United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D BURN (Representative)


 


MR JUSTICE KIRKWOOD: This is a preliminary hearing in an appeal by Mr Butcher from the decision of an Industrial Tribunal at Shrewsbury sitting on 28th February and 2nd June 1997 dismissing his complaint of unfair dismissal.

The appellant worked for Hickton Madeley Architects from 1988. In 1993 and again in 1995, there were changes in the terms of employment which the appellant accepted. The relevant change in 1995 was reduction from a five day to a three day week. A proposal to return to a five day week was discussed with the appellant later in 1995, but he declined it.

The appellant's work pattern of three days a week caused some difficulty to the running of the architectural practice. Early in 1996 that was pointed out to the appellant as was the possible risk of redundancy. At that time he was offered retraining as a CAD designer with return to a five day week. The appellant did not accept that and the employer did its best to accommodates the appellant's three day working week.

A new contract for surveys of some council housing came in. The appellant was allocated to work on that. The employer was dissatisfied with the appellant's work on it and wanted to discuss it with him. The appellant twice declined such discussion. On 30th April 1996 accordingly a written warning was issued.

The appellant asked by letter for a meeting to discuss that. A meeting was convened for two days later. The appellant, as the Industrial Tribunal found, then did not want to discuss the matter.

On 30th May 1996 the appellant wrote that he had received no overtime pay in his April or May pay. The employer received that letter on 3rd June 1996. On 10th June the appellant had not in fact received a reply. He wrote a reminder. The employing partners were out of the office that day. The next day, 11th June, the appellant wrote a letter as to which the Industrial Tribunal observed that he had by then already another job to go to.

In its extended reasons the Industrial Tribunal considered whether there were circumstances in which the applicant, as he was before them, was entitled to terminate his employment by reason of the employer's conduct. They reminded themselves of the dicta of Lord Denning in Western Excavating (ECC) Ltd v Sharpe [1978] 1QB 761. The Industrial Tribunal reminded themselves that the breach may be of an express term in the contract, or it may be a breach of one of the implied terms in employment contracts. They reminded themselves that the applicant was arguing not only breaches of express terms, but also a breach of the implied duty of mutual trust and confidence.

Before the Industrial Tribunal and before us, the appellant has sought to argue that there was a series of actions by the employer, each amounting to a repudiatory breach of the contract. Alternatively, taken collectively and cumulatively, the employer's actions amounted to conduct entitling the appellant to treat the contract as at an end.

The Industrial Tribunal dealt most carefully with all that in its extended reasons. In paragraph 8 it said:

"8. ... However, it was in February 1995 that he should have left and claimed constructive dismissal. Instead he agreed to the change and subsequently, when it was proposed that he may be able to revert to his original contract, he declined for whatever reason that may have been. He had also accepted the reduction in his pay back in January 1993. These changes were not the beginning of the end, nor were they followed by a series of other events making the employment situation intolerable.

9. ... He refused to accept that the Respondents increasingly found it difficult to allocate work to him because he was only available for three days a week. Until January 1996 the relationship had been amicable - the Respondents appreciating the Applicant's design work and accommodating the Applicant's wish to pursue his angling interests.

10. The relationship deteriorated after the warning in February 1996 that he might have to be made redundant. The warning itself was not a breach of contract, either present or anticipatory. it was a warning about the situation with no specific details. The Applicant was indignant and angry that it should even be suggested that he revert to being an architectural assistant, that he should train on the CAD system and that he should be expected to work on a five-day week basis of a lower salary than his former £22,000. We can understand his reaction but find that he was not prepared to recognise that the offer was made as an alternative to possible redundancy. Having rejected the offer, the Respondents confirmed that they would continue to endeavour to find him work to do as they had since February 1995.

...

