United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1149_94_1610

Appeal No. EAT/1149/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16 October 1995

HIS HONOUR JUDGE J HULL QC

MRS M T PROSSER

PROFESSOR P D WICKENS OBE

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MR P HURLEY          APPELLANT

YARDLEY OF LONDON LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR A G BEAMES

(Personnel Consultant)

Estuary Personnel Consultants

Stronghold House

57/59 Elm Road

Leigh On Sea

Essex

SS9 1SP

For the Respondents MR K BRYANT

(of Counsel)

Messrs Stephens & Bolton

1 The Billings

Walnut Tree Close

Guildford

Surrey

GU1 4YD


 


JUDGE J HULL QC: This is an unusual case. It is an appeal to us from the Industrial Tribunal, sitting on 14 July and 29 September 1994 at London North, under the chairmanship of Mrs Don with two industrial members. They promulgated their decision on 18 October 1994 and they dismissed the complaint which had been made to them by Mr Hurley on 3 June 1993 that he had been unfairly dismissed.

That was the essence of it and by his complaint he asked for reinstatement by the Respondents, his employers, Yardley of London Limited. Mr Hurley, is a gentleman who is now aged 39 and he is a professional manufacturing accountant. He worked for Yardleys from 18 March 1991 until 15 April 1993 when he was told by a letter from his employers that his conduct was such that he was taken to have resigned.

He was responsible to a man called Mr Dougan, an Operations Controller, as he was known, who had joined the firm in May 1992, nearly a year before the unhappy events which led to the departure of Mr Hurley. On 6 April 1993 he was given a verbal warning for what seems to us, at any rate, to be a relatively insignificant matter and it may very well be that he was perfectly justified in feeling that he did not deserve to be warned about it; it was in connection with a letter that he had written. I am not going to go into that; the Industrial Tribunal did not.

We can only hear appeals on points of law and therefore I will refer to the Industrial Tribunal's decision. They said:

"3 The facts are that Mr B Dougan, the Applicant's immediate line manager, issued the Applicant with a verbal warning in relation to a letter and a memorandum that he had sent. ... This verbal warning was issued by Mr Dougan on the instructions of Mr S Reddington, the manufacturing director. The Applicant was due to play an important part in a financial presentation on 7 April 1994 [that was the very next day]. This presentation was of vital importance to the company. The Applicant took great exception to the verbal warning given by Mr Dougan. He informed Mr Dougan that he would not return to work until the verbal warning was removed. The verbal warning was not removed and the Applicant never returned to work for the company after 6 April 1993.

4 On 8 April 1993, ... the Applicant was sent a letter by taxi saying:-

`I am sorry that you chose not to attend work yesterday following the issue of a verbal warning to you on 6 April. Before you left, you stated that you would not be returning to work until the warning had been removed.

As you know there are procedures to use if you wish to appeal against the warning, however, you must return to work if you wish to pursue this option.'

The Applicant's evidence was that he was in a state of shock and considered that he could not return to work until the warning had been removed."

He wrote, two days later, to Mr F Osborne, the financial controller. He said:-

"I have not resigned and if the warning is removed I will be glad to return to work."

He goes on to state:-

"Jim, I trust you will be fair in deciding what the course of action should be. For my part I would be willing to come and see you at Camberley if that will help. You or Sally can ring me at home to make arrangements."

Paragraph 5 continues:

"This was the Easter Bank Holiday weekend. Mr Osborne was on leave in Ireland. He did not return to his place of work in Camberley until 15 April 1993. The Applicant and Mr Dougan were based at the company's factory in Basildon."

Then he said he received two letters dated 14 and 15 April and received them both on 15 April 1993. These were delivered to him by taxi.

"The letter of 14 April 1993 stated:-

`As mentioned at our meeting, you have the right of appeal against this warning, providing it is exercised under the company's laid down procedures within a fourteen day period of April 6th, 1993. In such a case the appeal will be held by John Osborne.

This warning is the first stage in the company's disciplinary procedure as I outlined to you and it will remain on your file for six months from date of issue'.

The letter of 15 April from Mr Dougan states:-

`Your disagreement with a verbal warning you were issued with on 6 April, 1993 should have been voiced through the disciplinary appeals procedure as explained by me at the time.

