United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M SHRIVES (Representative) Messrs Hammond Suddards Solicitors 2 Park Lane Leeds LS3 1ES


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether Mr Price has an arguable point of law in an appeal which he wishes to maintain against a decision of an Industrial Tribunal held at Leeds on 16th May 1997. By their decision, the Industrial Tribunal dismissed Mr Price's application alleging unfair dismissal.

The background facts can be very shortly stated. The respondent company, the former employers, Horsell Graphic Industries Ltd, are described as a large company involved in the manufacture of lithographic plates. At the date of the termination of his contract, Mr Price was in a senior position of shift manager. He had a problem with his health and with his private life between July and November 1995. He contacted his manager, Mr Lyndon Thomas, who was the operations manager, in order that he could discuss his problems with him. They had a discussion in which Mr Price disclosed that he had a drinking problem, a matrimonial problem and an ill-health problem, both mental and physical.

Mr Price was obviously concerned that that information should not be further communicated than was strictly speaking necessary. The conversation between them took place on that basis. Mr Price returned to work and about a year later there was rumour and gossip going around in the workplace about Mr Price, and about the reasons for his absence in the past. He had been seen drinking in local establishments by the staff, and he had also been seen to fraternise with a person who worked in the human resources department, which caused some speculation and gossip about the state of Mr Price's marriage.

He took the view, eventually, that his position in the company was being undermined and was becoming intolerable as a result of the gossip that was going on. He made arrangements at the end of November 1996 to see Mr Thomas and to invoke the grievance procedure because he was of the view that the source for this gossip must have been a breach by one of the managers of the terms of the confidentiality which was attached to the discussions which he had had with Mr Thomas.

Mr Thomas having been told about the gossip that was going on, took a low key approach to the investigation of the complaint, because it was his view that to blunder into urgent action would be to exacerbate an already difficult problem.

Technically, it would appear, that when a grievance has been raised it should be resolved or dealt with within a period of two working days. That time scale would have involved calling in to work those who were not rostered for work at that time, and it was Mr Thomas' perception that it would be unhelpful to Mr Price to call them into work so as to comply with the two day time limit.

He did carry out investigations of the various people to see whether there had been a breach of the confidentiality understanding. The person who was most suspected denied that he had been responsible. It was obvious to Mr Thomas that there were other possibilities. Firstly, that it might have just been pure speculation and supposition. Secondly, there were other potential sources from which the information could have been derived, for example, personal friends of Mr Price, people seeing him drunk and associating with the other woman at work.

On 4th December 1996, not believing that the investigation or grievance was being pursued properly, Mr Price left a letter on Mr Thomas' table saying that he was tendering his resignation with immediate effect.

They arranged to meet and met on 9th December, by which time the investigations had been completed. The purpose of that meeting was to enable Mr Thomas to tell him the result of what he had discovered and to tell him that if he was unhappy with the conclusion he could pursue an appeal to a senior director. At that meeting they obviously discussed the letter of resignation which had come in. It was Mr Price's attitude at that time, he having mulled over the position, that Mr Thomas, himself, might have been responsible for the breach and he took against Mr Thomas in that way, and challenged the appropriateness of him having anything to do with the grievance which he had already undertaken. Not surprisingly, in our view, that approach, as the tribunal found, puzzled Mr Thomas. He expressed his view that the grievance had been made to him, he had investigated the matter. It was appropriate for him to tell Mr Price the result of the investigations, and if Mr Price was unhappy with that, then he could pursue an appeal to a senior director, and it was really quite absurd to suggest that they should go back to square one, particularly as no doubt Mr Price had been complaining about the length of time it had taken to investigate his grievance in the first place.

Mr Price was asked whether he was going to work out his notice. The company were keen to retain his services at least for a short period of time. He said, in effect, as we understand the findings of fact, that he would work out his notice if Mr Thomas did not continue with the grievance but somebody else did. Mr Thomas was not prepared to take that view. The meeting concluded by Mr Price confirming that he did not intend to return to work. As a consequence of that, the tribunal found:

"1(q) ... in our view, Mr Thomas saw the whole exercise as being futile and the meeting came to an end."

On the same day, Mr Thomas wrote to Mr Price dealing with the grievance and setting out what he would have said. He offered him an appeal, indicating that the company understood the position to be that Mr Price was no longer an employee, effectively accepting the resignation that had been tendered, and the staff were notified that Mr Price resigned.

After Mr Price had served his notice of resignation on 4th December, there had been a conversation between the parties, and he in fact came into work on 5th. Despite that, the tribunal indicated that clearly and unequivocally he had resigned with immediate effect on 4th December. Mr Shrives in a conspicuously able argument has said to us that that finding cannot be right as a matter of law and that the true analysis is that the contract could not have come to an end before 9th December. In those circumstances, the Industrial Tribunal had disabled themselves from considering whether Mr Thomas' position at the meeting on 9th December itself constituted a repudiatory breach of the contract of employment, a fundamental breach so serious as entitling the employee to walk out.

It seems to us, with respect, that that argument, although potentially attractive, is not a fair representation of the way that the case has been dealt with by the Industrial Tribunal, or the way that they were invited to deal with it. Because if one reads the decision, it seems to us very clear that they have identified three potential serious breaches of contract. It was not suggested, so far as this decision reads, that it was a serious breach of contract for Mr Thomas to have taken the position he did on 9th December. We have to say that if such a suggestion had been made, we would have confidently expected that the tribunal would have dismissed it as being absurd. It seems to us that therefore there is no merit in the first submission which is made to us that the tribunal's error of law, as it is submitted it may well be, that the effective date of termination was 4th December, had any effect on this decision.

The second ground of appeal is based upon one sentence in paragraph 6 of the decision where the tribunal asked themselves the question how does it come about that these rumours were going around the work place? Was it as a result of the managers, or any of them, breaking the confidentiality obligation on them as the tribunal saw it about Mr Price's health and social position. They examined the matter and they said this:

"6. ... Accepting as we do the difficulty that Mr Price has in proving that matter, we acknowledge that it would be open to us to draw an inference from the facts that inevitably a breach of confidence came about as a result of an act of management. In these circumstances, however, we do not feel that such an inference can properly be drawn. That inference could only be drawn if there were no other reasonable explanation. ... There are a host of possible explanations which do not lie at the door of the respondent company. In those circumstances we cannot be satisfied that Mr Price can demonstrate that the respondents have been responsible for that particular breach of the implied term of trust and confidence."

What Mr Shrive says is that the sentence "that inference could only drawn if there were no other reasonable explanation" is not a proper approach to the drawing of inferences. He says that there may be a number of reasonable explanations and yet it would still be appropriate to draw an inference.

Again, with respect to him, it seems to us that he is concentrating over much on one sentence of an otherwise well constructed paragraph dealing with the issue. As we read what the tribunal are saying, it is that in the circumstances of this particular case, bearing in mind the denials which management had made of the allegation which had been made by Mr Price, that it would not be right to infer against them, having seen and heard them as witnesses, that they had, so to speak, wrongly denied their involvement in this affair. The tribunal were saying they were only prepared to do so, that is to draw an inference against them, if there was no other sensible reasonable explanation. That would have been an approach which would have been quite permissible and we are prepared to assume that that is their approach when one looks at the whole of the paragraph and the way in which it comes to be written. It was right for them, in our judgment, to have approached the drawing of inferences with caution, bearing in mind the infinite number of possibilities or host of possible explanations, as the tribunal put it, of the reasons why there was gossip in the work place about the way that Mr Price had conducted his life in 1995. Accordingly, we dismiss this appeal.