United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR EGAN (of Counsel) Messrs Coldham Shield & Mace Solicitors 76 Wood Street Walthamstow London E17 3HT


 


MR JUSTICE LINDSAY: After a number of separate days of hearing before the Industrial Tribunal at London (North), the last of which was 24 February 1997, there later were promulgated the extended reasons of the Industrial Tribunal on 8 April 1997 in the matter in which Mr L Baker was Applicant and Messrs Lipkin Gorman, a two-partner firm of solicitors, were the Respondents. The majority decision of the Tribunal was that Mr Baker was not constructively dismissed and, therefore, his application failed. The extended reasons, of course, include the reasoning of the minority as well as the reasoning of the majority.

Mr Baker appealed against that decision by notice of appeal of 15 May and he appears today by Mr Egan, who has helpfully provided us with a skeleton argument, which makes the dealing with the case convenient. Not every argument in the skeleton has been fully orally expanded but none has been abandoned either, so that to that extent it may be prudent to look at each of the arguments in the skeleton because there was no argument orally addressed that was not in the skeleton. Looking, therefore, at paragraph 5 of Mr Egan's skeleton, the complaint there is that:

"the majority erred in law in failing to give any consideration as to whether the numerous examples of negligent management and unfair industrial relation procedures, whilst not intentional, either individually or cumulatively amounted to a repudiatory breach of contract entitling the Appellant to resign and claim constructive dismissal."

At first glance there is some semantic support for that proposition. What the Industrial Tribunal said in their paragraph 12 is:

"None of the employer's actions taken in isolation amounted to a repudiatory breach, nor taken together did they amount to a breach of the implied term of the contract relied upon by Mr Baker."

None of the actions in isolation amounted to a repudiatory breach but, on the face of that sentence, there is no conclusion that the employer's actions, taken together, amounted or did not amount to a repudiatory breach. But one has to look also at the preceding sentence in paragraph 12, which refers to the actions and incidents before the letter of 26 October, which were exhaustively explored before the Tribunal, and it was held that the matters had been sufficiently dealt with within what the Industrial Tribunal called the "softly-softly" approach.

Also, in paragraph 11, the Industrial Tribunal, by the majority said:

"Looking at the Respondent's conduct in its entirety [which I emphasize] we do not find the alleged repudiatory conduct is made out."

Accordingly, it seems to us there is no ground for saying that the entirety of the firm's conduct was not held not to be repudiatory and so that first ground in paragraph 5 of Mr Egan's useful skeleton seems to us not to be made out.

Going on to the ground in paragraph 6, one might summarize that as falling into two parts: first of all, a lack of a grievance procedure and, secondly, that there had been an inadequate response to Mr Baker's complaint relating to a note on the Appellant's employment file erroneously suspecting him of having called the fire brigade to the office.

So far as concerns the lack of a grievance procedure, one does need to remember that this is a very small firm but, in any event, the majority held that Mr Cukier, one of the two partners, was accessible and ready to hear staff concerns. In paragraph 7 the majority held that:

"Mr Cukier was accessible and available to hear any concerns which staff might wish to bring to his attention."

Also, Mr Cukier was held to be a person who would not have contemplated or tolerated harassment or victimization. In paragraph 11 the majority held:

"Even from some of his own [that is Mr Baker's] witnesses there was a denial that Mr Cukier was a person who would have tolerated any such thing."

"Any such thing" was referring back to organized harassment or victimization within the practice. Moreover, the majority held that:

"Mr Baker agreed in evidence that though he had ready access to Mr Cukier throughout and was on friendly terms with him, he had never orally or in writing suggested to him that he found the work situation so intolerable that he could no longer put up with it"

and so there was ready access to Mr Cukier, who was a person who was on friendly terms with Mr Baker and seems to come out somewhat sympathetically.

It is true that there was criticism, to some extent, that Mr Baker and a Mr Manuell fell out from time to time in such a way that there was friction between them. The Industrial Tribunal found by the majority that both Mr Manuell and Mr Baker were at fault on that score. The finding there was:

"Further, we find that the disciplinary approach of Mr Cukier was not ideally suited to dealing effectively with Mr Manuell's occasional verbal tantrums and the friction which developed from time to time between him and Mr Baker for which neither was without fault."

So there was a shortcoming there in the firm's arrangements but the weight to be given to such a shortcoming is essentially a question of fact and degree best left, and perhaps only to be left, to the Industrial Tribunal that heard the evidence as a whole and saw the witnesses, so that although there is some criticism as to the lack of a more formal grievance procedure, given the accessibility and character of Mr Cukier, it does not seem that one can make very much of it and the majority did not do so.

The fire brigade complaint was a strange complaint and it did trouble the majority, In paragraph 12 they say:

"We were troubled also over the placing and retention on Mr Baker's file without his knowledge of a memorandum erroneously suspecting him of calling the fire brigade to the office when Mr Cukier was told that he was not in fact the person at fault"

The majority considered that was an example of "neglectful management" by Mr Cukier, which was corrected when brought to his attention by Mr Baker, so the point was carefully considered by the majority. There is no suggestion that Mr Baker actually suffered from the document remaining on his file after Mr Cukier knew that it had not been Mr Baker who had erroneously called in the fire brigade. It seems to us that Mr Cukier should have seen to the destruction of that erroneous memorandum but there is nothing to show that its existence thereafter caused any disadvantage to Mr Baker. Indeed, it is not even clear that Mr Baker knew of it, namely, knew that it was still there on the file even after Mr Cukier knew that it was a false note, and even knew of that at the time when he claimed to have been constructively dismissed. The ground in paragraph 6 of the notice of appeal skeleton argument seems to us not to be made out.

