and her employer and gave in her notice on 17 January. Mrs Ellis the Managing Director, refused to accept it and said (these are simply the reasons by the Tribunal) she would resolve the problems. The Applicant accepted before the Tribunal, that she had tried to do so. On 20 January the Applicant felt she could continue no longer and again tendered her resignation and did not attend work after the 27 January.

Mr Fox has sought to persuade us that the Tribunal went wrong in law. His argument is that there is an implied term in Contracts of Employment, that so far as is relevant to this case, the employer will not without reasonable or proper cause, conduct itself in a manner calculated, or likely to destroy, or seriously damage the relationship of confidence and trust, between employer and employee. That we accept. What follows from that as a matter of law, is that one has to look at the employer's conduct, the conduct that is complained of, to see whether it does amount to unreasonable conduct, which has that affect. We are bound by the findings of fact by the Tribunal. We cannot go outside those findings. The only relevant finding here is that following the meeting in December, when the parties obviously discussed what was going wrong or what the employer felt might be going wrong, is the letter of 4 January. We are quite unable to see how that letter can amount to the unreasonable damaging or undermining of the implied term of trust; it is a letter which is no more, nor less than the Tribunal found. It is an attempt by the employer to monitor the employee's mode of working. It is a letter, which in the circumstances, we cannot criticise. We certainly cannot take a different view of it from that taken by the Tribunal.

We have listened to all that Mr Fox has had to say. He has endeavoured to persuade us that in the remaining paragraphs the Tribunal went wrong in law; that it was not a mis-conception of law on his part, as the Tribunal held, but rather on their own part. Mr Fox put it that they were wrongly in law looking for two breaches of contract, when only one was necessary. We cannot accept that. It seems clear to us from the findings, that the Tribunal were absolutely right in law. It was simply a question of whether the letter of 4 January, in the context of this case, amounted to a repudiation of the Contract of Employment and it clearly did not. That is the finding the Tribunal came to.

We cannot, in short, see any point of law that arises in this matter or that there is any prospect of success on appeal. We cannot see any arguable basis for suggesting that the Tribunal went wrong. This appeal must be dismissed.