United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1180_95_2301

Appeal No. EAT/1180/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23rd January 1996

HIS HONOUR JUDGE P CLARK

MS S R CORBY

MR R H PHIPPS

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JOHN SHEPHERD MOTORS          APPELLANTS

MR M C COOPER          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR BERNARD CORDELL

(Solicitor)

16a Dalcham Mews

London

NW3 5DB


 


JUDGE CLARK: In this matter the Bedford Industrial Tribunal found, following a five day hearing, that the employee, Mr Cooper had been constructively dismissed by his former employer, John Shepherd Motors Ltd, and that in the absence of any reason for dismissal being advanced by the employer that dismissal was unfair.

Against that decision, extended reasons for which are dated 13th September 1995, the employer now appeals. This is a preliminary hearing held to determine whether or not the appeal discloses any arguable point of law.

The Respondent was employed in the Appellant's garage at Biggleswade from 2nd July 1988 until he left the employment on 14th May 1994. The proprietor of the garage, trading under the style of the Appellant, was Mr John Shepherd.

The tribunal saw and heard both Mr Shepherd and Mr Cooper in the witness chair. Reading the tribunal's reasons it is clear to us that it formed the view that relations between the two men were in the early years perfectly amicable, but deteriorated in the latter part of the employment. Disputes arose over the extent to which the Respondent was required to carry out paint spraying duties; there was indeed a dispute as to whether he was required to do such work. The tribunal found that he was.

It went on to find that there were frequent rows between the two men. Mr Shepherd, they found, had a short temper, and Mr Cooper was not above starting or provoking arguments.

On 9th May 1994 Mr Shepherd cut down the Respondent's overtime hours. He had previously been paid six hours overtime each week, whether or not it was worked. That amounted to a unilateral variation of the contract, so the tribunal found.

On 14th May 1994, five days later, an altercation took place between the two men. Mr Cooper left claiming that Mr Shepherd had assaulted him by punching him on the nose and slapping his face. The tribunal was not prepared to find that a physical assault had in fact taken place.

On the complaint of constructive unfair dismissal the tribunal expressed its conclusions in paragraph 22 thus:

"22. The Applicant complains that as a result of the treatment meted out to him by Mr Shepherd, he was entitled to treat himself as dismissed. In other words, he claims to have been constructively dismissed. In order for there to be a constructive dismissal, an employee has to show a fundamental breach of contract by his employer; a breach going to the very root of the contract which entitles the employee to treat himself as discharged. We have looked at the cumulative actions of the Respondents complained of and we are satisfied that Mr Shepherd's actions in unilaterally varying the Applicant's pay, coupled with his conscious decision to avoid contact with the Applicant and the final altercation on the 14 May, were sufficiently fundamental to entitle the Applicant to treat himself as dismissed. The Applicant accepted the fundamental breach and in the circumstances we are satisfied that there was a dismissal, within the meaning of that term as set out in Section 55(2)(c) Employment Protection (Consolidation) Act 1978. Since the Respondents have not put forward a potentially fair reason for dismissal; we are unable to find other than that the Applicant's dismissal was unfair."

Thereafter the tribunal expressed its reservation about evidence given on both sides, and indicated that at the remedies hearing it wished to hear argument as to contributory conduct on the part of the Respondent - its provisional view being that both parties were equally to blame.

In support of this appeal Mr Cordell advances the following arguments. First, that the grounds relied upon by the Industrial Tribunal in paragraph 22 of the reasons for deciding that the Respondent had been constructively dismissed were not those relied on by the Respondent himself. There are three grounds referred to in paragraph 22. First, the unilateral variation in pay. We are told that that was not raised in evidence-in-chief by the Respondent, but plainly it was relied on in the statement attached to his form IT1 and we are told that it emerged during the course of cross-examination of him by Mr Cordell. Secondly, the lack of contact between Mr Shepherd and Mr Cooper. It is fair to say that the tribunal's reasoning for including this aspect in its final determination is obscure. Finally, the altercation on 14th May 1994. Whilst the Industrial Tribunal did not find that Mr Shepherd physically assaulted the Respondent, it is clear to us that it was that incident which was relied on by the Respondent as the final straw, as appears from his letter of resignation. Looking at the tribunal's reasons as a whole, we cannot accept Mr Cordell's submission that none of the matters relied on by the tribunal were relied on by the Respondent as forming part and parcel of the behaviour which he alleged amounted to a fundamental breach of his contract of employment.

Secondly, Mr Cordell submits that reliance by the Industrial Tribunal on the absence of contact between the parties was perverse. We have earlier indicated that whilst we find that the tribunal's reasoning on this matter was obscure, we do not regard it as a central finding, nor indeed a necessary finding when considering the overall conclusion reached by the tribunal.

Finally, it is said that the Industrial Tribunal failed to make necessary findings in relation to the cause of the final altercation on 14th May 1994. In our judgment, it is implicit in the tribunal's findings, particularly at paragraphs 9, 19 and 24, that Mr Shepherd contributed equally to that incident, and we cannot say that there is an absence of necessary findings, taking the decision in its entirety.

We remind ourselves, as did Mr Cordell, that the issue was the employer in fundamental breach of contract, is essentially one of fact. It is not for this appeal tribunal to interfere in the absence of a perverse finding by the Industrial, or one wholly unsupported by the evidence. Further, a finding that the employer had unilaterally reduced the employees contractual remuneration is capable, in itself, of amounting to a repudiatory breach of employment contract. That was one of the findings in this case, complained of, as I indicated earlier in the form IT1 and something which emerged during the cross-examination of the Respondent. Here, there was no question of delay in accepting the breach as found such as to amount to a waiver on the part of the Respondent.

In all these circumstances we are unable to detect any error of law in the tribunal's reasoning such as to give rise to an arguable point before a full hearing of this appeal tribunal. Therefore, this appeal must be dismissed.