United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS TUCK (of Counsel) USDAW 188 Wilmslow Road Fallowfield Manchester M14 6LJ


 


JUDGE ALTMAN

1. This is an appeal from the decision of the Employment Tribunal held at Bristol on two days in December 1999. It comes before us by way of preliminary hearing to determine whether there is a point of law which merits argument in full before the Employment Appeal Tribunal.
2. The ground of appeal can be shortly stated. It is argued that, having found that in a case of constructive dismissal that the Respondent employer was in breach of the implied term requiring him to maintain trust and confidence with his employee, it was not then open to the Employment Tribunal to find that the conduct complained of was not so serious as to justify the Appellants leaving without notice, in other words to constitute constructive dismissal. The reason that the Appellant left was that he was criticised in public in front of others to his considerable distress. The Employment Tribunal summarised a position in paragraph 19: -

"In our view Mr Walsh was entitled to be annoyed and to criticise the appellant and what he said did not in itself go beyond the bounds of a fairly crisp dressing down. It was not the reprimand, but the circumstances of the reprimand which fell below best practice and we were unanimously of the opinion that that was not such a serious matter as to entitle the applicant to regard herself as being constructively dismissed."

3. Before that the Tribunal found that the action of criticising the appellant in public amounted to a breach of the implied term to maintain trust and confidence, they went on to say:

"it is not every breach of a term of the contract which is so serious as to amount to a repudiatory breach, in other words a breach which is so serious as to go to the heart of the contract and effectively destroy it."

4. It is that proposition which is alleged to be a misdirection of law. Reference is made to the judgement of Mr Arnold J, in Courtaulds Northern Textiles Limited –v- Andrew [1979] IRLR 84. It seems to us that the proposition of law that arises from that case is whether it is sufficient to look at the seriousness of the conduct or whether a breach of the implied term is to trust and confidence itself must mean that the Respondent has destroyed or seriously damaged the relationship of trust and confidence and that this must mean, therefore, that it was repudiatory conduct.
5. Reference was also made to the case of TSB Bank Plc –v- Harris 2000 IRLR 157 in which amongst other things the judgment stated: -

"we find that the Employment Tribunal were entitled to find that the actions of the appellants constituted a breach of the term as to trust and confidence and that consequently there was a fundamental breach of contract."

6. It seems to us arguable that in expressing themselves in that way the Employment Appeal Tribunal were saying that the Employment Tribunal was entitled to find that consequently there was a fundamental breach of contract, that they were not saying that there was as a matter of law a breach of contract once there was a breach of the implied term as to trust and confidence, for otherwise the word "that" in the last line would have been unnecessary. However that construction, it seems to us, is best properly dealt with in full argument before the Employment Appeal Tribunal.
7. There are two possibilities, the first is that if the employer acts in a way that is not best practice, but is not so serious as to amount to repudiatory conduct, is it said that he does not breach the implied term of trust and confidence or secondly, and alternatively, if the employer acts in a way that is not best practice so as to break the implied term of trust and confidence does the question still arise as to whether it is a sufficiently serious breach as to justify the employee leaving without notice?
8. In the first case any breach of the implied term to maintain trust and confidence is repudiatory conduct. In the second it is only a serious breach of the term that qualifies in that way. In the effect there is here a revival of the old debate referred to in TSB Bank Plc –v- Harris between whether it is a breach of a fundamental term or a fundamental breach of a term or both or either that are to be looked at.
9. In reality to degrees of seriousness of conduct it is important as between employers and employees. Should one bear in mind the test that really puts on the employer the corollary to summary dismissal, conduct which is of a similar level of seriousness giving rise to the employee in this instance being entitled to leave without notice, similar to the employer being entitled to dismiss without notice? Is it only such serious acts that can breach the employment contract? Can the employer act badly with impunity so long as it is not so bad as to be very serious, and not to be in breach of contract at all?
10. Accordingly, it seems to us there are two questions that merit consideration. First, did the Employment Tribunal misdirect itself in law in finding that there could be conduct which is both a breach of the implied term to maintain trust and confidence on the one hand, whilst not being sufficiently serious as to amount to repudiatory conduct on the other? The second matter which clearly arises on the facts in this case, is whether, if there was such a misdirection, was the conclusion of the Tribunal contained in paragraph 21 nonetheless plainly and unarguably right and we refer to the case of Dobie –v- Burns International Security [1984] IRLR 818. Accordingly we permit the matter to go to full hearing to deal with those two questions only. It will be listed for 1 day, category C, skeleton arguments to be furnished in accordance with established practice.