United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR GEARING (Representative)


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing has been to determine whether there is an arguable point of law in an appeal which Miss Evans wishes to advance against a decision of an Industrial Tribunal held at London (South) on four days between 13th August and 18th September 1996. The Industrial Tribunal decision was sent to the parties in January 1997 in extended reasoned form, and concluded that the applicant was not constructively dismissed, and accordingly her claim for unfair dismissal itself was dismissed.

The underlying facts can be taken from the Industrial Tribunal's decision and I will summarise them only then and not go through each and every factual item.

The applicant was employed by the respondent, who is Deen City Farm, as a Community Farmer from 2nd August 1993 to 18th March 1996. The respondent is a voluntary organisation which operated a farm in an urban area as a facility which can be used by the public to obtain some experience of the countryside and of agriculture.

For a time during the absence of the farm manager, the applicant's partner, Mr Gearing who has represented her on this appeal, acted as the farm manager. It was obviously a hard working and stressful position for both of them. Farming demands a complete dedication to the job, particularly where animals, as here, are involved.

On 18th February 1995, one of the piglets, or it may have been the litter, became ill. For various reasons, it was Miss Evans' judgment, that in order to spare any further suffering on the part of the animals, it would be correct if she herself put the piglet down in accordance with what she believed to be correct procedures. Normally where is pig is to be put down a vet will be called, but in the extreme circumstances which she was presented with, it was her judgment that they should not await the attendance of the vet.

Putting animals down without the attendance of a vet was not sanctioned by the policy of the farm, which was partly funded by the London Borough of Merton. She took the view that that policy was inflexible and did not accommodate the emergency situation with which she was faced. She had the consent of a Mrs Gorden to do this, and it was Mrs Gorden who told her not to put any reference to it in the stock report; and in fact, in the stock report to the executive committee which was responsible for managing the farm, the piglet's death was recorded as being of natural causes.

That matter came to the attention of the executive committee some considerable time later. They decided, in the circumstances, to hold some kind of disciplinary process, whether it was a disciplinary hearing or disciplinary interview in the first instance, was a matter of debate and in dispute before the Industrial Tribunal. Not only, initially, were they going to talk about the incident involving the piglet, but there were some eight items in all in a letter which was eventually sent to her, which unsurprisingly, as the tribunal recorded, was totally shocking to the applicant, bearing in mind, as the tribunal accepted, that nobody had complained about her work or suitability for the job before that date.

Eventually a disciplinary hearing was fixed for 7th August 1995. At that hearing she was represented by a trades union official. There was debate amongst the committee as to what they should do, if anything. The committee was split, as the Industrial Tribunal heard, as to the sanction to be imposed in relation to the piglet incident, the other matters, apparently, not being proceeded with. One faction took the view that dismissal was warranted; as the tribunal observed, fortunately the other faction's view, namely that a warning should be given, prevailed. The warning was in fact a final warning which the tribunal eventually held to have been within the range of reasonable responses of an employer in the circumstances of the case.

She exercised her appeal against the warning and the appeal was heard on 28th September 1995. In October 1995, the disciplinary proceedings and their substance were published on the notice board and there was no apology to her for that having taken place. In October 1995, slightly later than that, a new farm manager replaced Mrs Gorden, and for a period of time she and Miss Evans settled down to running the farm. There was a dispute between them about working hours which the tribunal said was sorted out at a meeting.

On 3rd January 1996, the applicant came to work and the new farm manager, Ms Healy, who had been in post now for three months, asked her to come to her office to discuss a couple of matters with her. The first related to documentation which had not been kept up to date; and the second related to a suggestion or question as to whether the applicant had been undermining the manager's authority.

Some days later, on 19th January, the applicant sent a long letter of grievance setting out her many concerns at the way she had been treated, including what had happened at the disciplinary hearing which had taken place some months before, and what had followed from it. She also complained about the discussion which she had had with Ms Healy. The tribunal heard Ms Healy's explanation that the previous disciplinary matter was not something that she could deal with, and that her discussion with the applicant on 3rd January had been an informal discussion and was not in any shape or form a formal disciplinary enquiry. The tribunal appear to have accepted her evidence on that point.

On 21st February 1996, the applicant wrote a further letter expressing a desire to meet the committee to present her grievance. She was invited to a committee meeting on 13th March so that she could follow through the last stage of the grievance procedure. That date was not suitable; and then on 18th March the committee received a letter informing them that the applicant had resigned and that she would be suing for constructive dismissal.

