United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr D Kidd, Solicitor Of- Messrs Biggart Baillie Solicitors 7 Castle Street EDINBURGH EH2 3AP
For the Respondents	Mr J MacMillan, Solicitor Of- Messrs MacRoberts Solicitors 152 Bath Street GLASGOW G2 4TB


 


LORD JOHNSTON:

1. This is an appeal at the instigation of the employee against a finding of the Employment Tribunal to the effect that he had resigned from his employment with the respondents in circumstances which did not amount to constructive dismissal. Accordingly his claim for unfair dismissal was dismissed.
2. There is little dispute on the facts as found by the Tribunal.
3. In September 1999, the holding company appointed a new managing director, either to rescue the company's financial problems, or to close it down. Accordingly there was a general knowledge amongst staff of at least redundancies, if not total closure. Against that background, it appears that on Friday 21 January, Mr Elliott, who was director in charge of the Solihull office, made a remark to his secretary to the effect that the appellant would be the "next to go". It appears that the secretary then passed that comment on to an employee in the Glasgow office, a Miss Martin, who relayed it on to the appellant on the basis that he was "next for the chop" and he was to be replaced by somebody else.
4. The Tribunal go on to hold that the applicant, being extremely upset to be told this, wrote a resignation letter which they set out in full on page 4 of their findings. Thereafter it appears that the managing director of the company spoke to the applicant but failed to persuade the appellant to change his mind.
5. Against that background, the Tribunal having set out what is accepted as the correct tests as in Western Excavation (ECC) Ltd v Sharp [1978] IRLR 27 and Woods v W M Car Services (Peterborough) Ltd [1981] IRLR 347, reach the following conclusion:-

"While the Applicant went to considerable lengths to explain his state of mind when he was told what Mr Elliott was alleged to have said, looking at his position sensibly and reasonably, we do not think it put him in an intolerable position. It could have come as no surprise to the Applicant, in the situation in which the company was in, his position in the company and the personal circumstances of his age and long service, that the issue of his redundancy would form part of Mr Harrison's consideration in his task of achieving the cost savings which he was seeking; if Mr Harrison had approached the Applicant before he had received this report and discussed his possible future in the terms in which he did after receiving the Applicant's resignation, the Applicant might well have felt less than enthusiastic at the prospect of carrying out assessments and consultations on the redundancy of other staff while his own job was in jeopardy, and it might have been kinder to excuse him from doing so. Nevertheless, what he was being asked to do was to carry out his job in a professional manner, and a request in these terms could not possibly be regarded as likely to damage the relationship of trust and confidence. The Applicant's position seems to be that what did transpire was more damaging, because he understood it was a remark made by another director, not to him but to a relatively junior member of staff, that it had been related to another member of staff who might be expected to transmit it to a wider audience, that in the form in which it reached him it was expressed in unacceptable terms, and it was linked to the possibility of his being succeeded by someone he knew to be insufficiently qualified or experienced. In these circumstances, rather than treat the remark as having greater significance and a more damaging effect, it is our view that he should have treated it as of little or no consequence."

6. Mr Kidd, who appeared for the appellant, emphasised that the substance of the appellant's complaint and the cause of his reaction, was the fact that the message in question indicating that he was next in line for redundancy, was relayed to him by a third party and not directly addressed to him by the relevant director. Indeed, it had been addressed to a lowly employee. It was not relevant, he submitted, for the Tribunal to have considered what happened in relation to Mr Harrison, the conduct complained of being that of Mr Elliott which the Tribunal had not properly considered. Furthermore, he submitted that having regard to the second paragraph of the decision which we have quoted, the decision was perverse, particularly in relation to the last sentence with its reference to "little or no consequence". He referred to the well known test established in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440. He went on to submit that this decision of the Tribunal was so perverse that it would be appropriate for this Tribunal to substitute its own decision to the opposite effect, which was, he submitted, the only decision that the Tribunal could have reasonably come to, namely, that the conduct of Mr Elliot went to the heart of the obligations of mutual trust and confidence and thus amounted to a repudiatory breach of the contract of employment.
7. Mr MacMillan, appearing for the respondents, emphasised that the remark in question was not an indication of actual redundancy but merely the possibility of it but he concentrated more positively on the law and particularly the Court of Appeal decision in Woods supra [1982] IRLR 413 which indicates how strong a test has to be satisfied as a matter of fact before a repudiatory breach of contract can be established. He supported this position by reference to Brown v Merchant Ferries Ltd [1998] IRLR 682. He submitted that the Tribunal had reached a conclusion they were entitled to achieve on the evidence, applying an objective test. On any view of the matter, this Tribunal could not substitute its own view. If the view was taken that the decision of the Tribunal was perverse, the matter would have to be reheard.
8. We consider that the Tribunal in this case applied the right test in law, faced with what was a narrow question to be determined on the facts. The fact that it was narrow, supports however the view that if there is two sides to the question, each of one of which can be rationally supported, this Tribunal will not interfere with a decision of the Tribunal supporting one of them. It therefore follows if the appellant is going to succeed in this case he must satisfy us that the decision of the Tribunal was perverse and we do not consider that this is the case. We consider the Tribunal have considered the evidence and determined that the conduct was not sufficiently serious in its context and against the background of the company's affairs, to amount to a repudiatory breach going to the heart of the contract based on the issue of trust and confidence. The fact that the message was relayed third hand is double edged, since it could indicate a lack of concern for the position of the appellant on the part of Mr Elliott but it has to be noted conversely, that the remark was made to his secretary, who presumably owes certain confidential duties, and there is no reason to think upon the evidence that Mr Elliot knew that the matter would be conveyed eventually to the appellant.
9. In these circumstances while we can see that the case could have been decided to the opposite effect, we do not consider the Tribunal in this case reached a conclusion that it was not entitled to achieve upon the evidence. In these circumstances we will not interfere and the appeal is therefore refused.