United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS P WALSH (Solicitor) Messrs L Bingham & So Solicitors 4 Carmelite Street London EC4Y 0BN
For the Respondents	MISS S MOOR (of Counsel) Messrs Watmore & Co Solicitors Chancery House Chancery Lane London EC4Y 0BN


 


JUDGE HICKS QC: Ms Blackmore, the applicant and appellant, was a student and part-time catering assistant at the North West Kent College of Technology, the respondent employer, and it is of course in her capacity as a part-time catering assistant that she is concerned in these proceedings. She had been employed in that capacity from 25th October 1995 until she resigned on 29th April 1997 in circumstances with which the tribunal below and now we were and are concerned.

Part of her duties involved refilling vending machines at the College Refectory with cans of soft drinks and cups containing dried ingredients for hot drinks and confectionery. It is implicit in one of the tribunal's findings that of those commodities the cans of soft drink would be the heaviest and perhaps most awkward to deal with. All those supplies had to be obtained from the stockroom, where they were kept in boxes on shelves, and she had received instructions not to lift any boxes above shoulder height. Nevertheless at some stage, which must presumably have been in about the middle of September 1996, she did injure her shoulder, arm and neck while manoeuvring a box of cups with dried ingredients on the shelf, which she found awkward, as the tribunal find. It is convenient to deal with the subsequent history by reference to the tribunal's decision, where the matters are set out. They continue after referring to that incident to say:

"6 ... She was on sick leave for about eight weeks, and returned to work on 25 November 1996. She had a meeting with Mr Smith, the Personnel Manager, on 11 December to discuss her return and the duties that she was able to undertake. Mr Smith confirmed their discussion in a letter dated 16 December 1996. He wrote that:

"Your immediate line manager, Mr G Clarke, is to provide you with some alternative duties to replace those which you are able to cope with as a result of your recent injury. If you cannot return to your normal duties by 3 January 1997, you will be required to attend a medical with the corporation's adviser in order that an assessment can be made."

Mr Smith also said that he would contact Ms Blackmore during January in order to discuss whether a medical appointment should be made.

7 What happened in practice, was that in her absence Mr Clarke took over the filling of the vending machines. He found that he could do it much faster than Ms Blackmore. He therefore arranged that he would continue to do this task, but that the evening shift in the Refectory, which was Ms Blackmore and her colleague, Mrs Bushell, would carry out this task in his absence."

I interpose that although it might be slightly ambiguous as to whether "in his absence" meant during shifts when he was not there, or only when he was not on duty at all, Miss Moor for the respondents accepts that, in the context of what emerged at the hearing before the tribunal, the truth was that the arrangement contemplated that the applicant would not have to do this task unless Mr Clarke was actually away on leave or for some other period which meant that he was not available to do it on any of the shifts. The decision continues:

"There was no follow-up discussion with Ms Blackmore during January, but it was assumed that as she had not complained, that she was fit enough to return to her normal duties. Ms Blackmore told the Tribunal that she read the letter as a variation of her job description which meant that she longer had to fill the vending machines until she indicated that she was well enough to do so. We find that the letter is quite clear that it was expected that she would return to her normal duties by 3 January 1997, and, only if she could not, would there be further enquiry into her health. Whilst we find that it was unfortunate that nothing was said specifically to Ms Blackmore by Ms Smith as indicated in his letter, that the contents of the letter and the deadline of 3 January were quite clear.

8 ...

9 On 14 April Mr Clarke went on compassionate leave for approximately 10 days. He was therefore not available to fill the vending machines. They quickly emptied and there was a dispute about who should undertake the filling of them. There were more catering assistants on the day shift at the Refectory and Ms Blackmore complained to Mr Holland that they should be filling the vending machines as she and Mrs Bushell were too busy on the evening shift. Mr Holland asked Ms Blackmore to carry out this task, and she refused. We find that at this stage her reason for refusing, which she conveyed to Mr Holland, was that she was too busy and that she did not mention her previous injury.

10 Mr Holland explained that he had arranged for the day shift to fill the soft drinks machine, as this would involve the heavier products, and that he had done this in view of her previous injury. Despite this, Ms Blackmore continued with her assertion that they day staff had more time to undertake filling the machines and she refused to do it. Mr Holland took the view that the deployment of staff was a management decision and that his request to Ms Blackmore was reasonable and within her job description. He advised her that a continuation of her refusal would mean potential disciplinary action. He subsequently checked the till rolls to assess the workload of the day and evening shifts and he was satisfied that his decision was correct.

11 There was later that day a meeting with the Vice-Principal, Mr Jones, Mr Smith, Mr Holland and Ms Blackmore to review the position. Ms Blackmore was given an opportunity to withdraw her refusal to carry out the work. She confirmed that she was refusing to comply with the instruction and sought to raise other reasons, her previous injury as well as the perceived lack of time on her part of the evening shift staff. She was told that a formal disciplinary hearing would be arranged and that she would be suspended from duty meanwhile. ..."

