United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J BACON OF COUNSEL APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME


 


JUDGE PETER CLARK: This is an Appeal by Mrs Robinson, the Applicant before the London (South) Employment Tribunal, Chairman Mr R Lewis, against that Tribunal's decision promulgated with extended reasons on 19th November 1998, dismissing her complaint of unfair constructive dismissal brought against her former Employer, the Respondent, Fairmont Group PLC. The Tribunal found that she was not constructively dismissed when she gave one month's notice of resignation on 14th July 1998.

The Appellant commenced employment with the Respondent as an audio typist in February 1995. She was then aged 50 and had spent all her working life in office environments. She had an excellent employment history. In January 1997 Mrs Pat Freeman became the Appellant's supervisor. Within a short time the Appellant formed the view that Mrs Freeman was picking on her. She felt that she was isolated from the rest of the team at Mrs Freeman's behest. Despite this perception, the Tribunal rejected the Appellant's case that she was in fact picked on or bullied by Mrs Freeman or anyone else. On the contrary, they found that Mrs Freeman managed the audio typists fairly and indeed, gave more flexibility to the Appellant over time-keeping and lunch breaks than others.

An incident occurred in late September 1997. A dispute arose between the Appellant and Mrs Freeman over a tape which she had transcribed for a Mr Yates. It ended up, so the Tribunal found, with the Appellant calling Mrs Freeman a liar and Mrs Freeman appears to have failed to have handled the situation properly. The matter was reported to Mr Cody, the Group Finance Director, who conducted a disciplinary hearing with the Appellant on 29th September. That resulted in the Appellant being given a written warning to remain on her file for 3 years. The Tribunal criticised the Respondent's handling of that disciplinary matter. The Appellant was only given 15 minutes' notice of the hearing. She was not told that it was of a disciplinary nature. She was not given prior notice of the complaint against her. The period of 3 years, which was unusually lengthy in the Tribunal's experience, came off the top of Mr Cody's head, he said in evidence she was not advised of her right to appeal. Nevertheless, after that, the Appellant carried on work normally until 8th December 1997, when an incident occurred over her use of an electric fan, after which the Appellant went off work sick, never to return before handing in her notice on 14th July 1998. Her general practitioner was of the opinion, no doubt based on what she was told by the Appellant, that her symptoms of anxiety and distress were attributable to conditions at her work.

On those findings of fact, the Tribunal asked themselves whether the Respondent was in repudiatory breach of the implied contractual term of mutual trust and confidence. They found that although the disciplinary incident in late September 1997 had been badly handled, the Respondent was not in breach of contract, let alone in fundamental breach. They dismissed the complaint.

In considering this Appeal, we bear in mind that the question as to whether the Employer was in breach of contract, and if so, whether such breach was a fundamental one, are essentially questions of fact for the Employment Tribunal, subject to a finding of perversity. We cannot interfere with such findings, merely because we disagree with the Tribunal's conclusions, even if that be the case. Pedersen -v- Camden London Borough Council [1981] ICR 674. Specifically, whilst it is open to an Employment Tribunal to find that the imposition of a disciplinary sanction disproportionate to the offence, if promptly acted upon by the employee leaving the employment, amounts to constructive dismissal (see BBC -v- Beckett [1983] IRLR 43) the Tribunal is not bound to reach that conclusion. In the instant case the Tribunal did not find it necessary to make a determination as to whether the Appellant had delayed too long before leaving the employment.

In this Appeal we have received submissions from Mr Bacon of Counsel, who appears on behalf of the Appellant under the ELAAS pro-bono scheme. He has focused on the Tribunal's findings as to the unsatisfactory nature of the disciplinary proceedings held in late September 1997, to which we have referred, together with a submission that the Appellant was threatened with dismissal by Mr Cody during the course of the warning period. He also refers to the Respondent's offers to the Appellant to leave on financial terms or to take alternative employment. The overall picture, he contends, plainly amounted to a breach of the implied term of mutual trust and confidence.

We have considered all that has been said but we are driven to conclude that no arguable point of law has been raised in this appeal. On the Tribunal's findings of fact, they were entitled to conclude that the Respondent was not in breach of contract at the date on which the Appellant tendered her resignation and then left, having taken into account particularly, the unsatisfactory nature of the disciplinary process as found by the Tribunal.

Mrs Robinson followed. Her argument was a purely factual one. It is absolutely clear to us that she feels under considerable stress. With that we sympathise, but as we have sought to make clear, our jurisdiction is limited to correcting errors of law. We cannot re-investigate factual questions which are and were a matter for the Employment Tribunal. In these circumstances, we must dismiss this Appeal.