United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR J COPPEL (of Counsel) Messrs Brooke North Solicitors Crown House Great George Street Leeds LS1 3BR


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is an arguable point of law raised in a Notice of Appeal, supported by a clear and well-presented skeleton argument, and further supported by the oral argument of Mr Coppel to whom we are grateful.

The appellants are Travelworld (Northern) Ltd, who are in the travel agency business and are growing rapidly. The employee was a Mrs Newby, who was the applicant before an Industrial Tribunal complaining that she had been unfairly constructively dismissed by Travelworld. The question of remedy has been adjourned for a further hearing date, and may, for all we know, have taken place. But we are concerned with the tribunal's decision that there was an unfair dismissal. That decision is contained in writing and was sent to the parties on 13th February 1997, following a hearing on 6th January 1997 at Nottingham.

We wish to acknowledge the care with which the Industrial Tribunal have dealt with this case. As Mr Coppel very properly pointed out, the decision is full, it recites all the matters that one would expect to find in a decision of this sort, and if we might respectfully say so, the tribunal Chairman is to be congratulated on a thorough decision.

The essence of the tribunal's decision centred on the acquisition by Travelworld of the Travel Shop where Mrs Newby was working. It was very much a one man band shop before it was acquired. Mrs Newby was in control of it and no doubt she had her own ways of dealing with enquiries from the general public, and she had her own connections with her own customers built up over a long period of time whilst she had been working there.

Within a day or two of the acquisition by Travelworld, she had difficulties in settling in with her new employers, who, by virtue of the Transfer of Undertakings Regulations had become her employer on acquisition.

Not surprisingly, Travelworld have their own way of doing business, and when they acquire a new business, they want immediately to introduce their own processing arrangements and documentation and matters relating to logos and that sort of thing.

It was during the course of the introduction of the new techniques that the conflict arose between Mrs Newby and a Mrs Sprigg, and there were a variety of incidents which took place on Wednesday, 29th May which left Mrs Newby feeling distinctly uncomfortable. On the following morning, that is Thursday, 30th May, Mrs Newby told Mrs Sprigg that she was not happy with Mrs Sprigg's attitude towards her, and there were various other matters which occurred on that day, and when Mrs Newby went home that evening she could not decide what she wanted to do or what she should do. She felt that nothing had changed since she had tried to clear the air with Mrs Sprigg, and she had formed the impression that Mrs Sprigg wanted to take over the branch.

On Friday, 31st May it was her day off, and around 4 o'clock she had a telephone conversation with the principal of Travelworld, Mr Fisher, who had explained that he operated an open door policy and would be happy to talk to anyone whenever they wanted. She telephoned him, she asked if Mrs Sprigg could be replaced by another Travelworld manager, or possibly by the area manager himself. However, the tribunal found that Mr Fisher did not respond to this request saying that Mrs Sprigg was more local and he did not offer to investigate the matter or otherwise take any steps to investigate her complaint, although he did say that he did not want her to leave.

The tribunal found this:

"4.20 Although the exact words used are not clear, it is accepted by both parties that, at the end of the conversation, the applicant resigned with immediate effect. ..."

The tribunal in paragraphs 5 and 6 set out the parties arguments on the evidence which had been presented to them. In paragraph 11 to 13 they set out their decision, they say this:

"11. The contents of the telephone conversation between the applicant Mr Fisher on 31 May are probably the most contentious part of this case. We have two entirely conflicting versions of the conversation and we have to decide which we accept.

12. After careful consideration of the evidence and having seen and listened to both the applicant and Mr Fisher, we prefer the applicant's evidence in this respect.

13. We accept that the applicant had not decided to resign before the telephone call, we accept that she had made it clear that she was not prepared to work with Mrs Sprigg, we accept that Mr Fisher declined to resolve the problem, and we accept that the applicant then effectively resigned. As we see it, the subsequent correspondence in June does not contradict this interpretation of the telephone conversation."