The decision then goes on to deal with other matters not part of the chronological history. At paragraph 14 the tribunal conclude:

"14 Having considered her position, Ms Blackmore resigned on the day of the disciplinary hearing at 1.00 p.m.. The hearing was due to start at 2.00 p.m.. The hearing therefore never took place."

We note first, as appears from the dates which I gave for the duration of Ms Blackmore's employment, that she had less than two years' service. It followed, and must have been the background to the entire hearing before the tribunal, although it is not specifically mentioned in the tribunal's decision, that there were only very limited grounds available to her on which to complain of unfair dismissal.

What she in fact relied upon, as the tribunal state, were ss. 44, 100 and 104 of the Employment Rights Act 1996. Although ss. 44 and 104 were therefore mentioned, and although indeed they are referred to in the grounds of appeal, we really do not need to spend time on them; it is manifest that they have nothing to with this case and the whole thrust of both the hearing below and of the appeal before us, in our view rightly, centred on s. 100. It is provided by s. 100(1) of the Act that:

"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that-

..."

Although we need not refer to the legislative provisions, it is common ground that the reasons which follow under that sub-section for unfair dismissal, if found, are available to a complainant who has not served two years in employment. The relevant heads of s.100(1) in this case - those relied upon by the applicant - were (d) and (e):

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which she could not reasonably have been expected to avert, she left (or proposed to leave) or (while the danger persisted) refused to return to her place of work or any dangerous part of her place of work, or

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, she took (or proposed to take) appropriate steps to protect herself or other persons from the danger."

Since this was a resignation the question whether there was a dismissal turns on s. 95(1)(c) of the Act which reads:

"(1) For the purposes of this Part an employee is dismissed by her employer ... if-

(c) the employee terminates the contract under which she is employed (with or without notice) in circumstances in which she is entitled to terminate it without notice by reason of the employer's conduct."

It is common ground and the authorities are quite clear that an employee is entitled to terminate the contract if the employer's conduct amounts to a fundamental breach of the contract of employment, and that is the test to be applied in cases under s. 95(1)(c), which are commonly called cases of constructive dismissal.

So the questions here were: first, was there a breach; second, if so, was it fundamental; third, if so, was that the effective reason for the resignation; and fourth, if so, was that a reason within s. 100(1)(d) or (e)?

The Industrial Tribunal found that there was no fundamental breach. They did not deal separately with the issue whether there was a breach at all, but that is of no consequence. They found that the alleged breach was not the main reason for the applicant's resignation. They found that it was not a reason within s.100.

I put it that compendiously; the passages in which they make what plainly are findings to that effect are: first, at the beginning at paragraph 28 of their decision, where they say:

"We concluded that there was no fundamental breach of contract by the employer which entitled her to resign, ..."

At the beginning of paragraph 27 they say:

"We concluded that the main reason for Ms Blackmore's refusal to fill the vending machine was that she felt was too busy on the evening shift, and that others should do it. We concluded that her previous injury was a secondary consideration for her. ..."

As to s. 100, going back to paragraph 28, they find that she had not been in any imminent danger and that she did not reasonably believe that she was in serious or imminent danger. Those findings plainly follow the statutory wording.

The grounds of appeal start with (a):

"The Industrial Tribunal erred in deciding that the Appellant had not been constructively dismissed, when the Respondent unilaterally varied the contract of employment relating to the work which the Appellant was required to carry out without reasonable cause."

In the course of the development of Miss Walsh's argument for the appellant it became apparent that one of the ways in which that and indeed part of another ground were put was that the tribunal misconstrued the relevant paragraph of the letter of 16th December 1996, which I have read, and we do give leave, the whole argument having been conducted on the hypothetical basis that leave might be given, for the addition of a ground (h) as follows:

"The Tribunal erred in law in failing to construe the letter of 16th December 1996 as requiring the Respondent, before expecting the Appellant to resume the task of refilling the vending machines, to arrange a medical assessment."

I have read the relevant paragraph of the letter. The crucial words are:

"If you cannot return to your normal duties by 3 January 1997, you will be required to attend a medical with the corporation's adviser in order that an assessment can be made."

The issue of construction, which is a question of law and therefore one which we must address, is whether, as the tribunal in effect held, the initiative lay with the employee, Ms Blackmore, to raise the question if she was unable to resume normal duties by 3rd January 1997, or whether there was a duty on the employer to arrange for a medical assessment before asking her to resume full duties.

