United Kingdom Employment Appeal Tribunal

 

 

 

APPEARANCES

 

 

For the Appellants	Mr S G McLaren, Solicitor Of- Messrs Kippen Campbell Solicitors 48 Tay Street PERTH PH1 5TR
For the Respondent	Mr Peter Higgins In Person 25 Huntly Place ST ANDREWS KY16 8XA

 

 


 


LORD JOHNSTON:

 

1. This is an appeal at the instance of the employer in respect of a majority decision by the Employment Tribunal that the employee respondent had been constructively dismissed. The majority consisted of the two lay members, the minority being the Chairman.
2. The background to the matter is a dispute which led to the resignation of the respondent relating to rotas being set once he had returned to work following a settlement of a previous dispute under a COT3 agreement.
3. The decision of the Tribunal is in the following terms:-

"Decision

 

If this application was to succeed we had to be satisfied that the respondents had acted in breach of an express or implied term of the applicant's contract of employment. That breach had to be material. The applicant had to have resigned in response to that breach, and had to have done so reasonably quickly after the occurrence of the breach. We were satisfied that the applicant's entitlement to a particular rota, determined in accordance with the seniority list, was a term of his contract of employment, and not merely a privilege. We were also satisfied that at the time of his dismissal in May 2000 the applicant enjoyed a position in the seniority list above Mr. Aird, and that this was based on including his part-time service. It followed that the respondents' action in giving the applicant his preferred rota, previously undertaken by Mr. Aird, constituted compliance with the COT3 agreement. It also followed that the respondents' subsequent action in taking that rota from the applicant and restoring it to Mr. Aird constituted a breach of the applicant's contract of employment.

 

The majority of the Tribunal regarded this as a material breach going to the root of the contract. Entitlement to choose a particular rota on the basis of seniority was perceived as important by the respondents' drivers for the reasons narrated earlier in this decision. Even if Mr. Aird's grievance had raised a genuine issue in relation to the accuracy of the seniority list, the applicant was entitled to the benefit of the status quo until the matter was resolved. The respondents reacted by effectively handing over responsibility for resolving the matter to the Trade Union on 11 December 2000, when they knew that there was ill feeling between the applicant and the Trade Union. By their actions the respondents breached the obligation of trust and confidence which they owed to the applicant. The applicant was entitled to regard this as the last straw – the respondents must have been aware that the applicant's position on the seniority list, which dictated his choice of rota, had been an issue for him over a number of years, so that to give him "his" rota and then almost immediately to take it away in a stroke would be seen by the applicant as material. The applicant had resigned in response to that breach and had done so reasonably quickly after the breach occurred. In the view of the majority he had been constructively dismissed by the respondents, the respondents had not demonstrated a potentially fair reason for that dismissal and accordingly that dismissal was unfair.

 

The Chairman took a different view. He did not consider the respondents' breach of contract, by removing from the applicant the rota to which he had been assigned and was, by reference to the existing seniority list, entitled to be a material breach. The respondents' schedule had changed since the applicant's dismissal in May 2000. Following that change, rotas had been allocated including that of Mr. Aird. While the agreement to reinstate the applicant on the same terms and conditions under which he was employed prior to dismissal implied that he retained the right to select "his" rota" in accordance with the seniority list, it would have been unreasonable to expect the respondents to achieve that position the instant the applicant returned. By accepting that he would be on the spare sheet initially the applicant by implication acknowledged this. The evidence indicated that the respondents had sought to give the applicant the rota to which he claimed entitlement by virtue of the seniority list. They were however then faced with Mr. Aird's grievance and called a meeting on 11 December 2000 in an effort to resolve matters. The evidence indicated that there were apparently anomalies in the seniority list which implied that there was more than one issue, i.e. it was not simply a question of whether the applicant or Mr. Aird had greater seniority. In terms of their agreement with the TGWU (R36) the respondents had agreed that rostering would be the subject of local consultation and agreement. The outcome of the meeting on 11 December 2000 was that the respondents' management with the co-operation of the trade union would produce an updated seniority list which would be displayed for all the respondents' drivers to see. The union would then decide at a branch meeting whether the revised seniority list should be used at the earliest opportunity (8 January 2001) for drivers to re-apply for the current rotas or whether the list should be used only when duties and rotas next changed. In the Chairman's view that was broadly consistent with the agreement between the respondents and the trade union. That agreement formed part of the applicant's terms and conditions of employment. While the immediate impact was adverse to the applicant, in that he lost "his" rota, that did not go to the root of the contract. The true position, in the Chairman's view, was that the respondents were seeking to resolve the difficulty which had arisen between the applicant and Mr. Aird in a manner which was consistent with their agreement with the applicant's trade union, and therefore broadly in accordance with his terms and conditions of employment. In the circumstances this was a reasonable position for the respondents to take. Further, at the time when the applicant resigned on 26 January 2001 the respondents were entitled to take the view that the ball was in his court. He had said in his letter of 4 January 2001 (A14 and R1/R10) that he would be in touch with the respondents. There was no evidence before the Tribunal as to the outcome of the review of the seniority list and the Chairman took the view that there was no material breach of contract entitling the applicant to resign on 26 January 2001.

 

4. Mr McLaren, appearing for the company appellant, maintained the majority had misdirected themselves inasmuch that, in essence, they had considered not the conduct of the company but rather the reasons in the mind of the respondent which led to his resignation. Mr McLaren referred to the respondent's letter of resignation and the various matters stated in that which is quoted by the Tribunal in the body of the decision. He maintained that, properly understood, the majority had not viewed this aspect of the case but rather focussed on the conduct of the company, and, in any event, had made no ruling in respect of either of two main points with regard to the attack on the company by the respondent in his letter. If the main substance of the respondent's complaints in his letter was taken out, all that was left were complaints about the way the company had handled the matter which were not sufficiently material to warrant resignation and thus establish a constructive dismissal.
5. Before us, Mr Higgins, representing himself, simply attacked, by way of evidential assertions, most of the findings of the minority Chairman in support, basically, of the position of the majority. We allowed him to do this but it has to be pointed out that evidential attacks of this nature do not encompass points of law before this Tribunal save in the instance of perversity.
6. The basic position covering constructive dismissal following upon a breach of contract and resignation, is Western Excavating ECC Ltd v Sharp [1978] IRLR 27. There requires to be a significant breach of contract which is material going to the root of contract of employment paraphrasing the matter entitling the employee to reach the view reasonably that the employer had no longer any intention of adhering to the substantial terms of his contract of employment.
7. In this case, Mr McLaren expressly conceded before us that the issue of rota handling was subject to a term of the contract which had been breached by the employer. Thus he was left only with a submission on the issue of materiality.
8. This issue is one of fact and will only be interfered with by this Tribunal if we consider that no reasonable Tribunal, properly instructed on the evidence, could have reached a conclusion on the issue which they did achieve.
9. With no hesitation we are of the view that the views here expressed by the majority were based upon evidence that they were entitled to consider in determining the issue of materiality and they have done so with sufficient reasoning and clarity to deny us any opportunity to interfere with it. Our own views, as to whether or not we would have agreed with the minority Chairman upon the evidence, are nothing to the point.
10. We therefore determine that the conclusion reached by Tribunal was one that they were entitled to achieve upon the evidence and discloses no error of law.
11. This appeal accordingly will require to be dismissed. The case will be remitted back to the same Tribunal to consider the question of compensation.