12. The Applicant gives the Respondents' criticism of his work on the Solihull project as another example of victimising him, and aiming to make his employment so uncomfortable that he would resign. The Respondents say that his recording was indecipherable in some cases, incomplete and generally unsatisfactory. On the first day of this hearing under cross-examination the Applicant accepted that each entry in a different coloured pen on the record sheets were separate annotations. He also accepted that he had been asked for more information and to explain certain entries. The employer was entitled to take the Applicant to task over the returns and the Applicant refused to discuss the matter. His walking out of the meeting to discuss the matter effectively precluded any discussion and deprived the Respondents of hearing what the Applicant had to say. There may have been no formal interview with his two colleagues on this project but the Respondents had seen and been made aware of the difference between their forms and the Applicant's. Mr Bennett also wished to discuss a complaint about the designing of an extra car park space. The Applicant had not recognised that there was an existing lamp-post where he had proposed the parking space should be. We cannot find on the evidence we heard that the Applicant was being victimised by being taken to task or that it was, in his words, a "set up".

13. Thereafter there was a further deterioration in the working relationship, the Applicant refusing to discuss matters orally and then complaining about the Respondents putting other matters in writing. We find it was the Applicant's actions which set in train the exchange of correspondence and which left the Respondents with no alternative but to issue a warning. He precluded the matter being dealt with under any disciplinary procedure.

14. The Applicant complains that the non-payment of overtime due on the Solihull project, which was worked in March and April, which he had expected to be in his May pay, was the last straw. He had requested payment or an explanation in a P.S. in a letter dated 30 May and received by the Respondents on 3 June. A reply was sent but not received by the Applicant when on 10 June he wrote enquiring a response that day. Both partners being out of the Office that afternoon, he did not receive a reply that day and the next day the Applicant wrote again giving notice and setting out how much of the notice he would be working. We cannot accept that he left in response to any breach relating to the payment of overtime. He had already applied for a job as Anti-Poverty Officer with Shropshire County Council, had been interviewed and was offered the job in a letter dated 6 June 1996...."

In paragraph 16 of its extended reasons the Industrial Tribunal looked again at the individual matters to which they had referred in detail and considered whether there was a chain of events so as to lead to a cumulative breach of an express or implied term. The tribunal found:

"16. Having looked at the individual possible breaches of contract, none of which we find, even if they were breaches, amounted to a fundamental breach of contract, we look back across the series of events complained about and ask whether in total they showed a breakdown in mutual trust and confidence or showed a course of action justifying the Applicant in treating the contract as at an end. We cannot say that there was a breakdown until the latter weeks. The Respondents had offered to restore the Applicant to full-time working and he had declined. He had accepted the change to terms and conditions and events prior to May 1995. The Respondents had, when it became difficult to allocate work to him, offered an alternative which was not unreasonable in the circumstances. When he refused the offer, they undertook to maintain his existing contract if possible. We find that they did not therefore form part of a series of events in question. The Respondents were entitled to question the Applicant about the two projects with which they were dissatisfied. They attempted to hear his side of the matter. It was the Applicant's refusal to discuss which led to the issuing of the written warning. By the time the question of the overtime pay occurred, the Applicant was about to accept the offer of a job. He did not wait for Respondents' answer to his complaint and did not approach them to ask if it could be paid now. The breakdown in the Applicant's trust and confidence in the Respondents was caused or engineered by him. There was not, we find, a breakdown of mutual trust and confidence amounting to a fundamental breach of contract."

In seeking to pursue an appeal, the appellant's line is that in each individual aspect to which I have referred, the Industrial Tribunal misdirected itself in law.

To meet the point that if, despite the findings of the Industrial Tribunal to the contrary, anyone of them was properly regarded as a breach of contract, the appellant did nothing to act upon it at the time, the accumulation argument is deployed.

This appeal however is not in truth an appeal based upon any true point of law. Its true basis is in discontent with the finding of fact of the Industrial Tribunal and in its appreciation not only from a legal but also from an industrial point of view of the course of the appellant's employment. The Industrial Tribunal clearly looked at the realities of what occurred and found against the appellant's contentions and I have referred in some detail from the extended reasons to the way in which the Industrial Tribunal conscientiously approached its task.

The appellant also seeks to rely upon three very small and to our mind inconsequential evidential points. Evaluation of the evidence was a matter for the Industrial Tribunal and its decision is not to be impugned by any failure to make specific reference in the extended reasons to each and every item of evidence before it. We are unanimously wholly unpersuaded of any arguable case of an error of law in this decision of the Industrial Tribunal and so we are agreed that the appeal should be dismissed at this stage.