United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR R SMITH (Representative)
For the Respondent	MS I OMAMBALA (of Counsel) UNISON Legal Department 1 Mabledon Place London WC1H 9AJ


 


MR JUSTICE LINDSAY: We have before us by way of a full hearing the appeal of Relaxion Group Plc in the matter Mr J.R. Bennett against Relaxion Group Plc. Mr Bennett had been the Applicant below. He was successful below and it is Relaxion Group Plc that appeals to us.

There had been a hearing spread over two days, 17 September and 29 November 1996, that led to the decision of Mr I.T. Soulsby, Chairman, Mrs D.M. Hackforth and Mr B. Wareham as Members. The decision was a majority decision and was that the Applicant was unfairly dismissed.

Mr Bennett's IT1 Originating Application had been dated 30 March 1996 and it complained that he had been constructively dismissed (if I may use that term) on 5 February 1996. He had been employed by Relaxion Group, the Respondent below, and its predecessors since 1981 and latterly he was employed as Assistant Manager of the Respondent's Salisbury Swimming Pool.

Mr Bennett complained in general terms and in particular terms as well and, so far as concerned the particular terms, it was that in five particular ways the employer had brought about a situation in which the employer was in breach of the implied term not without reasonable cause to damage or destroy the relationship of trust and confidence between the employer, Relaxion, and Mr Bennett as employee. The particular five ways in which the complaint was framed were specified in the Extended Reasons of the Industrial Tribunal and it said this:

"The applicant's complaints arise from the following five issues:-

(a) cleaning of the swimming pool

(b) attendance at managers meetings on his day off

(c) itemised pay statements

(d) staff rosters

(e) management rosters.

And that was, in a sense, a particularised breakdown of a rather more general complaint which was described as follows:

"(i) After the respondents took over the management of the swimming pool they immediately introduced certain changes some of which could be expected to improve the service to the public and some of which could be expected to reduce expenditure. Their management style was clearly more dynamic or aggressive than that which had been adopted by the local authority. In particular the applicant felt that the behaviour of the operations manager, Mr Russell Cavanagh, was unreasonable and that during the period April 1985 to February 1996 Mr Cavanagh acted in a way that put the applicant under an unreasonable level of stress making it inevitable that he would resign."

Each of those five particularised complaints was then dealt with separately and, without our now referring to each of them, some points, perhaps, need to be made as one goes through them. So far as concerned the cleaning, Mr Bennett, it was pointed out, had not complained to the Respondents at any time about the level of cleaning duties after August 1995. As to attendance at management meetings, the Industrial Tribunal held that the Respondents' evidence was that they had never intended the Applicant or anyone else to attend such meetings without being paid, that there was no evidence that any of the senior management in the respondent Company was aware that the Applicant was not being paid for attendance at management meetings and that when such meetings had been introduced the Applicant had questioned the appropriateness of holding them on Wednesdays, at a time when the pool was open to the public, but, apart from those initial reservations so expressed, he had not raised any objection over the months that followed.

So far as concerned itemised pay statements, the Industrial Tribunal held that from about September 1995 onwards the Managers were given details of the total hours worked by all staff so that from that time on the Applicant did have written details of the hours he was recorded as having worked, thereby enabling him to check whether his gross pay was correctly calculated. So far as concerns the staff rostering they held this:

"Regarding staff roster, the applicant was given the duty of compiling roster for the lifeguards. This task had previously been undertaken by the senior assistant manager Mr Rickard, that the respondents thought it appropriate to give this duty to the applicant. He had expressed reservations about taking on the duty, as he knew it would be difficult, but he had not refused to do so."

It seems it was not a breach of contract for Mr Bennett to have been required to do the rostering, nor unreasonable to expect him to do it.

