United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR B LOWE THE APPELLANT IN PERSON
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE BIRTLES:

1. This is an appeal from the decision of an Employment Tribunal sitting at Sheffield on 12 and 13 November 2002. The decision was sent to the parties and entered in the register on 7 December 2002. The Chairman was Mr R L Williams.
2. The Employment Tribunal unanimously decided that the claim for unfair dismissal failed. There were other matters also decided by the Tribunal that need not concern us here.
3. The material facts are set out in the decision of the Employment Tribunal from paragraphs 3 through to 9. In essence Mr Lowe was employed by the Respondent Company as an Accountant. There was an embryonic friendship between Mr Lowe and a Miss Tracey Stowell. It is not necessary for us to go into the detail of that relationship any more than it was for the Employment Tribunal. We are not here to decide any factual matter in relation to that. Suffice it to say that the embryonic relationship was terminated by Miss Stowell, although the parties continued to work together, meeting less frequently.
4. The material findings of fact are set out in the Employment Tribunal's decision at paragraphs 5 and 6, which I will read:

"5 Mr Lowe and Miss Stowell continued to work together. They met, albeit less frequently, along with others, at social events linked to the firm they were with. In November 2000 as a result of what the applicant felt was rather odd behaviour on the part of Miss Stowell at a bowling evening he contacted her by telephone at her home the following morning in order to find out why she had behaved as she had. He was, he said, merely concerned and felt there was nothing untoward about his approach along those lines. The next thing that happened was that on Tuesday 14 November he was asked to go and see Martin Lee, Miss Stowell's manager and someone with whom he, the applicant, was more than casually acquainted. Indeed they were reasonably friendly and occasionally played golf and had drinks together. Mr Lee made plain at the meeting that it was not at all a disciplinary or formal meeting and that its object was to tell Mr Lowe that Tracey Stowell felt that she was beginning to be harassed by the applicant. She did not want a relationship with him, save, that is, a strictly professional one at work. She had said that she felt uncomfortable and uneasy and was concerned about approaches he had made in an effort, as she saw it, to continue further a personal relationship. Mr Lee suggested (I emphasise the word "suggested") the applicant should desist from any personal approaches and, for a fortnight, only make professional contact with Miss Stowell via a Mr White who was her supervisor. Mr Lowe agreed (I emphasise the word "agreed") having explained at some length to Mr Lee the history of his social and personal relationship with Miss Stowell.

6 The applicant was upset at even the suggestion that his contact with Miss Stowell could in any way be interpreted by her as being anything akin to any form of harassment and the matter lay heavily upon his mind, so much so that the following day he asked his own line manager, the respondent's managing director, Mr Gary Plowman, to help him leave the company's service which he felt he ought to do. Mr Plowman sought to dissuade him from such a course of action by counselling him to pause and see how things developed over the next fortnight during which he, the applicant, had agreed to abide by Mr Lee's suggestion made the previous day. Various conversations then ensued between Mr Lee and the applicant and indeed between the applicant and Mr Plowman, the latter assuring the applicant that there was no question of his being accused of doing anything wrong nor was it thought that he had. Still Mr Lowe remained unhappy and sought to meet Miss Stowell in the presence of someone else from the company. Despite Mr Lee advising against such a course Miss Stowell was nonetheless asked whether she was prepared to talk to the applicant in the presence of a third party. She declined. The applicant continued to agonise over the situation and during the night of 7/8 December concluded that the proper course was for him to leave the company's service."

The following morning Mr Lowe resigned by letter and stated that his last working day would be 9 March 2001.

5. These findings of fact were based upon the evidence of Mr Lowe himself because, of course, in a constructive dismissal case the onus was on Mr Lowe to prove that he had been dismissed. At the conclusion of his evidence the Tribunal dismissed his claim. The conclusions of the Employment Tribunal are set out in paragraphs 10 through to 15 of its Extended Reasons. It is sufficient for us to read paragraph 15 only:

"15 With the applicant having stated his own case it is plain to all members of the tribunal that there is simply no case for the respondent to answer. The onus in these cases rests upon an applicant and he has singularly failed to establish any even unreasonable conduct on the part of the respondent. It is plain that the applicant left simply because he felt emotionally incapable of continuing to work in the same place as someone for whom he had formed a strong attachment. The applicant's claim fails and is dismissed."

6. In his Notice of Appeal Mr Lowe put forward essentially two grounds of appeal. The first is what has been argued today, which I will call ground (A), and will deal with shortly. The second was ground (B). Ground (B) simply says this:

"The Tribunal was conducted in such a way that gave the applicant little or no prospect of success."

7. Essentially, that was an allegation of bias. In ordering a preliminary hearing on 5 March 2003 the President gave standard directions for a preliminary hearing and, in particular, paragraph 5 of the Order of 5 March 2003 sets out the standard direction which is that in a case of bias Mr Lowe must file and serve on the Respondents an affidavit setting out his allegation of bias within 21 days. On receipt of such an affidavit by this Tribunal it would be sent to the members of the Employment Tribunal for their comments, so that those comments would be with us today at the Preliminary Hearing. Mr Lowe accepts that he did not comply with paragraph 5 of the Order and accordingly, ground (B) of the Notice of Appeal is dismissed.
8. We turn to paragraph (A). It is trite law that for an Applicant to succeed in a case of constructive dismissal he has to show that there has been a fundamental breach of the contract of employment by the employer forcing or compelling him to leave the employment.
9. Mr Lowe has today put his case, if I may say, cogently and very clearly to us. His case, in essence, is that if one looks at his contract of employment there was a clear disciplinary procedure which should be carried out by the employer when there was an allegation of misconduct against him. An allegation of sexual harassment was an allegation of misconduct and, therefore, the employer should have triggered the disciplinary process, giving Mr Lowe the opportunity to put his case clearly, confront his accuser and persuade his employer that he was not guilty of any form of misconduct.
10. The failure, Mr Lowe says, to hold a disciplinary hearing amounts to a fundamental breach of contract which caused him to resign. We disagree. What is clear in this case, from the passages of the Employment Tribunal decision I have recited, is that the meeting with Mr Lee on 14 November 2000 was not a disciplinary or formal meeting; it was an attempt to resolve what could potentially become a very difficult situation by an informal means. We know of no rule of law which says that an employer is not entitled to attempt to resolve a potential disciplinary problem by informal means. The proposal by Mr Lee (and they were suggestions, as recorded in paragraph 5 of the decision) was twofold. First, that Mr Lowe should desist from any personal approaches to Miss Stowell and, second, for a fortnight only make professional contact with her via a Mr White who was her supervisor. They seem to us to be a modest and sensible approach to diffusing a potentially difficult situation. The Tribunal record, in paragraph 5 of its decision, that Mr Lowe agreed to those suggestions, having explained at some length to Mr Lee the history of his social and personal relationship with Miss Stowell.
11. There matters rested until either later that day, pace Mr Lowe or the following day, pace the Employment Tribunal: see paragraph 6 of its decision. Mr Lowe went to see Mr Plowman, the managing director and asked for assistance in leaving the company, because that is what he felt he ought to do. Mr Plowman sought to dissuade him, as indeed did Mr Lee. However, they were unsuccessful and the result was the resignation letter of 8 December 2000.
12. In our view there was no fundamental breach of contract of the contract of employment in this case. The employers were fully entitled to seek an alternative to a formal disciplinary process which well have resulted in Mr Lowe's dismissal for gross misconduct. There is no breach of contract at all, let alone a fundamental breach of contract. The Employment Tribunal reached the right decision. There was no error of law and therefore this appeal is dismissed at this stage.