United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C GLYN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE WALL

1. In this case, the Appellant, Mr Warren, was employed by the Respondents as an assistant manager of one of its public houses. At the material time the Appellant was the relief manager of the Hare & Hounds Public House in Oldham, and ran it whilst the full time managers were on holiday. During that period, the Appellant appears to have had a number of difficulties not of his own making, including considerable problems with the computerised till. The result of this was that he was unable to ascertain whether the sums he was banking from takings in the public house were accurate. He also appears to have been unable to obtain any material assistance from the Respondents.
2. The result was that on 14 March 2001, when the full time managers returned from holiday, there was an argument between them and the Appellant, during the course of which the former abused the Appellant; and accused him, amongst other things, of stealing money, lying and – in effect – of being so drunk as to be unable to manage the public house properly. The Tribunal accepted that this behaviour on the part of the full time managers – occurring as it did in front of customers – was sufficient to constitute a fundamental breach of contract.
3. The Appellant then went on sick leave, and sought to invoke the company's grievance procedures. He wrote a number of letters to the Respondents which appear to have gone unanswered. The company appears to have insisted on the Appellant being proved fit to work before it would invoke the grievance procedures and there appears to have been a degree of confusion about precisely what was being asked of the Appellant. In any event, on or about 12 June, the Appellant resigned.
4. His principal case before the Tribunal was that he had been constructively dismissed because of the way he had been treated and because the Respondents failed to deal with his grievances. He argued that this course of conduct constituted a fundamental breach of contract of employment. The Employer's case was that they had not failed to deal with his grievances and that he had resigned.
5. This, of course, is a familiar area of dispute and usually depends upon the Tribunal's finding of fact. However, in the instant case, the Appellant argues, amongst other points, that the Tribunal erred in law in particular in failing to have any proper regard to the fact that the events of 14 March and the Respondents' subsequent contact, represented a cumulative series of breaches of his contract of employment and that the fact that the Appellant did not resign then and there on 14 March did not mean that when he did resign on 12 June he was not resigning in response to a fundamental breach.
6. In very helpful argument before us this morning, Mr Glyn, on behalf of the Appellant has pointed to the fact that in his submission there were a total of some 9 breaches of the Appellant's contract of employment. There was first of all the way he was left to do the relief work between 6 and 13 March which he sets out in some detail in a letter he wrote to the Respondents. There is secondly, the fundamental breach which is agreed, namely the way he was spoken to by the regular managers when they returned from holiday. There is also an acceptance, Mr Glyn argues that the initial administrative handling of his grievance procedure was defective and in particular item 4, that when the Appellant went to see an Occupational Health Advisor, he was in fact presented with a medical examiner The manner in which that took place was, it is said, a breach of his contract. There was also, and this we feel of particular significance, a failure (as the Tribunal found) to pay sick pay. There was also a failure (as the Tribunal found) to pay holiday pay. There was a failure (as the Tribunal found) to pay relief pay and there was also an administrative change in the way payments were made from a calendar to lunar monthly payments, which again caused the Appellant expense. Finally, Mr Glyn relied on the fact that the Respondents did not tell the Appellant the reason for seeking a medical report and indeed no prior position was sought for a medical examination.
7. Mr Glyn submits that the failure to take into account these breaches as a cumulative total vitiates the Tribunal's decision. The impression, given by the reasons is that there was simply one breach and that breach, was insufficient to enable the Appellant properly to be deemed to be constructively dismissed. But taken together, Mr Glyn argues, they amount to cumulative breach, which is sufficiently fundamental to entitle the Appellant to resign. This compartmentalisation of the breaches, Mr Glyn argues, vitiates the Tribunal's decision.
8. We are of the view that this argument is one which can properly put forward as a means of attacking the Tribunal's decision and that accordingly the appeal is arguable. In these circumstances we propose to allow the matter to proceed. One point which arises, which will require the obtaining of the Chairman's notes, is the argument that in its extempore judgment, that is its reasons given at or shortly after the time of the hearing, the Tribunal indicated that the Respondent had breached the Appellant's contract of employment in requiring him to attend a medical examination without explaining the reasons for the same. That finding is not recorded in the extended reasons and it is argued that the Employment Tribunal failed to consider whether that breach was fundamental and if the Appellant resigned in response to it.
9. That particular point will plainly require the production of the Chairman's notes which we propose to direct. It will also be necessary for there to be an amendment to the Notice of Appeal; Mr Glyn put that forward in these terms; that the Employment Tribunal erred in failing to take into account the fact of cumulative breaches of contract in approaching the question of why the Applicant resigned. I have of course in this judgment set out what those cumulative breaches are alleged to be but nonetheless it seems to us that the matter should be put on a formal basis and the notice of appeal amended within an appropriate time.
10. For these reasons we take the view that this appeal is arguable and should go forward, we take the view that it should be designated category C, with an estimated time of half a day; the amended Notice of Appeal to be provided within 14 days and skeleton arguments to be exchanged 14 days prior to the hearing.