As a separate subject, management rostering was such that it became a complaint of his that Mr Bennett was no longer able to attend to give swimming lessons in the way that he earlier had been doing. On that, the Tribunal held that the Applicant's principal complaint was that he was unable to continue undertaking swimming teaching on Fridays. For the previous 12 years the rosters for the Managers had been done in a way that enabled the Applicant to undertake teaching on a Friday, for which he received a higher rate of pay. But they went on say that the Applicant's lost gross pay of £12.54 per week (which was what, it seemed, he gained from the swimming teaching) was made good mainly by additional overtime. There was no finding that as a matter of contract, Mr Bennett was contractually to be left free to do swimming lessons or that there was any breach in shifting his time so that he could not.

It might be thought from that recital over those five particular grounds that the Industrial Tribunal would have held that there was no constructive dismissal. That, indeed, was the conclusion of the Chairman, the dissenter. He concluded that:

"While the evidence did indicate that Mr Cavanagh had a management style, [the actual typescript says 'staff' but it must mean 'style'] very different from that of the local authority, there was no evidence to show that his behaviour had been unreasonable or his expectations of the applicant unrealistic. Evidence did indicate that the applicant failed to cope with the new management style, but that the evidence does not show that the respondents are to blame for this and nothing to indicate that their behaviour would amount to a fundamental breach of contract."

We do not disguise that the reasoning of the minority Chairman has about it an air of cogency, but that is not the matter we have to decide. What we have to decide effectively falls into two questions. First of all, is there any express direction which the majority gave themselves in law or any direction that it is proper for us to imply that the majority gave themselves in law, which can be described as amounting to an error of law? That is the first question. If there is not, the second question is "is there any material conclusion of the Industrial Tribunal, as to which there was not any supporting evidence such as would justify it having been held to be the case?".

Looking then to the first of those questions as to self directions of law, it is right that we should read the whole of paragraph 8, which sets out the majority's conclusion:

"The majority decision of the Tribunal is that the applicant was unfairly dismissed, in that he resigned in circumstances where he was entitled to do so because of the respondent's behaviour. The problems highlighted by the applicant in his application to the Tribunal and in his evidence do not individually amount to a fundamental breach of contract but should be viewed together. Looking at them as a whole, as part of a continuing pattern through the period April 1995 to February 1996, they do amount to a fundamental breach. The evidence shows that the attitude adopted by the applicant's immediate manager Mr Cavanagh made it impossible for the applicant to continue in his job. There was no evidence that the applicant had been failing to correctly perform his job yet the aggressive management style of Mr Cavanagh was such that he constantly harassed the applicant for the whole period of their relationship putting him under unreasonable pressure. This was particularly so in relation to the staff rosters where the applicant was being constantly blamed for the failure of the roster system to work properly when the real reason was staff shortages and a high turnover of staff, caused by low morale after the respondents took over the swimming pool management. The behaviour of Mr Cavanagh did amount to a breach of the obligation of mutual trust and confidence and the applicant was entitled to resign because of the respondent's behaviour."

For the majority to ask themselves whether Mr Bennett was entitled to resign, on account of the Respondent's behaviour, cannot be incorrect in law. There is no fault in a view that complaints which severally do not amount to a fundamental breach may yet do so when viewed cumulatively.

The question whether there has been a breach of contract and, if there has, whether it is fundamental, are properly regarded as mixed questions of fact and law and where there is no improper direction on the law, well then, for the purposes of appeal they increasingly come to be regarded as questions of fact for the Tribunal as the so-called industrial jury.

The conclusions at the end of that paragraph that the behaviour of Mr Cavanagh did amount to a breach of the obligation of mutual trust and confidence and that the Applicant was entitled to resign because of the Respondent's behaviour are conclusions which are sufficient to justify (and certainly are no improper part of) a decision that there was constructive dismissal. True it is that in that paragraph and, indeed, in the whole of the decision there is no reference to any particular authorities or text books or principles, but a decision cannot be regarded as wrong only on that account.

