United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M NEGISHI (Representative) Free Representation Unit Peer House 4th Floor 8-14 Verulam Street London WC1x 8LZ


 


MR JUSTICE WALL

1. This is the preliminary hearing of an appeal by Mrs Teresa Ellen Gould against the unanimous decision of the Brighton Employment Tribunal on 15^th August 2001 deciding that she was not unfairly dismissed. As I indicated in argument a moment ago, we have some sympathy for the Appellant who, as the Tribunal found, was competent, reliable and responsible.
2. The Appellant was a Counter Manager at a Post Office in Gossops Green. The Post Office in question is run by the Martin Retail Group and was acquired by the Respondents to this appeal, Forbuoys Ltd, in circumstances which are not material. The Appellant worked, part-time, three days a week, sharing responsibility and work as a Counter Manager with a colleague, a Mrs Darlington. They operated a Monday, Tuesday, Wednesday of one week and Thursday, Friday, Saturday of the same week rotation.
3. As I said a moment ago, the Tribunal found that the Appellant was good at her job, but what happened, inevitably these days, was that Post Office Counters Ltd wanted to introduce a computerised system throughout the United Kingdom, and in November this system was introduced at the Appellant's branch. The Respondents themselves had no part in that decision making process, and it was Post Office Counters Ltd who arranged the one day training course for the counter employees. In fact I think the Appellant had one and a half days of training.
4. At the end of the training course the Appellant plainly had not mastered the system; there is no criticism of her for that. She was unable to deal with it. She made a substantial effort to do so, but no further training was supplied by the Post Office. So what happened was that Mrs Darlington would come in and help her.
5. Matters reached the point where the Appellant had mastered the day to day workings of the system as far as serving customers was concerned, but at the end of the week there had to be a report made, or compiled, on the computer and that the Appellant found difficult. It was anticipated that when it came to her turn to do it, the field support worker would be present to assist her, but most unfortunately he did not attend and so the Appellant was not assisted in mastering the system through his help.
6. She persevered for a time with the assistance of Mrs Darlington and finally got to the point where, as the Tribunal found, she was insecure and uncertain with regards to the use of the computer and found it difficult to acclimatise.
7. On 29^th November, when Mrs Darlington had assisted her in completing the weekend report, the Appellant contacted Mrs Parker, the Appellant's area manager, to tell her of the difficulties. There is some minor and unimportant dispute as to what was, or was not, said and Mrs Parker did not remember the conversation. It was, however quite clear that the weekend report was important and could be delayed until the following week - by which time it was anticipated that Mrs Parker could have made arrangements for someone to help the Appellant with the computer system. Mrs Darlington had indicated her preparedness to assist, providing she was paid, but Mrs Parker made it clear that there was no budget to pay anyone else overtime for assistance in the introduction of the system; indeed there was no further budget for training.
8. On 29^th November 2000, that is later on the same day, the Appellant telephoned Mrs Parker and told her that she had no choice but to resign. Mrs Parker asked her to think it over and told her that "in about eight weeks you will wonder what you were worrying about", but the following day the Appellant wrote to Mrs Parker confirming her resignation. That is the crucial incident and the question resolves itself into whether or not the Respondents' conduct in failing to provide adequate training for the Appellant was a fundamental breach of contract which entitled the Appellant to resign.
9. The way it was put before the Tribunal was that, because of the Respondent's failure to provide proper training, they had made it impossible for the Appellant to do her job and this was a breach of the implied condition of trust and confidence in her contract of employment. She argued, through her representative, that this was a fundamental breach of contract and amounted to conduct which justified her terminating her contract under Section 95(1)(c) of the Employment Rights Act 1996.
10. The Tribunal did not accept that argument. It was, to an extent, critical of the Respondents for the lack of training, which it was their responsibility to pay for and provide, but in paragraph 14 of the Reasons, they identified the crucial question. This was whether the inadequate management in the context of the Appellant amounted to a failure, or a refusal, to provide the support which was necessary to ensure that she did her job properly. The Tribunal came to the clear conclusion that the Respondents' behaviour was not a fundamental breach of the contract entitling the Appellant to resign.
11. The Tribunal took the view that the proper course would have been for discussions to have taken place as to how the problem could be overcome. They pointed to the clear fact that Mrs Parker had sought to dissuade the Appellant from resigning once she was aware of the problem. The Tribunal concluded with this paragraph

"The Tribunal finds that there was no evidence of the Respondents' refusal to help the Applicant, the Applicant gave the Respondents no opportunity to make any arrangement at all and therefore the Tribunal cannot find that, on the information which existed at the time the resignation took place, there was a fundamental breach of contract on the part of the Respondents. In reality the Applicant had no such evidence of other than an inability to help at the moment she sought assistance because at that particular time Mrs Parker could not help her."

12. Two points are taken in the Notice of Appeal, which we gave permission to amend today. The Notice reads

"The Tribunal misdirected itself by failing to consider the Respondents' conduct in its entirety. By wrongly taking into account the Appellant's conduct in assessing whether there was a fundamental breach of contract by the Respondents that entitled the Appellant to terminate her contract of employment without notice by reason of the Respondents' conduct. Further or in the alternative, the Tribunal misdirected itself by considering the Respondents' conduct without making a specific finding whether there was a fundamental term of the contract in the first place."

13. With respect to Mr Negishi, who has argued this case very carefully, we think there is nothing in either point. The simple issue here was, on the facts; was there a fundamental breach?\ The Tribunal found that there was not. In our judgment, there was no misdirection of law in reaching that conclusion and indeed, it seems to us, it was plainly correct. In these circumstances we see no purpose in allowing the appeal to go forward to a full hearing. We detect no error of law in the reasoning of the Tribunal and we dismiss the appeal.