At the Tribunal | |
Before
HIS HONOUR JUDGE C SMITH QC
MR E HAMMOND OBE
MR J A SCOULLER
APPELLANT | |
(2) MANAGEMENT CO-OPERATIVE LTD |
RESPONDENTS |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
For the Appellant | MR R BEASLEY (Representative) |
JUDGE C SMITH: This is an application by Mr Beasley, on behalf of Mr S E Heath, for leave to proceed to a full hearing of an appeal against a decision of an Industrial Tribunal at London South in February and April 1998, of which extended reasons were sent to the parties on 7 August 1998, whereby the Industrial Tribunal held unanimously that the Appellant had not been constructively dismissed.
The Industrial Tribunal eventually identified the crucial issue for them to determine as being whether the Respondent employers, who are a tenant management co-operative for housing in South London, had or had not fundamentally breached the Appellant's contract of employment with them as a housing officer, which he had held since March or April 1995 until he left that employment with an effective date of termination of 18 August 1997.
We remind ourselves that the Appellant only has to show an arguable ground of appeal to be allowed to a full hearing. It must, of course, be an arguable point of law. We have carefully taken into account everything that has been placed before us by Mr Beasley, very helpfully, but we have also had to bear in mind that we cannot go behind the facts as found by the Industrial Tribunal, unless there would be any reason to think they were perverse findings of fact and in our judgment that is not the position here.
First of all we must look at the facts as found by the Industrial Tribunal. They set the facts out in paragraph 5 of their decision. They found that it was a term of the Appellant's contract that there should be an annual appraisal and that there was an appeal against the initial appraisal decision. They also found that it was a requirement of the appraisal scheme that new managers should not carry out appraisals until they had completed their probationary period. Those findings of fact are to be seen at sub-paragraphs 5(ii) and 5(iv) of their decision.
They found that no annual appraisal had been carried out on the Appellant by April 1997 (the year was running from 1 April each year until the end of March). The Industrial Tribunal found it was on 21 April 1997 that Miss Kate Targett became the Appellant's line manager and meanwhile Mr Peck, the director, had left on 16 February 1997 and been replaced by Mrs Emma Forsythe, who had joined on 20 January 1997.
The Industrial Tribunal then went on to make findings that the Appellant had been pressing for his appraisal because the year had gone past once 1 April 1997 had been reached, and Mrs Forsythe, on the findings of the Industrial Tribunal, took the view that he might appeal. Accordingly she decided that Miss Targett would carry out the appraisal with an appeal being heard by herself. The Industrial Tribunal found as a fact that Miss Targett had previous experience of appraisals in her former employment.
The appraisal took place on 10 July 1997 and was treated by Miss Targett, on the findings of the Industrial Tribunal, as being for the year 11 July 1996 to 10 July 1997. The Industrial Tribunal found, importantly, in our judgment, at sub-paragraph (vii) that the Applicant made no complaint at the time about Miss Targett carrying out the appraisal. Then the Industrial Tribunal went on to say that her appraisal had the result that the increment was deferred for a period of 3 months to see if the Applicant's performance improved. The Applicant - the Appellant before us - although very aggrieved did not appeal the decision or invoke the grievance procedure but then, on 28 July, sent a memo to Mrs Forsythe resigning from his employment. It was only on his last day in the office, on 15 August 1997, that, according to the findings of the Tribunal, he put in a complaint, in a sealed envelope, about the appraisal.
Those were the findings of the Industrial Tribunal. They went on to make certain findings as set out under headings (1), (2) and (3) in their decision. Importantly, they found as a fact that the Appellant had already decided to leave his employment with the Respondents prior to his appraisal. That is another finding of fact which we cannot go behind.
However, ultimately the Industrial Tribunal clearly placed their decision on the footing that there was no fundamental breach of conduct. They, in our judgment, correctly referred themselves to the leading authority on the matter of whether a breach of contract is or is not sufficiently fundamental to give rise to constructive dismissal, namely, the very well known case of Western Excavating (EEC) Ltd v Sharp [1978] IRLR 27 and they correctly cited the test from that case, namely whether the breach of contract was a significant one going to the root of the contract and showing that the employer no longer intended to be bound by one or more of the essential terms of the contract. The Industrial Tribunal then went on to say that they were unanimously of the view that there was no fundamental breach despite the facts found by them measured against that test.
In our judgment this was essentially a matter for the Industrial Tribunal to decide. We accept and agree with the point made by Mr Beasley that, first of all, no appraisal was carried out during the time when it should have been carried out, in the sense that April 1997 was allowed to go by without any appraisal being carried out and in that way there was a technical breach of contract. There was also, we accept, and this is despite the findings of the Industrial Tribunal, a more important breach of contract in the fact that the appraisal was carried out by somebody still within their probationary period. But the net result of that was simply that the increment was deferred for a few months in circumstances where the Industrial Tribunal has found as a fact that there was no complaint made at the time by the Appellant about Miss Targett carrying out the appraisal, despite the fact that she was still in a probationary period.
In all those circumstances we have concluded that, at the end of the day, it must be for the Industrial Tribunal, sitting as an industrial jury, to decide, provided they set the correct legal test, which they have in this case, as to whether or not any breach of contract is sufficiently serious and important to amount to a fundamental breach. In our judgment here they were entitled to conclude, in all the circumstances of this particular case and on the facts found by them, that this breach of contract did not measure up to the test set by Western Excavating (EEC) Ltd v Sharp so that it was not a significant breach showing that the employer intended no longer to be bound by one of the more essential terms of the contract. All that had happened, in reality, was that the appraisal had taken place a month or two later than it should have done and that the appraisal itself had resulted in an increment being deferred for a few months in circumstances where, although admittedly the appraiser was a probationer manager, no objection had been taken on the findings of the Tribunal to Miss Targett carrying out the appraisal. In all those circumstances we find that the Industrial Tribunal's decision is one that they were entitled to make and accordingly this application will have to be dismissed.