All in all, looking at the directions of law which are, expressly or impliedly, to be taken to have been given by the Tribunal to itself, we cannot detect any error of law in the directions which it can be taken to have relied on. That being so, we therefore turn to the second of our questions; it raises the question of whether there are conclusions as to which there was not any evidence which would support them. We use that particular language because, although it was not referred to before us, there is a well known reference in the case Piggott Brothers & Co Ltd v Jackson [1992] ICR  85, at p.92, in the Court of Appeal where, reviewing various ways in which perversity is described, Lord Donaldson of Lymington, M.R., says this (he is commenting in particular on the one-time test "my goodness that was certainly wrong"):

"Nevertheless it is an approach which is not without its perils. A finding of fact which is unsupported by any evidence clearly involves an error of law. The Tribunal cannot have directed itself as it should, that the findings of fact need some evidence to support them. The danger in the approach of May L.J. is that an appellate court can very easily persuade itself that, as it would certainly not have reached the same conclusion, the tribunal which did so was 'certainly wrong'. Furthermore, the more dogmatic the temperament of the judges concerned, the more likely they are to take this view. However, this is a classic non-sequitur. It does not matter whether, with whatever degree of certainty, the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal was a permissible option. To answer that question in the negative in the context of employment law, the appeal tribunal will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the industrial tribunal. If it cannot do this, it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option and has to be characterised as 'perverse'."

Was there here, then, no evidence from which the majority could have concluded, firstly that the evidence shows that the attitude adopted by the Applicant's immediate Manager, Mr Cavanagh, made it impossible for the Applicant to continue his job. Secondly, was there no evidence that the Applicant had been failing to correctly perform his job but that the aggressive management and style of Mr Cavanagh was such that he constantly harassed the Applicant for the whole period of their relationship, putting him under unreasonable pressure? Was there no evidence at all that could have led them to the conclusion that I have already read, namely the very last sentence of paragraph 8? As to that, a handicap immediately presents itself. We do not have the Chairman's Notes of Evidence. It is for the Appellant to satisfy us that there was no evidence on particular points, if that is his case. That cannot, generally, be done and cannot here be done without the Chairman's Notes of Evidence. We are told that there have been two applications by the Appellants for the Notes of Evidence but we have to deal with the matter as it is before us. Presumably there was either no appeal against that declining of the notes, or an unsuccessful appeal against it, but, at all events, we have not got the notes.

So that does put the Appellant under a handicap when he is seeking to say that there are conclusions here as to which there was no supporting evidence. But there is, in fact, some evidence on the point that plainly was before the Industrial Tribunal because we have a copy of Mr Bennett's witness statement that was before the Industrial Tribunal and was, presumably therefore, evidence and looking at page 27 of our bundle, it says:

"The constant pressure that I was subjected to over a period of 10 months (Since Relaxion took over the running of the pool from 1 April 1995) resulted in my GP treating me for Anxiety and Depression."

And, on the next page, again Mr Bennett talks about "the constant pressure he was putting on me, all of this was having an adverse effect on my health".

It is not, as that passage from Piggott Bros v Jackson makes clear, for us to decide yea or nay whether we would have decided, as had the Industrial Tribunal, and we have already described the Chairman's approach, the minority approach, as been not uncogent. But let us now turn to the particular criticisms which Mr Smith, in the course of a well directed argument, raises against the conclusion of the majority. He says, referring to the well known case of Meek v City of Birmingham District Council, [1987] IRLR 250 in the Court of Appeal and relying on paragraph 8 of that decision:

"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost."

And the paragraph continues. But, I think, the whole flavour of the case requires other passages also to be taken into account. At paragraph 9, Bingham LJ refers, with approval, as it seems, to the earlier judgment UCATT v Brain [1981] IRLR 225, of Donaldson LJ and quotes a passage from it, speaking of the reasons of industrial tribunals:

"But their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given."

And, a little later, referring to a passage in Martin v Glynwed Distribution Ltd [1983] IRLR 198 at p.202, Bingham LJ quotes the sentence:

"So far as the findings of fact are concerned, it is helpful to the parties to give some explanation of them but it is not obligatory."

We have to bear in mind those passages. It is only the broad reasons which need be given and facts can be given without being explained in full.

