United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 457_95_2703

Appeal No. EAT/457/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 27th March 1996

HIS HONOUR JUDGE N BUTTER Q.C.

MR J D DALY

MR T C THOMAS CBE

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MR J VICAT          APPELLANT

BURTON RETAIL PLC          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR D BROWN

(of Counsel)

USDAW

188 Wilmslow Road

Fallowfield

Manchester

M14 6LJ

For the Respondents MR TIMOTHY DUTTON

(of Counsel)

Mrs C Farmiloe

The Legal Department

Burton Retail Plc

214 Oxford Street

London

W1P 3AE


 


JUDGE BUTTER Q.C.: In these proceedings Mr Vicat appeals against a decision of an Industrial Tribunal held at Bristol on 5th December 1994 and 20th January 1995. The extended reasons for the decision were sent out on 4th April 1995. The unanimous decision of that tribunal was:

"that the applicant was not constructively dismissed."

The tribunal commenced its reasons by referring to this as:

"a very sad and unfortunate case."

In the last sentence of their decision they express regret that they have reached the conclusion that the application failed.

Their sympathy was no doubt based in part at least upon the fact that the applicant had been employed by Burtons for a period of some 42 years, until 30th June 1994. During his years he had risen to the position of Deputy Manager at their Swindon branch.

The facts can be stated quite shortly. In March 1993 the applicant applied for early retirement and voluntary redundancy. He decided however in circumstances which are referred to in the decision to remain in the employment of Burtons. But in the summer of 1993 he was not a happy man. There were a number of incidents. One was in the summer of 1993 which is referred to in paragraph 5 of the decision. There were later incidents which are again referred by the tribunal in their decision. We have considered all these today because they are obviously of importance.

In 1994 the applicant believed that there had been a conspiracy by a number of people to force him out of his employment. He made those allegations and the matter was discussed at a meeting. A curious, indeed a bizarre fact emerged, namely that there had been an appraisal which in truth was a forgery effected by a manager, Mr Rowland. The tribunal dealt with that aspect in paragraphs 10 and 11 of their decision, but conclude in paragraph 12 that there had been no conspiracy between the three named people. They reached the conclusion that there had been a breakdown of communications and a lack of an understanding of the personnel role of the management to find out in the case of a long-standing and loyal employee, what he was thinking and to ensure that the information which was known to management about the employees was passed from one manager to another.

The main part of their decision appears in paragraph 13 and 14. It is appropriate that I should read paragraph 13 in full:

"13 The other matter which we have considered is whether the overall conduct of the respondents towards the applicant amounts to a fundamental breach of the respondents' duty of trust and confidence towards their employees. We understand the applicant's resentment about what happened in July 1993, but it was a long time before the end of his employment and it involved a manager who had moved on to another area. We understand his resentment at the rather crass circulars and the letter to him, but we cannot see that these matters amount to a fundamental breach of his contract. It may be that in taking early retirement he took the course that was in his best interests, but what we have to find is not whether he was reasonable to leave but whether the respondents acted in fundamental breach of their contract in forcing him to leave."

In paragraph 14 they refer to the "shortcomings" in the respondent's procedure for picking up staff problems. But in the end they conclude that the matters:

"do not seem to us to amount to a constructive dismissal."

It should be observed that in the first paragraph of their decision, they referred to the law dealing specifically with constructive dismissal within Section 55(2)(c) of the 1978 Act, and went on to say:

"It is therefore the employer's conduct which we must look at to decide whether taken as a whole, it amounts to a fundamental breach of the contract of employment, and/or to expulsive conduct giving rise to intimation that they no longer intend to be bound by the terms of that contract."

Today, on behalf of the appellant, it is argued that there had been a series of incidents which were cumulative and that the tribunal failed to deal with the so-called "last straw argument". It is said that they were wrong to put to one side the events which occurred in July 1993. It is said that they erred in using the words "we cannot see that these matters amounted to a fundamental breach of the contract". It is suggested that they were there deciding as a matter of law that the incidents could not so amount to a fundamental breach of contract. We do not, with respect, read the words of the tribunal in that way. It is said that the tribunal have provided insufficient reasons for the conclusion which they reached.

It seems to us, however, that the tribunal have set out the main facts. They have dealt with the main incidents. In the end we are satisfied in our own minds that they have applied the law correctly. We are unable to say that there had been any error of law or to say that a reasonable tribunal could not have reached the conclusion which they did. We bear in mind all the arguments presented to us on behalf of the appellant, but at the end we are unanimous in our view that the appeal fails and must be dismissed.