United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr W Brown (of Counsel) North Lewisham Law Centre Ltd 28 Deptford High Street London SE8 4AF


 


JUDGE JOHN BYRT QC: This is a preliminary hearing in an appeal against a decision promulgated in June this year by an Employment Tribunal sitting at Southampton. By that decision they held that the employee, Mr Oparah had not been constructively dismissed and so his dismissal was not unfair. Mr Oparah appeals that decision.

The facts are that Mr Oparah worked for the Respondents for a period from 1989 until September 1997. In February 1995 he was the manager of a store in Addiscombe. Mr Saunders was his area supervisor. Unhappily in July of 1996, some stock went missing from that store. The result was that Mr Oparah was demoted and sent to Clapham where he was given the task of carrying out general duties. In November of that same year he was asked to take over as manager of the store at Hook which had been doing very badly. His case is that when he went there, he was promised a salary increase from the £12,750 p.a. he was getting to £15,000 for the period of time he was there.

By January 1997, doubtless in part as a result of the efforts of Mr Oparah, Hook had become the second most successful of the eleven stores owned by the Respondents.

What then happened was that he was asked to train as manageress a woman called Jette Evendon. He obliged by doing that, but when she completed her training, the Respondents informed him that Miss Evendon was to take over the store in Hook. He was sent to a store in the Walworth Road to work there as a general hand, under a manager who was junior in experience to him. Mr Oparah, understandably, we think, felt aggrieved about this obvious demotion and complained that he had not even been paid the increased salary he had been promised when he went to Hook.

In April he was moved to East Dulwich; in May he was moved to Norbury. All the while he was writing letters of complaint. On 24 June 1997, a grievance hearing was held. Mr Taylor conducted that hearing. Having heard what Mr Oparah had to say he conceded that Mr Oparah had not been treated fairly. On 26 June, he wrote a letter to him in which he set out the way in which he thought his grievance should be dealt with. In that letter he said:

"I am writing to confirm the verbal offer I made to you at the end of your grievance hearing on Tuesday. My offer in full and final resolution of your grievance is as follows:

(i) That you be paid a sum equivalent to the difference in salary between £12,500 and £15,000 p/a in respect of the time you were based in the Hook Store.

(ii) That you have the option to change your work location away from your current location.

(iii) That your status be that of an Assistant Manager, to reflect the actual position you currently occupy in our Norbury store."

In our view, that letter reflects the sentiments of Mr Taylor as recorded in the minutes of the grievance hearing:

"Yes, but (he) may move. Jude [that's Mr Oparah] is a competent Assistant Manager, but not a Store Manager.

(We offer) Move to a new Region.

Compensate JO [that's Mr Oparah] for period in 081. [That is Hook].

£15K for the period he was there.

Hasn't been treated fairly, But not for Court.

"Is this the environment for you - (you) need to decide.""

Mr Brown, arguing the case for Mr Oparah, has submitted that those minutes of the grievance hearing, together with what is set out in the letter of 26 June, provided some evidential confirmation that the Respondents did promise Mr Oparah they would pay him the increased salary during that period of time he was at Hook.

The Tribunal's finding is that the offer of an increased salary from the £12,750 to £15,000 p.a. was an offer of compensation for the fact that he had been treated unfairly. It was a term in a package, put together to salve Mr Oparah's sense of grievance. Thereafter, Mr Oparah wrote back in reply. There was some negotiations about the terms being offered by Mr Taylor. On 21 July, Mr Taylor made his final offer. His letter of that date gave Mr Oparah five days in which to sign a grievance resolution, signifying that he accepted the package.

On 25 July, that is four days later, Mr Oparah wrote back refusing to sign the package. He tried to negotiate an alteration in the package, but Mr Taylor refused to be moved. In the result, on 16 August, Mr Oparah resigned and so ended his employment with the Respondents.

Mr Oparah appeals the Employment Tribunal's conclusion that Mr Saunders, the area supervisor, had not promised Mr Oparah an increase in his wage whilst working at Hook. What was offered, was a compensatory package, not a salary increase. And Mr Oparah had declined that offer.

Mr Brown submits that that conclusion is a perverse finding. It is accepted it is a finding of fact and that the only way in which this Tribunal could disturb it, is if we were prepared to find that the conclusion of the Tribunal was so outrageous, so absurd, so illogical that we could say that no reasonable Tribunal could have come to it. Mr Brown we must say has argued his case with commendable realism. He appreciates just how difficult it is for this Tribunal to accept his submission. We have considered this matter with considerable sympathy because all of us would have agreed with Mr Taylor when he observed that Mr Oparah has not been treated fairly. However, at the end of the day, we are unable to say there is here an arguable case on perversity. We would be raising Mr Oparah's hopes falsely were we to give him leave to go forward to a full hearing when in our hearts we knew that there was nothing there to be argued.

Accordingly we have decided that it would be wrong for us to allow this matter to go forward to a full hearing on this issue, and so we dismiss the appeal.