United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D BROWN (of Counsel) Legal Department USDAW Oakley 188 Wilmslow Road Fallowfield Manchester M14 6LJ


 


JUDGE PETER CLARK: This is an appeal by the Applicant before the Exeter Employment Tribunal, Mrs Ong, against that Tribunal's majority decision (the Chairman dissenting) promulgated with extended reasons on 13 July 1998 that she was not constructively dismissed by the Respondent, Co-operative Retail Services Limited, and therefore her claim of unfair dismissal failed.

We set out the facts as found by the Employment Tribunal, bearing in mind that on certain important factual issues the lay members took a different view of the evidence from that of the Chairman.

The Applicant commenced employment as a shop assistant in the Respondents retail premises in Barnstaple, advancing to departmental manager. In early 1997 there was a reorganisation and the plan was to replace departmental managers with the grade of team leader. The Applicant underwent assessment in February 1998 and was successful. A colleague, Mr Cann, the other nominee from the branch, failed. The branch manager Mr Pickin told the Applicant of the result on 9 March 1998 when she was advanced to team manager.

She was then launched into the management of two departments with about 15 staff, including supervisors. However, within six weeks the Tribunal found there was in effect a mutiny of her supervisors against her. Two offered their resignations claiming that they could not cope with her management technique. There then followed attempts by Mr Pickin to deal with the matter and it was her evidence that he told he that she had one month to sort out any staff problems and if she did not she would be dismissed. Mr Pickin denied that that conversation had taken place. The majority of the Tribunal accepted Mr Pickin's evidence, the Chairman preferred the evidence of the Applicant. He found that Mr Pickin's evidence was evasive and less than frank.

Throughout the Tribunal's reasons, it is clear that the majority preferred the evidence of Mr Pickin and the Chairman on material matters preferred that of the Applicant. The Tribunal went on to conclude that in relation to the issues raised first that Mr Pickin had breached the term of mutual trust and confidence implied into the contract and secondly that there was a breach of an express term in that the laid down disciplinary procedure was not followed in the Applicant's case and reached different conclusions. The majority were not satisfied that Mr Pickin's action constituted a breach of any term of the contract and they set out their reasons for that conclusion. The Chairman on the other hand found that Mr Pickin had displayed a bias against the Applicant which he demonstrated by continuing to use Mr Cann as deputy without any explanation to the Applicant, which could only be perceived by her and the rest of the staff as a lack of trust and confidence in her.

In those circumstances by a majority, the Tribunal concluded that no breach of contract, let alone a fundamental breach of contract, had been established by the Applicant and as a result her claim failed. Against that decision the Applicant now appeals. Her original Notice of Appeal raised a number of factual matters seeking to establish that the majority decision was perversed. In this appeal, Mr Brown has refined the submission to a proposition that the majority fell into error in failing to analyse the effect of the failure of the Respondent to arrange a joint meeting with the Appellant and the relevant staff, to provide her with sufficient support of training and in allowing her to answer allegations of misconduct. He further submits that the majority failed to analyse whether the breach of the express term in following the disciplinary procedure gave a right to claim constructive dismissal, or they failed to give adequate reasons for their conclusion. They also fell into error in concluding that the fact that there was a reason for treating Mr Cann as Mr Pickin's deputy in preference to the Applicant was justified.

All of these are matters which were canvassed before and considered by the Tribunal. The difficulty in this appeal is that the Chairman has plainly directed the Tribunal correctly as to the law. The majority members took a different view of the evidence from that of the Chairman. The result was that both findings in our judgement were permissible, the findings of the majority and the findings of the minority. Indeed the findings of the minority member, the Chairman indicate clearly that all the matters of which the Appellant before us now complains were fully considered by the members of the Tribunal. The Court of Appeal has made it clear on a number of occasions that the question of whether or not the employer is in fundamental breach of the contract of employment is essentially a question of fact for the Employment Tribunal. This case is no exception. We see no grounds for concluding that the majority either misdirected themselves in law or reached a conclusion which can properly be described as perverse as that expression is properly applied and understood, Accordingly, we shall dismiss this appeal at this preliminary hearing stage.