United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR T A CEDENIO (Consultant) Employment Advice & Tribunal Service 32 Castle Road Epsom Surrey KT18 7NZ


 


JUDGE PETER CLARK: The issue in this case, which came before the London (South) Industrial Tribunal over two days last year, was whether the Applicant, Mrs Celis, had been unfairly constructively dismissed by her former employer, the Shirley View Nursing Home. The Tribunal upheld her complaint, giving full reasons for that decision in a document dated 31 May 1996.

We remind ourselves, for the purpose of this preliminary hearing, that the question as to whether the primary facts found by an Industrial Tribunal constituted a breach of contract by the employer, and whether that breach was a fundamental breach entitling the employee to treat herself as discharged, are themselves essentially questions of fact for the Industrial Tribunal. Our powers to interfere with a Tribunal's conclusions on these questions are limited to correcting patent misdirections in law; otherwise, the decision must be perverse. Woods v W M Car Services Ltd [1982] IRLR 413.

The factual background is set out in admirable detail in the Tribunal's Extended Reasons. It may be summarised in this way. The Applicant's employment at the Nursing Home as a Night Care Assistant commenced on 9 September 1992. She worked four 12 hour night shifts per week. On 1 December 1993 a Miss Kaur was appointed Matron of the Home. One of her first acts was to unilaterally reduce the Applicant's hours from four to three nights per week. The Applicant objected. On 12 December her contractual hours were restored. On 15 December Miss Kaur issued the Applicant with a written warning specifying four heads of complaint. There had been no opportunity given to the Applicant to defend herself on these charges before that penalty was imposed.

With the assistance of her Trade Union she sought to appeal that decision and/or to raise a grievance under the employer's grievance procedure. The process dragged on. Suffering from stress she was certified unfit for work. The appeal hearing finally took place before a Mr Wimalendra on 21 June 1995. He did not resolve the matter then and there but, without informing the Applicant, went on holiday. By 18 July she had had enough. She resigned, claiming constructive dismissal.

On 21 July the employer wrote to the Applicant, withdrawing the written warning issued as long ago as 15 December 1994.

The Industrial Tribunal found that there was to be implied into the Applicant's contract of employment a term of mutual trust and confidence. That finding is uncontroversial.

As to the fundamental breach of that term the Tribunal summarised their findings at paragraph 13 of the Reasons in this way:

"13. The issue of the written warning without any discussion without any investigation was again appalling industrial relations and it appears the warning was given with little or no evidence. This was conduct on the part of the employer which could lead to damage the Applicant's trust in her employer. Having said that both of these matters could have been rectified early had the matter been dealt with correctly through the grievance procedure and expeditiously. It wasn't. It was allowed to drag on and the Applicant's health suffered. The Respondents knew the Applicant's health was suffering because of it. The Respondents did nothing to bring about a speedy hearing to resolve the matter and not only did they not bring about a speedy hearing but they also made matters worse when they suggested that the Applicant's future employment might be at risk because of her health problem, which of course they had been told had been caused, as the Applicant saw it because the Respondent had brought inappropriate disciplinary action against her. The grievance hearing was finally held 6 months after the matter first arose and then some 27 days elapsed thereafter with no decision, when the Applicant decided that enough was enough and that she wished to bring her employment to an end."

Based on that summary the Tribunal unhesitatingly found that the Respondents by their conduct over the course of that period were in serious breach of their obligations under the contract of employment, and they concluded that the Applicant was entitled to treat herself as discharged and to leave the employment.

In this appeal brought by the employer Mr Cedenio seeks to take the following points.

First, that the Applicant affirmed the contract by pursuing the internal appeal procedure. That is an unsustainable proposition, where what the Tribunal found, inter alia, was that the employer's delay in dealing with the appeal contributed to the Applicant's loss of trust and confidence in her employer.

Second, he argues that this is a case in which any breach of contract by the employer in December 1994 was in the course of being remedied by means of the appeal procedure when the Applicant tendered her resignation. Again, that submission overlooks the nature of the contractual obligation which the Tribunal found the employer to have breached.

Next, he says that this is a "last straw" case. We prefer to view it as a consistent course of conduct by the employer over a period exceeding six months which, as the Tribunal found, undermined the Applicant's trust and confidence in her employer.

Finally, he contends that the decision was perverse. It was not, in our judgment. This was a careful decision by the Tribunal, which properly discharged its function of finding the primary facts and then went on to reach a permissible conclusion in law.

This appeal is dismissed.