They then concluded that the failure to respond to the applicant's complaint constituted a fundamental breach of the contract and this being the case, they concluded that she had been constructively dismissed.

The appellant wishes to raise three arguments. In the first place, and they all hinge on the same assertion as we see it, it is the contention on behalf of Travelworld, that Mrs Newby who was acting on her behalf, gave evidence which was consistent with the findings made by the Industrial Tribunal, but in her cross-examination of one of the employer's witnesses, said in the course of a question, that she had not decided to resign until lunchtime on 31st May. In other words, before the telephone conversation had taken place. If was therefore the employer's case and had been at the Industrial Tribunal, that any failure to deal with her complaint by Mr Fisher was not causative of her decision to resign and that therefore there had been no repudiatory breach of contract.

On that basis, Mr Coppel says that the tribunal did not take into account this give away remark in the course of cross-examination which was inconsistent with the evidence which Mrs Newby had given. He says that they ought to have taken it into account. He secondly says, that if they did take it into account, they ought to have made it plain in their decision that they had taken it into account. And thirdly, he says that bearing in mind that there was coherent and consistent evidence given by the employers, and there was self-contradictory evidence and a statement by the applicant on the other, it was perverse of the Industrial Tribunal to have preferred her evidence to the employer's evidence.

We do not consider any of these points to be reasonably arguable. In the first place, it is clear from Mr Coppel's skeleton argument that he accepts that the employers did indeed point out to the Industrial Tribunal an apparent inconsistency between the evidence given by Mrs Newby and what she had let slip during the course of cross-examination. Since the tribunal decided that this was the critical part of the evidence, (namely, that is what happened during the telephone conversation) we think that it would be utterly surprising if the tribunal had not got it well in mind when they gave their decision. Although it is true to say that they preferred the applicant's evidence, there is no indication that they did not, in weighing the credibility of that evidence, take into account what she had said, if she had said it, during the course of cross-examination. They may well have taken the view that there are various degrees of mind that a person may have about resignation, namely that she had decided to resign unless Mr Fisher had dealt with her problems in a sensible way, which would in laymen's terms, lead to the fact that she had reached a decision to resign as at lunchtime, albeit in legal terms, it was not a decision which had any effect until after the condition had been fulfilled. If that is the context in which they understood it, we are not in the slightest bit surprised that they do not mention it, because there would not, on that view, be any inconsistency. They might have taken the view that when she referred to lunchtime, she did not mean lunchtime at 1 o'clock. It may be that they thought that she had just simply made an error. But it does seem to us that it is quite unarguable to suggest that when they had had this point directed to their attention, they had not taken it into account when they arrived at their conclusion on this critical and central and fundamental point, as Mr Coppel put it.

As to their obligation to have said how they had taken into account, or how they viewed it, we think that that is going too far. Industrial Tribunals are not bound to deal with every point which is raised before them. Although this is a full decision, the criticism is that it should have been fuller still. We think that that is a misplaced criticism. We think that it is an excellently full decision, and tells the parties quite well why it is that they have won or lost as the case might be. The employers lost because Mr Fisher's evidence about this conversation was not accepted. Mrs Newby's version of it was, and they were prepared to accept that it was as a result of that conversation that Mrs Newby decided finally to resign.

As to perversity. It seems to us that whether there is any substance in this point at all, it is entirely dependent upon how the tribunal viewed the throw away, casual or deliberate remark which she made during the course of cross-examination. That was entirely a matter for them to assess. It seems to us that it is simply not right to say that it is arguable that their decision to prefer Mrs Newby's evidence to that of Mr Fisher was peverse. There is every reason to believe they would have taken into account all the relevant circumstances which affected her credibility, just as they would have taken all the relevant circumstances into account in assessing his credibility. Accordingly, we are satisfied that it is not a reasonably arguable point of law, and we dismiss the appeal.