We have come to the conclusion that the tribunal was right in its construction, for two main reasons. The first is that it was peculiarly within the employee's knowledge whether she was unable or felt unable to return to normal duties and, therefore, for her to raise the question. The second is that it was natural and appropriate in the context of employment that it should be at her option whether she chose to do so or not. There might be circumstances in which an employee would have reasons for not raising the question and would be entitled not do so. We therefore consider that the tribunal was correct in its construction of the letter, although for reason which will appear later we are equally of the view that that cannot in the end affect the outcome of this appeal, even if the tribunal and we were and are mistaken on that point. One of those reasons is that this paragraph (a) does not go to a complaint within the jurisdiction of the Industrial Tribunal. Unilateral variation of a contract is indeed a breach, and in many circumstances it may be a fundamental breach. If the employers had required Ms Blackmore to keep the catering accounts then it may well be that that would have been a breach and a fundamental breach of her contract, but a breach of that kind, by a unilateral variation of a contract, is not a matter within s. 100 and not therefore a matter which an applicant with less than two years' service could raise, or which indeed for that reason Ms Blackmore did raise as a ground of her complaint to the Industrial Tribunal.

Ground (b) alleges that:

"The Industrial Tribunal erred in determining that the Appellant had not been constructively dismissed when the Respondent acted in breach of the Manual Handling Operations Regulations 1992 and the Health & Safety at Work Act 1974. ..."

That ground continues with a great deal of further particulars, including an allegation that the appellant had been diagnosed as suffering from spondylosis. It returns to the ground (a) point about the variation of duties and also raises other matters.

None of those matters, as we understand it, was raised or in evidence below, or else they are matters which we have already dealt with in dealing with ground (a). Therefore ground (b) cannot succeed.

Ground (c) reads:

"Despite the fact that the Respondents knew of the Appellant's state of health and that the stock room was kept in a potentially dangerous condition, which was likely to adversely affect the Appellant. The Industrial Tribunal erred in considering that the Appellant was not constructively dismissed, when she was pressurised to carry out work which would expose her to danger of injury."

But the Industrial Tribunal did deal with the issue whether the applicant was in imminent danger, the s. 100(1) test. There was plainly evidence upon which they could do so. Whether they were right or wrong in their finding is a question of fact. There is no error of law involved and no ground on which this tribunal could interfere with that finding.

Ground (d) reads:

"The Industrial Tribunal erred in law in failing to consider that the suspension to which the Appellant was subjected as a result of her failure to accept a breach of the contract of employment did not amount to a fundamental breach of contract."

The same objections as to (a) and (b) apply. This is not a s.100 point and could not have been within the jurisdiction of the tribunal. Moreover, as Miss Walsh accepted, in fact it was never raised before the tribunal below, no doubt for that very reason.

Ground (e) reads:

"The Industrial Tribunal also erred in failing to find that the employee had been constructively dismissed when she had been informed by a senior member of staff that she was going to be dismissed in any event if she attended the Disciplinary Procedure, despite the requirement for a fair procedure to be adopted."

That must be a reference to the events dealt with in paragraph 13 of the tribunal's decision, which was not part of the history that I read earlier, and which I shall therefore read:

"Ms Blackmore sought advice from one of her lecturers [this was between the meeting with the Vice-Principal and others and the date fixed for the disciplinary hearing], and he spoke to Mr Smith about the basis of the disciplinary proceedings. We accept Mr Smith's evidence that he explained all the possible outcomes of the disciplinary hearing ranging from no action at all to dismissal. Ms Blackmore claimed that she had been told by her lecturer that she would be dismissed at the hearing. We do not accept that a decision had been made about the outcome of the hearing."

The position, therefore, is that when the ground of appeal states that she had been so informed by a senior member of the staff, if that means the lecturer, then plainly the lecturer was at that stage acting in the capacity of her adviser, not as part of the employer's management. Nothing he said could be of any relevance except in so far as it was hearsay evidence of what he had been told. If by "senior member of staff" the reference is to Mr Smith, then there was hearsay evidence on the one side, because the lecturer himself was not called before the tribunal, and on the other side Mr Smith's denial, which the tribunal accepted, as they were perfectly entitled to do. It is a question of fact on which they made that finding and there was no error of law involved.

Ground (f) alleges:

"The Industrial Tribunal erred in finding that the Respondents had not breached Section 100 of the Employment Rights Act 1996. ..."

The ground goes on to refer again to spondylosis, which was not raised below. The ground again alleges that:

"... she reasonably believed to be a serious and imminent danger and chose to take appropriate steps to protect herself from the danger by refusing to carry out the work."

That is of course the second limb of the s.100 point, moving from the objective question "was there danger", which has already been dealt with, to the question whether she reasonably believed herself to be in serious and imminent danger. The tribunal made a finding adverse to her on that. They plainly had evidence on which they were entitled to do so. There is therefore no error of law.