Your unexplained absence from work since 6th April is in breach of your Contract of Employment and I consider you have now had ample opportunity to contact me following my letter of the 8th April.

The company accepts that you are in breach of your Contract of Employment and considers your action as a resignation from work.

You will be paid up to and including the 6th April, 1993, the final day you attended work, any outstanding monies in respect of holiday entitlement will be forwarded along with your P45 in due course.

Your company car must be returned ... . '"

They also refer to a letter of the same date, 15 April from the Applicant to Mr Dougan, stating that he had been waiting for an appointment to see Mr Osborne. Mr Osborne replied on 19 April confirming that the company considered that the Applicant had resigned from his employment.

Then they come to their findings. Of course, the findings were for them; they had considered all the evidence that was put before them by the Applicant and the Respondents.

"9. The Tribunal, having considered the oral and documentary evidence, cannot find as a fact that the Applicant was constructively dismissed pursuant to section 55(2)(c) of the Employment Protection (Consolidation) Act 1978 hereafter referred to as the Act. It is not a fundamental breach of the terms and conditions of a contract of employment to issue an employee with a verbal warning. The Applicant appears to have taken undue offence at being given this verbal warning. It is not for the Tribunal to consider whether or not the verbal warning was justified."

Mr Beames, on behalf of the Appellant, criticises that, and says that it was his client's case that this verbal warning was the culmination of a programme, a series of acts, designed to persecute him and force him out. If that was his case, indeed, then he appears to have said very little about it and, of course, it is not for the Industrial Tribunal, except as part of a case of unfair dismissal (if that is what it really amounts to) to enquire into the justice of the verbal warning, how can they? It is a matter for the company and the internal discipline of the company. If an employee is dissatisfied he almost invariably has a right to appeal against the verbal warning and that was precisely what this Applicant had failed to do.

So the Industrial Tribunal were quite justified in saying that it was not for them to consider whether the verbal warning was justified. As we say, it may have appeared to them, as it certainly appears to us, that it was a relatively small matter, but relatively small matters, however they may appear to outsiders, may be important to the company and Mr Dougan had thought that the verbal warning was justified and had issued it.

Then they go on:

"10. The Tribunal then considered whether or not there had been a dismissal. By the letter dated 15 April ... the Applicant was informed that he would be paid up to and including 6 April 1993, and he was forwarded any outstanding monies owed to him and his P45. He was informed that his company car must be returned to the Basildon site immediately ... . It is quite clear that this is a letter of dismissal ... ."

We can see no possible grounds for criticising that finding. It was a finding in favour of the Applicant. He had complained of unfair dismissal and they found that he was, indeed, dismissed. So they had to go on to see why; of course, it was for the employer to show why he had been dismissed, and it was for the Tribunal to enquire further whether they had acted reasonably in dismissing him.

"11. The Tribunal then considered whether the Applicant was dismissed by reason of redundancy and whether, thereby, he was entitled to a redundancy payment. ..."

They held that he was not.

"12 The Tribunal then considered whether the Applicant had been fairly or unfairly dismissed. The Tribunal considered that the Applicant had been totally intransigent in his attitude towards the company. The Applicant made it clear in his correspondence with the Respondent that he would not return to work until the verbal warning against him had been lifted. The Applicant was informed that the verbal warning could not be lifted until he returned to work and appealed against the warning."

As my colleague (if I may respectfully say so) very well put it, "it was a sort of one-man strike". The employee was saying to the employer "I find your behaviour unacceptable. I am not going to return to work until the warning is withdrawn". So there it was.

They say:

"13. The Tribunal finds that it was reasonable for the Respondent to expect the Applicant to have returned to work before they could hear his appeal regarding the dismissal. The facts obviously had to be gone into and the Applicant could not unilaterally expect the verbal warning to have been withdrawn. It is regrettable that the letter, dated 14 April, giving the Applicant time to appeal until 20 April should have been sent on the advice of personnel and the personnel department is to be criticised for this. However, the Tribunal doubts whether the Applicant, in any event, would have returned to work by 20 April and appealed against the decision to issue him with a warning. All along he made it absolutely clear that he would not return to work until the warning had been lifted."