Mr Smith says that the cause of the resignation was never expressly found by the Industrial Tribunal. But in that paragraph 8, which we have read, the majority found that Mr Bennett resigned; they find that he was entitled to resign; they found that his job had been made impossible and that it had been made impossible by way of Mr Cavanagh's harassment over a period and that he was put under unreasonable pressure.

It seems to us that the Industrial Tribunal need not spell out that two and two had made four. They concluded that there was a breach of the obligation of mutual trust and confidence and that the Applicant was entitled to resign and had resigned and, it seems to us, that without the reason having been entirely expressed it was sufficiently clear at least to satisfy Meek v City of Birmingham. Moreover, the Industrial Tribunal did find that at the time of resignation Mr Bennett wrote a letter of complaint, which they held to have summarised his complaints and we have that letter and at the end of the first paragraph it says:

"I have, over the past ten months, been subjected to what I consider to be a vindictive campaign by yourself to force me into resigning and this pressure has been particularly intense over the past six weeks."

It would, no doubt, have been preferable had the majority been even more explicit but we do not find that their shortcomings here are so marked as to amount to any error of law on that particular issue.

Mr Smith next says that, there was no solid basis for findings of fact that the Industrial Tribunal came to, namely that Mr Bennett was under constant harassment and, in particular, from Mr Cavanagh. But there are, undoubtedly, express findings in the decision that Mr Cavanagh was frequently blaming Mr Bennett; that he phoned him at home on a particular issue and that, in the course of an unpleasant, rather personalised row, there were threats made. The overall weight to be given to that evidence and quite what its flavour in full was to those who heard the evidence in full and saw the witnesses concerned, is entirely a matter to be left to the Industrial Tribunal. It is for them to sum up what they regarded it as, in all, amounting to. I remind that we do not have the Chairman's notes. We cannot just assume that the evidence was not sufficient either from the fact that not every aspect of it is expressly set out or still less merely from the fact that the Appellant says so. Again, this is an area where we cannot attach any significant weight to this supposed shortcoming.

Next Mr Smith says, there was no express finding of a breach of contract but, of course, there was. It was found that there was a breach of the obligation of mutual trust and confidence. Whether there was such a breach is, as we have mentioned, a matter of mixed fact and law but it cannot be said that there was no finding of a breach of contract. There was no express finding that, in the five particularised complaints, there were individual breaches of contract. But that would not carry Mr Smith any distance, in any event, because there is, no doubt but that a series of not unlawful acts, acts not unlawful in themselves, can in aggregate in particular circumstances amount to a breach of the obligation of mutual trust and confidence.

Then, Mr Smith says that affirmation as a question was not adequately dealt with by the Industrial Tribunal. As to that, the particular form of affirmation that seems to have been put in front of the Industrial Tribunal by way of argument is dealt with in summary form at paragraph 6 of the Industrial Tribunal's conclusions. It had been argued below that, even if there had been any such breach of contract, the Applicant had not acted quickly enough to rely upon the same. Plainly, that was not accepted by the majority. It was not, in terms, rejected by the majority but in another familiar case, not cited to us (but which, in this Tribunal, is as if "mother's milk") is the observation of Lord Russell of Killowen in the Retarded Children's Aid Society Ltd v Day [1978] ICR 437 that one cannot take it simply from the fact that a matter is not mentioned that it was not in the Industrial Tribunal's mind.

It is clear that one can have a "last straw" argument in relation to constructive dismissal and where one has a "last straw" argument (namely that over a period unpleasant things have been happening, each of which in themselves did not justify the employee walking out, downing tools and leaving but which, collectively at the end, can properly be so regarded) there is always an argument that the earlier acts should have been complained of and yet "last straw" arguments are permitted.

