United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS P. WYLDBORE-SMITH (of Counsel) Wood & Awdry Solicitors 3 St Mary Street Chippenham Wiltshire SN15 3JL


 


JUDGE COLLINS:

1. This is the preliminary hearing of an appeal against the decision of an employment tribunal sitting at Southampton, whose extended reasons were promulgated on 26 July 1999. A majority of the tribunal held that the respondent was constructively dismissed. They awarded him compensation totalling £3,248.98.
2. The respondent is now 60 years old and from April 1991 until 6 March 1999 was a ground maintenance operative employed by the appellants, who had taken over the business on 1 May 1997. His complaints of verbal abuse, threats and bullying behaviour by fellow employees were investigated in April 1998 by the appellants' contract manager with no result. In June of that year, by agreement between the parties, the respondent went to work on a new site in Aldershot. Although he suggested that later in the year there had been some snide remarks directed towards him and unpleasant behaviour, he was unable to give the tribunal any examples. In February of the following year, there was an altercation with the foreman on 24 February. The respondent felt that the foreman had given him a quite unnecessary and inappropriate dressing down in front of other employees and the following day he went into the office and sought an apology and support; none was forthcoming. He said he had had enough and gave one weeks' notice taking effect on 6 March 1999.
3. The respondent made an application to the employment tribunal on 22 March 1999 saying that he had been unfairly dismissed and the majority of the tribunal upheld his complaint. The reasons which they gave, so far as one can extract them from the decision of the majority, were that, although they do not say so in terms, they accepted his argument that there had been inadequate investigation and action taken in April 1998 and that the employers'conduct in responding in the way they did on 25 February, struck at the trust and confidence which must exist between employer and employee. And they held, looking at the whole history, that the appellants behaved in such a way as amounted to a breach of contract, serious enough for the respondent to regard it as a ground for leaving. Accordingly, they upheld his complaint.
4. The view of the minority was first, that the respondent was unable to rely on the earlier matters because he had affirmed the contract by continuing to work and second, adopting a concession which appears to have been made by the respondent's representative, that the conduct on 24 to 25 February, however regrettable, did not amount to a breach of contract. It seems to us that the appellants' points here are reasonably arguable, although we express no view as to the likely outcome before a full hearing. It must be arguable that the tribunal should have taken no account of the inadequate investigation in April 1998, if for no other reason than there was no evidence that there had been any repetition of the conduct which led up to that investigation. Secondly, it must be reasonably arguable that the conduct on 24 to 25 February did not amount to repudiatory conduct. For those reasons, we regard this appeal as reasonably arguable.