We again agree with the Industrial Tribunal that that was unfortunate. It was an important matter for them to consider. They should have considered and did consider, first of all, the ordinary procedures for dismissal; those are shown to us. Of course, they include provision for enquiries; for a hearing and, of course, for warnings and final warnings and so forth. All those matters were important for them.

The Industrial Tribunal considered those matters.

"14 The Tribunal finds, as fact on the evidence, that the Applicant was dismissed by reason of his gross misconduct in failing to report to work pursuant to section 57(2)(b) of the Act.

15 The Tribunal finds, as a fact on the evidence, that it was within the range of reasonable responses for this Respondent to have dismissed this Applicant for the reason as alleged. The Applicant failed to report to work and to attend a particularly important meeting. The Applicant thereafter failed to return to work. It was not suitable to suspend the Applicant from his employment because the Applicant was not at work in any event. All the Applicant needed to do was to return to work and no doubt he would have retained his position. It is difficult to know what the Respondent could have done other than to have dismissed the Applicant.

16 The Applicant appears to have behaved unwisely, foolishly and irresponsibly. He is the architect of his own misfortune and this application fails."

The appeal to us is put, very shortly, by Mr Beames, in the only way which really is available to him. He says the employers did not go through the proper procedures; they did not write to the Applicant saying "we regard your absence as a matter of gross misconduct"; they did not then hold a hearing giving him the opportunity to attend and say to him "what have you got to say in defence of your behaviour". They did not then take time to consider and reach a rational conclusion to dismiss him. That is the way Mr Beames put it (and I apologise if I am not doing full justice to it) but that is the substance of it. And he refers us to Polkey, the well known case of Polkey v A E Dayton Services Ltd and he says "this was not a case in which the employers could reasonably conclude that it was proper to dispense with the ordinary preliminaries to a dismissal, even if he were guilty of gross misconduct. They should have held the proper enquiry and given him the opportunity to explain himself".

The Industrial Tribunal found, in spite of those omissions, the employers had acted reasonably and properly and therefore the question for us is, "did they so far depart from reason in saying that, and so far from the authorities, that it can truthfully be said that the decision was perverse or that it shows, on its face, an error of law?" And having considered that, all three of us, as carefully as we could, in the light of Mr Beames's submissions, it appears to us that the Appellant's case will simply not hold water.

The fact is, as my colleague puts it, he was on a one-man strike. He had said, intransigently as the Tribunal finds, unwisely and foolishly and irresponsibly, "I will not return to work until this warning is withdrawn". He thereby set up his battle line. How could an enquiry be held, with any prospect of justice and fairness, if he was refusing to return to work?

What was there to enquire into? Of course, if he had been absent without any explanation, then the matter would have been utterly different and the employers would have had to ask themselves, "Is he ill? Is there something which is preventing him? Is it the illness of a wife or a child or something of that sort which is preventing him from returning to work? Has he perhaps suffered some event which has momentarily upset him dreadfully and led him to behave in the most extraordinary way?"

But no, it was none of those things, nothing like that at all. Having been warned, which on the face of it the employers were entitled to do, he had simply taken himself off and said, "I will not return". One could not have a plainer repudiation of a contract.

If he was going to react like that to a warning, what prospect was there that if the ordinary steps had been taken to enquire into the matter, that that would have yielded any reasonable result? What prospect was there that if he was given an ultimatum by the employers that he must return to work forthwith, he would have complied with it?

Quite plainly, the Industrial Tribunal were entitled to conclude, as a question of fact, that all that was entirely beside the point, and that the position was that he was the author of his misfortune and that the employers had acted reasonably and properly in treating his repudiation of his contract, which was what it was; his gross misconduct; as terminating the contract. In those circumstances, the Tribunal were entitled to dismiss the application.

Most people would say, although this is not a matter for us, that "it would have been an insult to commonsense if they had not", and in saying that we bear in mind that the employers had certainly not behaved impeccably here; they had, as the Industrial Tribunal said, sent two letters which were inconsistent, very close to each other. It may be that the Tribunal thought that that was because of the unprecedented circumstances; we do not know.

The Industrial Tribunal felt that the dismissal was fair under the terms of the Act, in all the very exceptional circumstances, without any further enquiries or warnings or anything of that sort.

We can find no error of law in the findings of the Industrial Tribunal, and decisions on facts are, of course, a matter for them, not for us. The appeal will be dismissed.