At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE HOLLAND
SIR GAVIN LAIRD CBE
MR B M WARMAN
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | Mr C QUINN (Of Counsel) Instructed by: Messrs Walker Morris Solicitors Kings Court 12 King Street Leeds LS1 2HL |
For the Respondent | Mr A J KOLODZIEJ (Of Counsel) Instructed by: Messrs Close Thornton 2 duke Street Darlington Co Durham DL3 7AB |
MR JUSTICE HOLLAND
"Dear Sir
I write further to Neil Hayward's letter of 27 January 2000.
I first raised my concerns with you regarding the Company's actions in unilaterally removing a significant part of my role on 17 August 1999.
You did not address my concerns and indeed reacted in an extremely aggressive, bullying and threatening manner towards me which resulted in my being certified unfit for work due to stress and anxiety for some 3½ months. Your unilateral variation of my terms and conditions of employment and your behaviour towards me amounted to serious and fundamental breaches of my contract of employment which justified my immediate resignation.
Your response left me with no alternative but to invoke stage two of the Company's grievance procedure, this I did by my letter of 7 October 1999. My invoking the grievance procedure was without prejudice to my statutory and contractual rights and did not waive the breaches of contract set out above. I reserved my position in this regard.
The Company has failed to effectively address my grievance despite being given two opportunities to do so.
Neil Hayward's most recent letter provides ample evidence of this. The following points are clear:-
1. The issue of the relationship of myself and my staff to the USAF Logistics Personnel first raised on 17 August 1999 has not been addressed at all.
2. Since my return to work in January 2000 it is clear that my role has been eroded further in the following areas:-"
He then sets out some 5 areas that of matter of concern. He goes on:
"The Company has chosen not to take any effective action in relation to your conduct which resulted in my being absent from work for over 3½ months due to the stress and anxiety caused by such behaviour.
As the Company have taken no effective steps to remedy the serious and fundamental breaches of contract which formed the basis of my grievance, I have no alternative but to accept the Company's breaches of contract and resign my position with immediate effect.
I look forward to receiving my salary payment to today's date, together with payment for my 50 days holidays accrued but not taken as at today's date, payment for an outstanding BER and my P45 at your earliest opportunity.
I have cleared my personal belongings from my office and left my Company vehicle and keys at MT."
This letter undoubtedly served to terminate his employment and raised the issue as to whether he was or was not the subject of constructive dismissal, hence the complaint as heard by the Employment Tribunal in Leeds over a period of some 4 days.
"These are the findings of fact which we make. We have to apply those facts to the law. This is a case where the applicant relies upon the provisions of s.95(1)(c) of the Employment Rights Act 1996. In such cases, the Tribunal is guided by the decision of the Court of Appeal in the case of Western Excavating (ECC) Limited v Sharp [1978] IRLR 27 and in particular the judgement of Lord Denning. Pursuant to that judgement, in a case of constructive dismissal, the Tribunal has to be satisfied that the applicant has established that there has been a breach of his contract of employment, that the breach is of a fundamental term, that the applicant resigned in response in response to that breach and that he resigned promptly."
"(1) For the purposes of this Part an employee is dismissed by his employer if …
(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct."
"In order for the employee to be able to claim constructive dismissal 4 conditions must be met:
(1) There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.
(2) That breach must be sufficiently important to justify the employee resigning or else it must be the last in the series of incidents which justify his reasons for leaving
(3) He must leave in response to the breach and not for some other unconnected reason
(4) He must not delay too long in terminating the contract in response to the employer's breach otherwise he may be deemed to waive the breach and agreed to vary the contract."
"As already stated, the originating application sets out what those breaches are alleged to be. In the course of the hearing and in his final submissions, Mr Quinn, for the applicant, has sought to add to those alleged breaches by raising further breaches arising out of criticism of the procedures followed by the respondent in dealing with the applicant's grievances. It may well be that that criticism has some merit but it is clear that any knowledge of those further alleged breaches cannot have been in the applicant's mind when he resigned. Indeed much of what is now relied upon in that regard only came out at a late stage in the evidence before the Tribunal almost a year after the resignation. In no way could this later acquired information have been in the applicant's mind at the time he resigned. As this is so, it cannot be that the applicant resigned in response to those matters. The nearest that the applicant comes to impugning the grievance procedure in his letter of resignation and his originating application is by stating that the respondent failed to address his grievance, i.e. to give him the result he wanted. That is very far from the case now advanced that it was at least in part faults in the procedure which caused him to resign."
"We are mindful of the fact that, in hindsight, the way in which the respondent went about considering and ruling upon the applicant's grievances no doubt could and perhaps should have been better handled. We are also mindful of the authorities drawn to our attention by Mr Quinn regarding the failure of an employer properly to have in place or properly to implement a procedure for dealing with grievances. Giving full weight to all those matters and authorities, we are still of the view that we should confine ourselves to the issues upon which the applicant placed reliance at the time he resigned and which he set out in his letter of resignation an re-iterated in his originating application, namely:
a) the respondent unilaterally reduced the applicant's role, duties and responsibilities;
b) the respondent acted in breach of its implied duty of trust and confidence towards the applicant;
c) the respondent failed to provide a safe working environment for the applicant;
d) the respondent failed to address the applicant's grievance whether effectively or at all."
We may add that those four respective matters were quoted by the Tribunal directly from the ET1.
"As a result of information which has emerged long after the event, it is clear that the way in which the respondent addressed the applicant's grievance in relation to various matters did leave much to be desired but, at the time that the applicant resigned, he was not aware of matters which have come out in the course of evidence. The applicant made it plain throughout that the only way in which his grievance could be addressed effectively was for Mr Morgan to be removed from his post. We have already indicated that we can find no reason to justify such action on the part of the respondent. Nothing done by Mr Morgan, in the view of the Tribunal, can be regarded as improper or in breach of the applicant's contract of employment. Why then, should the respondent accede to the applicant's request and remove Mr Morgan from post? To have done so may well have been a breach of Mr Morgan's contract. However, the failure of the respondent to do that which the applicant required, cannot in the view of the Tribunal be seen as a breach of the applicant's employment."
"For all the foregoing reasons, the Tribunal is not satisfied that the applicant has established that there was a breach of contract in respect of which he resigned. It is true, on the evidence that there was almost certainly a breach of the applicant's contract of employment but the applicant was not aware of this breach at the time he resigned and therefore he cannot be said to have resigned in response of that breach.
In those circumstances the complaint before the Tribunal must fail."