Meanwhile, before that date, because of sickness absence and a concern about Miss Evans' health, Ms Healy, the farm manager, had invited the applicant to see the London Borough of Merton's doctor, but the applicant took the view, as the London Borough of Merton were not her employers it was an inappropriate request.

The tribunal unquestionably was critical of the way in which the committee had dealt with the disciplinary matter to which I have referred. They had found that there were breaches of the procedure.

They then had to apply their minds to the correct legal test in a case of constructive dismissal. They had their attention drawn to the seminal case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 331, and they had directed their attention to a case called Woods v WM Car Services Peterborough Ltd [1981] ICR 666. No exception, as it seems to us, can be taken to the way they have explicitly directed themselves as to the law. We are satisfied, accordingly, that the tribunal's general approach to the question as to whether this was a constructive dismissal was prima facie entirely correct.

The conclusions of the tribunal were that the applicant was not dismissed. They found that the conduct of the employers as a whole, judged reasonably and sensibly, was not such that the applicant could not be expected to put up with it. They say this:

"36. ... Despite irregularities in the way that disciplinary and appeal proceedings were conducted and a lack of sensitivity in dealing with the Applicant, the Applicant admitted that she had killed the piglet and that this was in breach of the Respondent's policy and procedures. The Respondent was therefore entitled to discipline the Applicant for breach of those procedures and to impose a sanction. Although the Tribunal may consider that the final sanction imposed, that of a final written warning, was on the harsh side, it was within the range of reasonable responses to the admitted conduct. The Applicant did not accept this verdict, but sought on a number of occasions to re-open it, despite the fact that the outcome was a reasonable decision.

37. The Tribunal found that the Applicant developed an obsession about what she perceived as unfairness ..."

The tribunal then made a comment about applicant's state of mind.

The tribunal found:

"37. ... that Miss Healy's initial and main concerns satisfied the demands of the funding authority and to bring the Farm back to an acceptable standard and fulfil all legal requirement. It found that her actions with regard to the change of rota and her preliminary enquiries into the completion of the stock movement book and the medicines book were proper and acceptable and actions intended to bring the farm up to an acceptable standard and to fulfil its legal obligations, even if the change of rota was done rather precipitously and without proper notice. ..."

They found that the employers were not doing any of this with the intention of harassing or victimising the applicant, as had been her belief. They continued:

"37. ... It was further satisfied that Miss Healy could do nothing about the workings of the Executive Committee and the disciplinary decision it had reached and that this was the reason why Miss Healy was unable to resolve the Applicant's grievance, not any wish to harass or victimise the Applicant."

They therefore found that:

"37. ... that there was no fundamental breach of the Applicant's contract entitling her to resign. The Tribunal therefore finds that the Applicant was not constructively dismissed and her application is dismissed."

There was an application to the Industrial Tribunal for a review of their decision which was refused.

On behalf of the appellant, it has been argued, first of all, that the way in which Miss Evans behaved in relation to the piglet was done with the best of motives and in accordance with the law. It was to avoid an animal on the farm from any unnecessary suffering and she had acted correctly. Therefore, he says, it was wrong for the Industrial Tribunal to have accepted that a final warning was within the range of reasonable responses.

It seems to us, with respect to that point, that it was not just the failure to follow the employer's procedures which had caused the employers concern, but also the fact that it had not been drawn to their attention. Whether that was, as she said, because the then farm manager had told her not to, was a matter for the Industrial Tribunal to consider.

The second ground of appeal that is raised, is that the failure to find a repudiatory breach was itself an error of law. He said that it was a question as to what constitutes a repudiatory breach.

We agree and disagree with that submission. It is partly a question of law and partly a question of fact. The judgment which the Industrial Tribunal had to make was first of all whether there were breaches of contract; secondly, whether those breaches of contract were serious or fundamental enough to justify the employee in walking off from her employment. They had directed themselves as to the correct legal test. They then found the facts, and in our judgment, their reasoning process which led them to the conclusion that there was no sufficiently serious breach to justify the employee walking off, was a decision which fell within the discretion of the tribunal; in the sense that, we will accord to the Industrial Tribunal which hears the evidence a wide margin of appreciation so that they are entitled to arrive at the conclusion which they did in this case. It seems to us that the reasoning process in paragraphs 36 and 37 of the decision are satisfactory and demonstrate that the Industrial Tribunal have asked themselves the right question.

We are unable here to re-hear the facts or to re-weigh them. It seems to us, in those circumstances, that there is no arguable point of law in relation to this appeal. It is a case where Miss Evans is unable to accept the decision of the Industrial Tribunal, but as it seems to us, that decision is one which they were entitled to arrive at, even if she disagrees with it.

The appeal must be dismissed.