United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MELVYN HARRIS (of Counsel) Instructed By: Messrs D C Kaye & Co Solicitors Old Bank Chambers 2 Wycombe Road Prestwood Gt Missenden


 


JUDGE D PUGSLEY:

1. It is understandable, although it is not inevitable, that where there has been a breakdown in relationships that people often find it difficult to accept the change and in both family law and employment one often sees, with sadness, people trying to re-work for considerable times, the agenda of the failed relationship, whether that be in terms of husband, wife, partner, employer, employee or parent, child.
2. These cases always arouse emotions and many people feel very strongly and come to an appellate court and, if one really analysed what is said, they are not complaining about an issue of law, they are simply saying "This judge or this tribunal, as the case may be, got it wrong" and often they add to that charges which really all reverberate around that one theme.
3. This was a case which lasted some three days. The Applicant, Mrs Teresa Ann Britton, had worked for the Respondent in various capacities from September 1982 until November 2001, when she resigned. She claims not only unfair dismissal but discrimination on grounds of sex. For the avoidance of doubt this is a sex discrimination case, but unfortunately there is a reference at paragraph 2 to "race" in the Decision.
4. The complaint that she was not offered the position as virtual Visual Merchandiser because she was at the time pregnant was not made in the Originating Application and it was not one that the Tribunal allowed her to add for the reasons they set out in the Decision.
5. The Tribunal's Decision sets out its findings of fact in paragraph 5 onwards. In particular, paragraph 5.9 of the Decision states:

"Mrs Britton had a meeting on 15 August with Ms Parks and her new Line Manager. She raised a number of concerns. Mrs Britton informed them that she had only been able to make arrangements for her child to be looked after one Saturday per month. Mrs Britton also raised concerns about the way she had been treated historically at the time the Visual Merchandising team had been reduced. Although she felt aggrieved, her concerns related to the past which Ms Parks agreed to look into, but the main thrust of this meeting was to try to resolve the Applicant's problems regarding her return to work. Notes of the meeting are at page 63 [a bundle which we do not have but was before the Tribunal]. Ms Parks' letter of 16 August confirmed what was discussed at the meeting and told the Applicant that her concerns would be looked into (page 57). This was not the start of any form of grievance procedure, nor did Ms Parks regard it as such."

6. The Decision then sets out the various conversations that took place between Mrs Britton and Ms Parks. The discussions between Mrs Britton and other members of the management, including Ms Thompson, the discussions between the Applicant and Ms Parks about continuation of part-time working, and then on 21 September Mrs Britton raised a formal grievance with Mr Moore, the Company Secretary, telling him that by reason of childcare difficulties she was unable to accept any of the offers made in a letter by Ms Parks. Mr Moore urged the Applicant not to leave the Company and, indeed, Ms Parks telephoned the Applicant later that day.
7. There was a conflict of evidence between the parties as to what was said and the Tribunal found they preferred Ms Parks' evidence in that. Mrs Britton resigned on 8 October but, even after that day the Company made attempts to see if it could resolve some of the difficulties. We do not mean this in an offensive way, we appreciate that solicitors do not have totally free hands in these matters, but we are bound to say that the skeleton argument really does look like an attempt to re-argue and re-float the vessel that had sunk before the Employment Tribunal at first instance. It is said that there is a fundamental failure of the Tribunal because what they have done is to totally misunderstand the evidence given on a central issue. The real central thesis, from which all else flows, is that the Tribunal made the finding that the Appellant did not raise a grievance under the grievance procedure at the meeting with Melanie Parks on 15 August 2001. She did, it is common ground, raise a formal grievance later on in 21 September with Mr Moore, the Company Secretary. The finding that the Appellant did not raise a grievance under the Respondent's grievance procedure with Melanie Parks on 15 August and the finding that Ms Parks did not regard the concerns as a meeting as start of a grievance procedure is, it is said, contrary to the evidence that the Appellant gave and contrary to the unqualified admission that Ms Parks made, it is said in evidence, treated the concerns raised by the Appellant as a grievance.
8. We have considered this very seriously and wondered whether or not this case should be adjourned in order that that matter could be explored further and we have given anxious consideration to that. The finding made by the Tribunal, as set out in paragraph 5.9 and also paragraphs 13 and 14. In paragraph 5.9 it is said that a number of concerns were raised, not only about what had happened in the past, but that the main concern was what was to happen in the future and then in paragraph 14 it is said:

"We have already made a finding that the Applicant was not discriminated against on the grounds of her sex and thus it is necessary for us to consider whether the Respondent in this case has acted in a way that its actions are such as to destroy the implied term of trust and confidence which exists in every employer/employee relationship. We reject the contention that the Applicant raised a formal grievance in August. At that time she without doubt felt aggrieved at what had happened to her in the past and raised her concerns. In essence both parties were seeking to find a way forward to resolve the Applicant's difficulties in obtaining weekend childcare. The Applicant did not raise a formal grievance until she contacted Mr Moore on 21 September."

9. We accept Mr Harris genuinely believes the issue of formal grievance was as he recalls it. But it is quite true that, by the Tribunal's findings in paragraph 14, everybody accepts that the Applicant was giving grounds to her concern, both parties were trying to resolve the matter and that thereafter, there were discussions between the relevant members of staff which, in the experience of both members of this Tribunal sound just like the raising of an informal grievance.
10. We have to say that we have all read this Decision and in our collective experience we think this is an extremely well drafted Decision. It has to be borne in mind that the major thrust of this case was a charge of sex discrimination, not constructive dismissal. The Tribunal exhaustively deals with those matters. It then sets out in paragraph 13 the complaint of constructive dismissal and deals with it in paragraphs 13 and 14. What is said is that, by failing to make the fundamental finding that the procedure for the grievance procedure is activated in the meeting in August, the Tribunal fundamentally got it wrong as to the whole question as to whether this was constructive dismissal and that the resignation has to be seen, both as the final straw in a long process of prevarication by the Company and, in particular, a reaction to the absence of any action being taken after the formal complaint to Mr Moore. People can communicate in other than ways of pure words; their body language often speaks language. This Tribunal observed this case over three days. The finding of the Tribunal was that there was no breach of contract that went to the root of the contract and which was of sufficient gravity to constitute constructive dismissal. She was, on the Tribunal's findings of fact, offered alternative employment and it was the Applicant who was seeking variations. The Respondent was not seeking to vary the Applicant's contract and the conclusion of the Tribunal was that there was no breach of contract on the part of the Respondent in this case, let alone a fundamental breach such as to entitle the Applicant to treat herself as discharged.
11. Further, the general thrust of the conclusions of paragraph 14 and of the Decision as a whole, was the Tribunal found that the Respondents were dealing with the matter with reasonable expedition. The employers were, on the findings, not guilty of any conduct which could come within the concept of the implied term of trust and confidence being breached.
12. We consider that, on the evidence before us, it is quite clear that this Tribunal had in mind the tests it had to make and it therefore was justified in what it did in the conclusions to which it came. We therefore do not consider that the finding that there was no formal grievance procedure initiated in August is crucial in the context of the overall findings of the Tribunal. We therefore dismiss this appeal.