United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MISS L CHUDLEIGH (of Counsel) The Solicitor Buckinghamshire County Council County Hall Aylesbury Bucks HP20 1UD


 


JUDGE PETER CLARK: This is the employer's appeal against a unanimous decision of the Bedford Industrial Tribunal that the employee, Mrs Mazzone, was unfairly dismissed. The issue was whether or not she had been constructively dismissed. Extended Reasons for the Tribunal's reserved decision, reached after deliberation in Chambers on 5 September 1997, are dated 18 September 1997.

The facts, in summary, as found by the Tribunal were these. Mrs Mazzone entered the Council's employment as a General Library Assistant on 9 October 1978. She worked initially at Wolverton Library, and on 9 November 1987 she was transferred to Bletchley Library as Senior Library Assistant (Relief). As such she provided relief cover for absent staff at four Branch Libraries based on Bletchley.

Following reorganisation in 1995 she was based mainly at Bletchley.

Throughout her long employment she had never received a poor appraisal. She had caused some concern to the Appellant over her sickness record in 1991-3, but in 1994 this improved to seven days absence.

The Tribunal observed that the Respondent carried too much weight. In 1996 she suffered a back injury which caused her to be off for two weeks.

Without her knowledge, during 1996, the Respondent was being monitored both as to her level of sick absence and her working practices within the library.

On 18 October 1996 she attended a meeting with management, ostensibly to discuss her sickness record, during which the Area Librarian, Mr Hobbs and the Assistant County Librarian, Mr Pearson, commented about her ability to perform her job. This came as a surprise to the Respondent, the Tribunal found, whose capability to do her job had not hitherto been questioned. She was told that a further meeting would be held on 1 November in order to consider her position. In the absence of improvement a sedentary job would be considered; if none was available other options would be considered.

Following a letter from the Respondent's representative dated 28 October, enquiring which of the Appellant's procedures was being followed, Mr Pearson replied on 6 November regretting the Respondent's decision to "formalise matters", and informed her of his intention to convene a formal meeting at which her capability would be discussed.

Further correspondence ensued, during which the Respondent complained that her problems had been discussed at Stoney Stratford by a member of the Bletchley staff, culminating with a formal interview on 23 December. That meeting was convened under the Appellant's Capability Procedure Stage 1, to which we have been referred by Miss Chudleigh. It concluded with Mr Pearson informing her that he would arrange a programme to demonstrate what was required of her, including monthly meetings with Mr Hobbs to review progress.

The Respondent was distressed by the outcome of the meeting. She went off sick. On 6 January 1997 Mr Pearson wrote to the Respondent a memorandum which was, in the words of the Industrial Tribunal, couched in language of a warning, rather than support.

By letter dated 20 January the Respondent tendered her resignation. In that letter she said:

"... after 18 years to be told I need retraining etc has really knocked my confidence and I just can't cope with it all ..."

Thereafter Mr Hobbs saw the Respondent and tried to persuade her to alter her mind; however she was adamant and completed the Appellant's official resignation form which she returned on 8 February.

She then presented an Originating Application on 22 April 1997, complaining of unfair constructive dismissal.

On these facts, the Tribunal correctly directed themselves as to the appropriate test for determining the question of constructive dismissal under Section 95(1)(c) of the Employment Rights Act 1996.

They expressed their conclusion in paragraph 5 of the reasons in this way:

"5. We are satisfied on the facts as we have found them that the Respondent was not in breach of an express term of the contract. We are equally satisfied that the Respondent's actions as described above did in fact destroy the implied term of trust and confidence so essential to the employer/employee relationship, for the Respondent's actions, amounting to unfair and vague criticisms of a long serving employee who suddenly found herself being discussed by all her colleagues and being talked about at another Branch when her work and working practices had never previously been called into question, coupled with the Respondent's stated intention to impose a re-training programme and long term monitoring regime placed intolerable pressures upon the Applicant entitling her to treat herself as discharged by reason of the whole humiliating process. We consequently unanimously conclude that the Applicant was indeed dismissed when she resigned in response to this breach. In the absence of a potentially fair reason being canvassed before us, we further conclude the Applicant's dismissal to have been unfair and we so find."

In this appeal Miss Chudleigh seeks to argue principally two points. First, she submits that in paragraph 5 of the reasons the Tribunal found no breach of contract. It is correct that they found there was no breach of an express term of the contract. However, we think on a fair reading of paragraph 5, the Tribunal found that the actions of the employer destroyed the necessary mutual trust and confidence which obligation was a term to be implied into the contract.

They refer to the Respondent treating herself as discharged by reason of the whole humiliating process and then say that she resigned in response to this breach. It seems to us perfectly clear that the Industrial Tribunal found that there was a breach of the implied term of mutual trust and confidence. Her second point is that if the Tribunal did find such a breach it was not open to them to do so. She submits that the Tribunal in paragraph 5 set out three reasons for concluding that the Respondent's confidence in her employer had been destroyed by the employer's actions.

First, it is said that there was no evidence to support the Tribunal's finding that the Appellant's criticisms of the Respondent were vague and unfair and, in this connection we have been referred specifically to a memorandum dated 6 December 1996 from Mr Pearson to the Respondent. Miss Chudleigh submits that there are there six numbered points which plainly indicate the nature of the Respondent's shortcomings as they appear to the Appellant.

It seems to us quintessentially a question of fact for the Industrial Tribunal as to whether or not the complaints being made by the employer were vague and unfair and it is not our task to re-try the evidence.

Secondly, she submits that the talk in another branch about the Respondent is not a matter for which the Appellant can be held responsible. It seems to us that this Tribunal took the view that the unfair and inappropriate and insensitive use of the contractual Capability Procedure by the Appellant put the Respondent in the position that her capability was being discussed in another branch and that formed part of the picture which the Tribunal took into account.

Thirdly, Miss Chudleigh submits that there was no breach of contract on the part of the Appellant in imposing the Capability Procedure regime expressly provided for in the contractual procedure.

It seems to us that the Tribunal were concerned not about the fact of a procedure but the method of its application and that formed part and parcel of the picture which emerged to this industrial jury, that the actions of the employer were such as to destroy the necessary bond of trust and confidence between employer and employee.

Finally, we remind ourselves of our jurisdiction to interfere with decisions of Industrial Tribunals. The Court of Appeal made clear in Pedersen v Camden London Borough Council [1981] ICR 674 that, having identified the relevant term of the contract, that being a matter of law, it was then essentially a question of fact for the Industrial Tribunal as to whether or not the employer was in breach of that term and whether that breach was a fundamental breach going to the root of the contract. That approach has been endorsed in this Tribunal. See particularly the judgment of Browne-Wilkinson J in Woods v W M Car Services (Peterborough) Ltd [1981] ICR 666 where this Tribunal indicated that, but for the approach laid down by the Court of Appeal in Pedersen, they would have overturned the finding of the Industrial Tribunal in that case.

For ourselves, on the facts of this case, we can see no grounds for overturning the Industrial Tribunal's decision. There is no error of law and in these circumstances the appeal will be dismissed at this preliminary stage.