Ground (g) refers to ss. 44 and 104 which, as I have said already, we need not linger over.

Finally there is ground (h), which has now been added by leave and which I have already referred to.

In so far as those matters were enlarged by further points or developed in the skeleton or oral argument, the first and perhaps most important point is that in Miss Walsh's submission the tribunal failed to apply the correct test in addressing the question whether the alleged fundamental breach of contract was the reason for Ms Blackmore's resignation.

Since the tribunal found there was no fundamental breach and we have found no ground on which they can be said to be in error of law in that respect, this point of course is not strictly reached, but nevertheless we deal with it.

The authority on which Miss Walsh relied was the case of Jones v F Sirl & Son Ltd [1997] IRLR 493. The facts briefly were that the applicant/employee was a manageress in a small family firm. The employers unilaterally made a number of changes to her terms and conditions of employment, the last and perhaps precipitating one being that she was told that one of the directors would take over responsibility for the accounts, which constituted a significant part of her duties. That happened on 25th October 1993. On 17th November 1993 she was approached by another employer and offered a job and decided to accept the offer and then handed in her notice. The Industrial Tribunal had found that the employer's action amounted to a series of breaches of contract. By inference, it would seem, they found them to be fundamental. But they found that she had not proved that she had resigned in consequence of those breaches. The Employment Appeal Tribunal dealt with that matter in paragraph 10 of their judgment and said this:

"We turn therefore to the main issue on the appeal, namely whether the finding of the industrial tribunal that the appellant had not established that she had left in consequence of the breach was erroneous, in that they had applied the wrong test in law. ... in order to decide whether an employee has left in consequence of fundamental breach, the industrial tribunal must look to see whether the employer's repudiatory breach was the effective cause of the resignation. It is important, in our judgment, to appreciate that in such a situation of potentially constructive dismissal, particularly in today's labour market, there may be concurrent causes operating on the mind of an employee whose employer has committed fundamental breaches of his contract of employment entitling him to put an end to it. Thus an employee may leave both because of the fundamental and repudiatory breaches, and also because of the fact that he has found another job. In such a situation, which will not be uncommon, the industrial tribunal must find out what the effective cause of the resignation, depending on the individual circumstances of any given case."

The facts there of course were different, in particular the nature of the two operative causes, but the test is said to be what was the effective cause of the resignation. This tribunal, we are told, did not have Jones v Sirl cited to it. They expressed the tests they applied in the words of a finding as to what was the "main" cause. In our judgment, they were substantially asking themselves the right question. It would be quite wrong for us to find them in error in law because of any marginal semantic difference between the words main and effective, not least in a case where they had not had their attention drawn to the precise words used in the leading authority. We reject the submission that they were in error in that respect.

A number of other points are raised in Miss Walsh's skeleton argument, but we have dealt with those which were in any way seriously developed. The rest, in so far as they do not amount to those same points, are challenges to the tribunal's findings of fact, no error of law in that respect being identified, or raise matters which were not raised below, in most cases, apparently, for the very good reason that they would not have been within s.100 but would have been independent allegations of breach, not open to a complainant with less than two years' employment.

We do not, therefore, find any of the grounds of appeal made out. But apart from those detailed grounds and our detailed reasons for rejecting them, and standing back a little to look at the overall picture, the situation here was that after the investigatory meeting an appointment had been made for a disciplinary hearing. Had that disciplinary hearing proceeded, a number of matters might have occurred. Certainly, if it was conducted fairly and thoroughly, one might expect that the question whether there was any medical or safety reason why Ms Blackmore should not be required to refill the vending machines would have been considered. She might have asked for, or the employers might have asked her whether she wished to have, the medical assessment which the letter of 16th December had contemplated if she was unable to resume full duties. Certainly, at the end of the day, the employers would either have not found any disciplinary offence against her established, or if they had found it established and were minded to dismiss her, they would either have done so forthwith or given her, as it were, a last chance to accept instructions or be dismissed, and she might then have resigned. In all those circumstances, if the eventual result was termination of her employment, any complaint of unfair dismissal based on s. 100 would have had to come straight to the crucial questions of whether there was imminent danger, whether she reasonably believed that the danger was serious and imminent, and whether the employers were in fundamental breach in insisting that she nevertheless do the work. By resigning before the disciplinary hearing had taken place the applicant terminated the employment at a point when there was no serious and imminent danger of any conceivable kind, because the employers were not saying 'go and do the work or you are out', they were saying 'we are proposing to conduct a disciplinary enquiry into this question'. There was, therefore, no basis on which any tribunal could have found imminence of the kind which is contemplated by s.100, or any reasonable belief in it.

For those reasons, but also and in particular for the detailed reasons which we have given in dealing with the grounds of appeal as formulated and argued, we conclude that this appeal must be dismissed.