In paragraph 7, lack of fairness in disciplinary sanctions is relied upon and the only sanction, if any, that was imposed on Mr Baker was that he was sent a long letter of 26 October, a letter which was carefully considered by the Industrial Tribunal. Mr Baker, of course, had a full opportunity to challenge the shortcomings there alleged against him and to show, if he could, that they were unfounded. As a letter of complaint, it was found to be substantially justified. What the Tribunal said in paragraph 13 was:

"As to the letter of 26 October in its terms we find that it was substantially justified even though we would criticise it for overstating the number of staff who had found Mr Baker's response to their instructions unsatisfactory"

They also criticised the lack of objective evidence about comparable sick absences but, for all that, it was found "substantially justified". The majority went on:

"The Respondent was not acting unreasonably in bringing those criticisms to Mr Baker's attention in writing."

They went on to speak, and they had used this expression earlier too, of a "softly-softly" approach to discipline in the firm. They said this:

"But the application of the softly softly approach in the past by Mr Cukier had failed to produce the necessary level of improvement and that letter [of 26 October] was indicative of a reasonable employer attempting to bring back an employee who, despite being able to do the job effectively if he tried, had become disaffected."

So there had been an earlier approach before the letter that had led to no improvement. The object of the letter was not to punish. It was held by the majority:

"It was not an arbitrary exercise but was aimed at getting Mr Baker to improve his performance and stay in the business."

Mr Egan has drawn our attention to British Broadcasting Corporation v Beckett [1983] IRLR 43 and, in particular, to the passage in that at paragraph 21 where the EAT under Mr Justice Neill said:

"We see no reason to differ from the view expressed by an Industrial Tribunal in Theedom v BRB [1976] IRLR 137 that the imposition of a punishment which is 'grossly out of proportion to the offence' can amount to a repudiation of a contract of service."

The object of the exercise of the letter of 26 October was not to punish, it was to encourage and, to revert to the words of the majority, "to improve his performance" and to get him to stay in the business. There is a world of difference between a letter having that as an object and some other step which is a punishment, so we do not feel that we are given any relevant guidance by the BBC case and we find this ground in paragraph 7 not to be made out.

In paragraphs 8 and 9 of the skeleton there is the fire brigade point. A false accusation had been made against Mr Baker. It was corrected in the sense that Mr Cukier was told that it had not been Mr Baker who had wrongly called the fire brigade in. The complaint should, undoubtedly, have been taken off the file but, as we mentioned earlier, its remaining on the file seems to have affected no one and certainly not Mr Baker. It is, in our view, a distortion to represent that as a false accusation of a criminal offence, which is what is sought to be made out in paragraphs 8 and 9 of the skeleton argument. We do not see its remaining on the file a defect of such a magnitude as of itself to amount to a breach of the implied terms as to trust and confidence and, as we mentioned earlier, it is not even clear that Mr Baker knew that it had remained there even after Mr Cukier had been told that it was false. The fire brigade point was carefully considered. It troubled the majority, as they themselves said, but there is no reason to doubt the factual conclusion at which they arrived was one which they were entitled to come to. It is interesting that the minority single Member seems not to have attached any weight to the fire brigade point. I do not find it referred to in the reasoning of the minority. The grounds in paragraphs 8 and 9 of the skeleton do not seem to us to be made out.

In paragraph 10 of the skeleton the complaint is that the majority were looking chiefly at whether the firm's conduct had been intentional in the sense of their intending acts to amount to a repudiatory breach. Mr Egan is there making the point that conduct can be taken to amount to a repudiatory breach whether it is intended to have that purpose or not. True it is that there are indications in the majority decision that intent was looked at but the reason why intent is looked at is quite plain and that is that Mr Baker had brought intent into the accusations against the firm. In paragraph 9 the Industrial Tribunal sets out Mr Baker's case as it was understood by them to be. It said this:

"His employer had, he claimed, breached the fundamental implied term in his contract that they would not without reasonable and proper cause conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties. Their conduct was deliberate to this end [emphasis added] and went to the root of the contract."

It was Mr Baker himself who made the intent of the firm an issue before the Industrial Tribunal and that, no doubt, is why the Industrial Tribunal went to the lengths of rebutting that accusation. What they say in paragraph 11 at the top of page 7 is:

"Nor do we find that it was the firm's aim to make life so intolerable for Mr Baker that he would end up resigning."

On page 8, speaking of the letter of 26 October, they say that:

"It was not an arbitrary exercise but was aimed at getting Mr Baker to improve his performance and stay in the business."

The majority was not holding that there could only be a breach of the implied term as to trust and confidence if the breach was intended. They were simply rebutting Mr Baker's case that the firm had, indeed, intended to procure a breach of the implied term. We find that the ground in paragraph 10 is not made good, either.

We think we have, therefore, dealt with all the arguments, both those addressed orally and those addressed only in writing before us, and, having examined them, we find nothing in them that amounts to any indication of an error or prospect of an error such that the Industrial Tribunal majority decision erred in law and, accordingly, we do not think this matter should go to a full hearing but rather we dismiss it here and now.