United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 614_95_2012

Appeal No. EAT/614/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20 December 1995

HIS HONOUR JUDGE P CLARK

MS S R CORBY

MRS R A VICKERS

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MR K DAWSON          APPELLANT

DESIGNER CRAFT UPHOLSTERY LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR T KEMPSTER

(of Counsel)

Messrs John Davies & Co

Solicitors

63 Great George Street

Leeds

LS1 3BB

For the Respondents MR T HOWARD

(of Counsel)

Messrs Irwin Mitchell

Aire House

Swinegate

Leeds

LS1 4AG


 


JUDGE CLARK: This is an appeal by the employee, Mr Kenneth Dawson against a unanimous decision of the Leeds Industrial Tribunal (Chairman

Mr P.A. Morris) sitting on 6 April 1995 dismissing his complaint of unfair dismissal on the grounds that he was not dismissed by his former employers, the Respondents.

The Appellant had many years experience in the trade and joined the Respondent as an upholstery cutter on 4 June 1990. He walked out of the employment on, we think, 24 August 1994, in circumstances where, he alleged, he was entitled to do so by reason of the employer's repudiatory breach of contract. He brought a claim for constructive unfair dismissal before the Tribunal.

The background leading up to the events of the final day of employment are set out in the Tribunal's extended reasons dated 2 May 1995.

For about 18 months the employer had experienced problems with mistakes in the Appellant's work. Warnings, and indeed a final written warning, had been given to him. However, experienced cutters were hard to come by and the employer persevered.

On the last day of employment the Appellant had made an error in cutting material which resulted in that material being wasted. His managers took him before the Production Director, Mr Lockett. Mr Lockett suggested that a way forward to prevent Mr Dawson making mistakes might be to take the money that it cost the company, when he made a mistake, out of his wages, at least on that occasion.

Mr Dawson was by now highly emotional and said that he was not going to pay a penny and that he would leave. Mr Lockett tried to dissuade him, without success and the Appellant walked out of the room.

Before finally leaving the factory he was seen again by Mr Lockett. At this stage Mr Dawson was leaving the building. Mr Lockett told him that if he did walk out he would lose his holiday pay and that the cost of his most recent mistake would be deducted from his pay. Based on the Appellant's own evidence the Tribunal found that this did not cause the Appellant to leave the employment, it had been his understanding of what Mr Lockett had said about stopping his wages at the earlier interview.

In the following week the Appellant returned for his pay. The cost of the wasted material, £81.55, had been stopped. The employer subsequently accepted that this was an unlawful deduction and agreed to pay it.

The Tribunal accepted the employer's evidence as to the material conversation. They found that Mr Dawson misunderstood what Mr Lockett was saying about the possibility of stopping his wages. In legal terms there was no breach of contract by the employer, actual or anticipatory.

Before considering the way in which the appeal is put we remind ourselves that our jurisdiction is limited to correcting errors of law. In particular, it is now well-established that the question, did the facts as found by the Tribunal constitute a breach of contract by the employer, is one of mixed law and fact. We can only interfere if it is shown that it is perverse. It is not sufficient that we would have, ourselves, have reached a different

conclusion sitting as an Industrial Tribunal - see Woods v W M Car Services [1981] ICR 666. Mr Kempster advances two broad grounds in support of this appeal. First he says that the Tribunal misdirected itself in law in that it failed to show, in its reasons, that it had properly considered whether or not the employer was in anticipatory breach of contract. Secondly, he contends that the decision was perverse.

As to the first point, in paragraph 4 of the reasons the Industrial Tribunal refers to Section 55(2)(c) of the Employment Protection (Consolidation) Act 1978 and the Court of Appeal decision in Western Excavating (EEC) Ltd v Sharp [1978] ICR 221. It summarises the ratio of that case in this way; the Tribunal has to ask itself whether the Respondent employer breached the employment contract fundamentally. It does not there spell out the distinction between actual and anticipatory breach. However, in paragraph 5 of the reasons the Tribunal concludes in terms that there was no breach of contract anticipatory or otherwise. In our judgment it follows that the Industrial Tribunal had in mind the possibility of an anticipatory breach. Further it reached that conclusion on the basis of its finding of fact that it preferred the employer's evidence as to what was said at the crucial meeting to that of the employee.

It was the employer's version (see paragraph 4(e) of the reasons) that deducting the cost of wasted material from Mr Dawson's wages "might be" a way forward; Mr Dawson's evidence (recorded in paragraph 4(f)) was that such a deduction was going to be made. That distinction, between a possibility and a certainty was critical to the Tribunal's conclusion that no anticipatory breach of contract had been made out by the Appellant. We are satisfied that the Tribunal has sufficiently set out its reasoning to explain its ultimate conclusion.

As to the perversity argument, we remind ourselves that we can only interfere with a Tribunal's decision if it is one to which no reasonable Tribunal could come. On this Tribunal's finding of fact, mentioned above, we cannot say that its conclusion that there was no breach of contract here was perverse.

It follows that there are no grounds upon which we can properly interfere with the Tribunal's decision. The appeal must be dismissed.