United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D DEES (SOLICITOR) Messrs Charsley Harrison The Old Court House Ascot Berkshire SL5 7ER
For the Respondent


 


JUDGE PETER CLARK: This is an appeal by Ms Warren against a decision by the London (South) Employment Tribunal dismissing her complaint of unfair constructive dismissal against her former employer, the Respondent, F C Brown (Steel Equipment) Ltd. That decision with extended reasons, promulgated on 28th October 1998 followed a hearing held on 15th October.

The Appellant was employed by the Respondent as a Sales Office Supervisor from 26th February 1996 until her resignation effective on 29th May 1998. The circumstances leading to her resignation, the Tribunal found, were these. The Appellant was a non-smoker. From June 1996 she worked in an open-plan office. There were 13 employees in that office of whom 6 were smokers. She complained that exposure to cigarette smoke was injurious to her health. Her immediate manager from 1st November 1997 was Mr David Williams. He said that he would look into her complaint. In late November the Appellant and another member of staff in the office had an argument over whether fans should be on or off. She wanted them on. As a result of her complaints Mr Williams conducted a survey of the staff as to their attitude to smoking. 11 out of the 13 opposed a smoking ban. Mr Williams contacted ventilation contractors and was quoted between £4,600 - £5,600 to install a ventilation system. Even then, it would not guarantee a smoke-free environment.

On 12th March 1998 Mr Williams held a meeting in order to try and seek a solution. Mr Blackwell, the Sales Director, Mr Dawson, Human Resources Manager and all members of the sales office staff attended. He hoped to obtain a consensus. This proved impossible. The Appellant and one other employee insisted on a smoking ban. On 19th March Mr Williams suggested a solution by moving the Appellant nearer to the door and next to a window. She agreed and made the move but other employees complained that the open window was draughty and they closed the door.

Subsequently, Mr Williams and Mr Blackwell met and decided to find another job for the Appellant at the same rate of pay in a non-smoking office. On 9th April Mr Williams went on holiday. The Appellant went to see Mr Blackwell who was, she said, very sympathetic. His evidence was that he offered her a job in a smoke-free office and she agreed to accept it. Her evidence was that she felt that she could not move without an official announcement. She was not prepared to move without one. She told Mr Blackwell she would wait until Mr Williams returned from holiday.

On 17th April Mr Blackwell instructed the IT Manager to install a modem for the Appellant in her new smoke-free office. When he, Mr Blackwell returned to the office two days later, he heard that the Appellant herself had postponed the completion of that installation. When Mr Williams returned from holiday he told the Appellant that her move could not take place for 6 or 7 months. This is borne out by a memorandum from Mr Williams to Mr Blackwell proposing that the Appellant's and other changes should be effected on 1st October 1998. She was greatly upset by this news.

On 30th April Mr Williams met a deputation of staff complaining that the Appellant had insisted on keeping the door open, thereby causing draughts. He decided to call a meeting of staff the following day at which, if no consensus emerged, he would impose a solution. He tried to speak to the Appellant who was upset and refused to talk to him. She decided that enough was enough. Management was not prepared to resolve the position. When Mr Williams arrived for work on 1st May he found the Appellant's letter of resignation on his desk.

It was the Appellant's case before the Tribunal that the Respondent was in fundamental breach of their implied duty to provide and maintain a reasonably safe working environment in arrangements they made regarding smoking, such as to entitle her to resign in circumstances amounting to constructive dismissal. The Tribunal considered the decision of this Employment Appeal Tribunal in Waltons & Morse -v- Dorrington [1997] IRLR 488, where this Tribunal upheld an Employment Tribunal's decision that the Employer had repudiated the Contract of Employment by failing to impose a smoking ban and to deal timeously and properly with the Applicant's complaints about smoking on the facts of that case.

The Tribunal distinguished that case and found that here, the Appellant had been given the opportunity to move to a new job in a smoke-free office, but had turned down the opportunity because she was not prepared to move without a formal announcement. The Respondent had acted properly on her complaints. The claim was dismissed.

We remind ourselves that on appeal, our jurisdiction is limited to correcting errors of law. In Pedersen -v- Camden Council [1981] ICR 674, applied in Woods -v- W M Car Services (Peterborough) Ltd [1982] ICR 693, the Court of Appeal has stated that the question as to whether the Respondent is in repudiatory breach of the Contract of Employment is essentially one of fact for the Employment Tribunal. In this appeal Mr Dees takes essentially two points. First, that the Tribunal's decision on the facts of this case was perverse within the meaning of that expression as explained by Mummery J in J Stewart -v- Cleveland Guest (Engineering) Ltd [1994] IRLR 440, 443. We have considered that submission but we reject it. It seems to us, on the facts as found, that it was open to the Tribunal to conclude first, that the Employer had taken all reasonable steps to deal with the Appellant's grievance whilst taking into account the views of other employers. Secondly, that it was entitled to pay particular attention to the fact that the Appellant herself prevented a move to a smoke-free office. Mr Dees submits that rather than hold the Appellant responsible, it was the Respondent's failure to make the necessary announcement. It seems to us that that was a matter of fine judgment for the Industrial Jury. It is not a matter for us.

Secondly, he submits that the Tribunal failed properly to distinguish this Employment Appeal Tribunal's decision in Waltons & Morse -v- Dorrington. We disagree. It seems to us that in Dorrington, this Employment Appeal Tribunal upheld the findings of the Employment Tribunal which showed that the Employer there had failed to take any proper steps to deal with the Employee's grievance about exposure to smoke. That is not this case as the Tribunal found and we think that insofar as any principle emerges from Dorrington, the Tribunal in the instant case has not fallen foul of that principle. In these circumstances we have concluded that this appeal raises no arguable point of law to go forward to a full appeal hearing and that accordingly it must be dismissed.