United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P LEIGH-MORGAN (of Counsel) Messrs Weight Wolny & Trusler Solicitors 81 Moulsham Street Chelmsford Essex CM2 0JD
For the Respondents	MR S WILSON (of Counsel) Messrs Cartwrights Solicitors Marsh House Bristol BS99 7BB


 


JUDGE D M LEVY QC: This is a sad appeal and we hope that Mr Gartside, the Employee Relations Manager of the Respondent, takes to heart the comments made by the Tribunal sitting at London (North) in giving their decision, that the behaviour of the Respondents in this case was appalling.

The facts are these. The Appellant, Ms Joel, was employed in the Personal Shopping Department at the House of Fraser Stores Ltd, as an Assistant Manager. Her mother fell gravely ill. She made it known that she wished to have time off. Her request was not dealt with timeously. Eventually she wrote a letter to which she received no reply. Later there was a meeting. At the meeting it was told that she might reduce her hours, but instead of working in the Personal Shopping Department, she would have to work on the floor of the store. She took that to mean that she was to work on the floor of the store not only during her mother's, alas, terminal illness, but while she remained in the employment of the Respondent. She therefore left its employ. She claimed that she had been constructively dismissed and made a complaint by an application to an Industrial Tribunal dated 24 November 1997.

Her application was heard, as we said, by a Tribunal sitting at London (North) on 24 February and 24 March 1998. The Tribunal's decision was sent to the parties on 27 March 1998. The unanimous decision of the Tribunal was that she was not constructively dismissed. They dismissed her claim for unfair constructive dismissal. From that decision Mr Leigh-Morgan, who appeared below, appeals for Ms Joel today. He has submitted, on the findings made by the Tribunal, that the decision was perverse. He says, by reference to the case of Malik v Bank of Credit and Commerce International SA [1997] IRLR 462, that the term to be implied in the contract of employment in the context of Lord Steyn's speech, should have led to a conclusion that there had been a breach of the implied term of the contract that an employer was identified by Lord Steyn in his speech. Having said:-

"There was some debate at the hearing about the possible interaction the implied obligation of confidence and trust with other more specific terms implied by law. It is true that the implied term adds little to the employee's implied obligations to serve his employer loyally and not to act contrary to his employer's interests. The major importance of the implied duty of trust and confidence lies in its impact on the obligations of the employer .... "

Lord Steyn made reference to an article by Mr Douglas Brodie and continued::

"And the implied obligation as formulated is apt to cover the great diversity of situations in which a balance has to be struck between an employer's interest in managing his business as he sees fit and the employee's interest in not being unfairly and improperly exploited."

He then referred to a concession made by Counsel for the employer that the implied obligation was subject to three limitations:

"(1) That the conduct complained of must be conduct involving the treatment of the employee in question;

(2) That the employee must be aware of such conduct while he is an employee;

(3) That such conduct must be calculated to destroy or seriously damage the trust between the employer and employee."

Having referred further to Mr Brodie's article, Lord Steyn continued:

"In assessing whether there has been a breach, it seems clear that what is significant is the impact of the employer's behaviour on the employee rather than what the employer intended. Moreover, the impact will be assessed objectively."

Mr Leigh-Morgan submitted that, given the findings of the Tribunal, viewed objectively, there should have been seen to be a breach of the implied term on which the Appellant was entitled to rely.

Mr Wilson, who did not appear below, referred us to the decision Spafax Ltd v Harrison [1980] IRLR 442, where the Court of Appeal approved a well known passage in an earlier case where Lord Denning in Western Excavation (EEC) Ltd v Sharp [1978] IRLR 27, set out what was a breach of contract which entitled an employee to say that it had been repudiated. The passage it was referred to is in these terms:

"THE CONTRACT TEST

On the one hand, it is said that the words of subsection (c) express a legal concept which is already well settled in the books on contract under the rubric 'Discharge by breach'. If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. ..."

On the analysis which the Industrial Tribunal made in this case, he submitted they were entitled to come to the conclusion that there had not been a breach of contract by the employer which went to the root of the contract. They were therefore entitled to conclude that there had been no constructive dismissal of Ms Joel as she claimed.

It may be that on an analysis of the facts a different Industrial Tribunal might have come to a different decision, but we are unable to say, as Mr Leigh-Morgan asked us to do, that the decision reached by the Industrial Tribunal was one that no Tribunal, properly directing itself, could reach. We cannot say that the decision is perverse.

In these circumstances, though we have great sympathy for Ms Joel in what she had to endure in the months in which her mother was ill with cancer, we cannot say that there was a breach of contract by her employer which entitled her successfully to claim constructive

dismissal. The appeal therefore fails.

We would thank Counsel for their assistance today.