Whether a "last straw" argument is an argument that can properly be given weight is very much for the assessment of the Industrial Tribunal in the particular case before it. Here, the argument, that time had passed so that no longer was Mr Bennett able to complain of matters, was, as we have said, plainly not accepted. But, in any event, the Industrial Tribunal in paragraph 8, which we have cited, speaks about a continuing pattern throughout the period April 1995 to February 1996 and it was, of course, in February 1996, indeed, in early February 1996 that Mr Bennett resigned. So if there was a continuing pattern over that period, well, at the end of the period, there is no real gap between the end of the period and the point at which Mr Bennett had resigned.

It is difficult to assess without seeing the witnesses and hearing every word of the evidence quite what the force of a "last straw" argument is, but it is, as it seems to us, essentially a matter for the Industrial Tribunal that has the benefit of seeing the witnesses and observing their demeanour, to either accept or reject, and here affirmation was plainly not accepted by the majority. We cannot say that that amounts to an error of law.

Then Mr Smith deals with a point which arose in this way. Mr Bennett issued his resignation letter and complained that he had been constructively dismissed, only briefly after Relaxion had indicated that it was going to take disciplinary proceedings against him. He was not told expressly what the subject matter of the disciplinary hearing was to be but he did understand that it concerned rostering. The Industrial Tribunal says:

"That notification did not tell the applicant why there was to be a disciplinary hearing but he was aware that the principal complaint was the organisation of the rosters."

And the Industrial Tribunal also holds:

"The applicant's evidence was that the threat of disciplinary action did not in any way affect his decision to resign and claim he had been constructively dismissed."

Mr Smith's argument that there is an inconsistency there or, at any rate, he qualifies that (I think) by saying, eventually, that there is a possible inconsistency between that attitude, namely not to regard the threat of disciplinary action as something such as to affect his decision to resign and his complaint that, over a long period he had been harassed in such a way as to justify his walking out. It is, at most, only a possible inconsistency and it certainly is not the business of an Industrial Tribunal to chase up every possible inconsistency. We do not see that to be any error of law at all.

Then, finally, we think, of the various points that Mr Smith has raised was the point that Mr Bennett failed to make use of the company's grievance procedure and he has referred us to W.A. Goold (Pearmak) Ltd v McConnell [1995] IRLR 516, which is a case in which there is a passage at page 517 that reads as follows:

"It is clear therefore, that Parliament considered that good industrial relations requires employers to provide their employees with a method of dealing with grievances in a proper and timeous fashion. This is also consistent, of course, with the codes of practice. That being so, the industrial tribunal was entitled, in our judgment, to conclude that there was an implied term in the contract of employment that the employers would reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have. It was in our judgment rightly conceded at the industrial tribunal that such could be a breach of contract."

Ms Omambala, for the Respondent before us, rightly draws attention to the fact that within that citation there is a reference to what Parliament has enacted and also to codes of practice. We are immediately concerned with neither. But, in any event, it cannot follow from the fact that an employer is contractually or by implication entitled to require there to be a grievance procedure that, if there is a grievance procedure, there is some duty on the employee to use it. One can very readily imagine a case (I am not saying for a moment that that is this case) in which so grievous are the complaints which an employee has about his employer's conduct that he could not conceivably expect a fair hearing before any disciplinary process or, even that it could be harmful to him. It would be absurd, that being so, to suppose that simply because the employer had provided a grievance machinery that there was some duty on the employee to use it. Whether there is a duty in any particular case or, even if there is no duty, whether it is a factor which can be deployed as a criticism of the employee not to have used it, very much will vary from the facts of one particular case to another. We are certainly not prepared to hold that there is a general duty of the kind which Mr Smith argued for and whether, on the particular facts of this case, criticism was to be made of Mr Bennett on that ground, is a matter that is essentially to be left to the Industrial Tribunal. They make no such criticism and we can find no error of law in their failing to attach weight to any such criticism.

All in all, whilst we see cogency in the conclusion of the minority Chairman, we remind ourselves that that is irrelevant. Looking to the decision of the majority, we have not been able to find either error of law by way of express or implied self-direction, nor conclusions as to which no evidence whatsoever was available for their support. All in all, therefore, we find no material error of law and dismiss the appeal.