United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT In Person
For the Respondent	THE RESPONDENT NEITHER PRESENT NOR REPRESENTED


 


JUDGE WAKEFIELD

1. This is an appeal by Mr Mark Thackeray from a decision of an Employment Tribunal sitting at London South on 2 September 2002 by which his complaint of unfair dismissal was dismissed.
2. The Appellant had resigned from his employment on 11 February 2002 and the only issue before the Employment Tribunal was whether the circumstances in which he resigned were such that he was entitled so to do and was thereby constructively dismissed.
3. In the decision promulgated on 3 December 2002 there were extensive findings of fact which are not in dispute in this appeal. The essence of the relevant history is that following a complaint from a customer the Appellant was suspended and an investigation ensued followed by a disciplinary hearing.
4. During the hearing the Appellant alleged that in performing his duties in the manner in which he had, he had been following procedures as instructed by his line manager Mr Dymock. The Appellant admitted that these were not the procedures otherwise laid down by the Respondent.
5. At the conclusion of the disciplinary hearing the Appellant was found to have failed to follow correct invoicing and authorisation procedures and he was issued with a final warning which was to remain on his file for twelve months. The suspension was lifted. The Appellant appealed against the imposition of the final warning, raising again amongst other issues that he had been following the procedures required by Mr Dymock.
6. His appeal was dismissed and the final warning remained on his file. Just over two weeks later the Appellant wrote a detailed letter to Mr Dymock raising nine specific issues and indicating that in his view the disciplinary action taken against him, taken together with other management action, had undermined his position so that there was a total breakdown of mutual trust and confidence.
7. Mr Dymock replied, again in some detail. The following day the Appellant resigned and in his resignation letter stated that he did not consider Mr Dymock's response to be a satisfactory answer to the issues raised and that the breakdown of trust and confidence was more blatant than ever. He added that he had no option but to resign.
8. In paragraphs 4 and 10 of the extended reasons the Employment Tribunal set out the essence of the Appellant's complaint. They say:

"4. The Applicant's constructive dismissal case was based on a last straw scenario. The Applicant alleged that there were various incidents of an undermining nature prior to the disciplinary action and that the "catalyst that finally brought matters to a head" was the imposition of the final written warning when he had committed no disciplinary misconduct.

10. The Applicant's principal complaint before the Tribunal was that he should never have been disciplined. His argument ran that he was carrying out the instructions given to him by his immediate line manager, Mr Dymock. That was his principal line of argument both at the disciplinary hearing and at the appeal hearing."

In paragraph 11 of the Employment Tribunal's reasons there is an important finding of fact in the following terms:

"11. The Tribunal members note that neither Mr Copeland nor Mr Marshall (and they are the two members of the Respondent's staff who conducted respectively the disciplinary and appeal hearings) asked Mr Dymock whether he had given the Applicant any instructions which conflicted with the written instructions. The Applicant was disciplined and his appeal rejected without Mr Dymock having been asked to comment upon the Applicant's explanation as to his departure from the written instructions."

9. The Employment Tribunal then unanimously dismissed the complaint of unfair dismissal finding that there had been no dismissal. The members of the Tribunal, however, differed in their reasoning in reaching that conclusion. We need only refer to the reasoning of the majority as this constitutes the relevant findings for the purposes of this appeal. They say in paragraph 14 that they:

14. "…considered that there was potentially a fundamental breach of contract by the Respondent ie a breach of the implied duty of trust and confidence when the Respondent dismissed without further investigation the Applicant's claim that he had been following conflicting instructions given to him by his manager, in particular without asking the manager whether such conflicting instructions had been given. Those Tribunal members (that is the two in the majority) considered that the fundamental duty of an employer in carrying out a disciplinary process must be to act fairly including investigating whether an explanation given by a member of staff has any credence. The failure by the Respondent in this case in making enquiries of the Applicant's line manager in the view of Mr Bluestone and Mr Peters, could amount to a breach of contract and a fundamental breach which could justify a resignation amounting to constructive dismissal."

10. Having so found, the majority in the Tribunal then continued in their paragraphs 15 and 16 as follows:

"15. However in this case the Applicant did not know that the Respondent had made no enquiries of Mr Dymock. What the Applicant knew was that his explanation had not been accepted and he had been issued with the final written warning. The issue of a final written warning by itself does not amount to a fundamental breach of contract. As the Applicant was not aware of the failure to make enquiries of Mr Dymock, Mr Bluestone and Mr Peters conclude that the Applicant cannot have resigned in response to such a fundamental breach of contract."

And they go on in paragraph 16 to refer to the resignation letter as confirming their opinion.

11. The bases of the challenges before us to this decision as set out in the Notice of Appeal are the following. Firstly, it said that the Tribunal erred in law in finding that the Appellant was not unfairly dismissed, or made a perverse finding in that respect, in that the Employment Tribunal failed to make a finding on the central issue in the case namely whether the issuing of a final written warning constituted a breach of the implied contractual term that the Respondent would not without reasonable and proper cause conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between the Respondent and the Appellant. The Notice of Appeal then sets out the circumstances said to be relevant to that.
12. The second ground of appeal is that the Employment Tribunal erred in law in holding that the Appellant could not succeed in his complaint of constructive dismissal because he did not know that the Respondent had failed to investigate his explanation. These grounds have been expanded before us in oral argument today by Counsel on behalf of the Appellant.
13. There has been no appearance by or on behalf of the Respondent which is now in liquidation nor have any representations in writing being made on its behalf in opposition to this appeal. We are satisfied that in paragraph 14 of the decision the Employment Tribunal, having previously in the decision identified the correct tests in law, reached an entirely proper conclusion, namely that the Respondent breached the implied duty of trust and confidence by dismissing without further investigation the Appellant's claim that he had merely been following the instructions of his line manager. It necessarily follows in our view that in the circumstances the Respondents should not have imposed the sanction of the final warning. This being so, we find that the Employment Tribunal fell into error when they concluded that the Appellant could not in those circumstances claim to have been constructively dismissed since he did not at the time he resigned know that no proper enquiries had been made of Mr Dymock.
14. The question whether circumstances are such as to entitle an employee to resign is to be answered on objective criteria. There were such circumstances here as the Tribunal has found. It has recently been said in this Employment Appeal Tribunal in the case of Stanley Cole (Wainfleet) Limited v Sheridan [2003] IRLR 52 that a final written warning is an extremely serious matter. It was said in that case in paragraph 75 of the decision that such a warning is given for conduct which just stops short of that justifying dismissal. It is often the penalty imposed when a dismissal is an obvious and permissible sanction but for reasons personal to the employee is not imposed. It involves a very real penalty in that there is a risk that should the employee commit any other offence within the period of a year, however minor it may seem to be on its own, it may justifiably be taken to give grounds for dismissal. It may be regarded by an employee as a statement that the employer has in mind dismissal and just pulls back from the brink.
15. We therefore find that, leaving aside the irrelevant factor, the Employment Tribunal properly concluded that the Appellant was dismissed. There was no reason put forward within the meaning of Section 98 of the Employment Rights Act 1996 for that dismissal, nor any basis suggested as to how it could be fair. We therefore substitute our own finding that the Appellant was unfairly dismissed. This appeal is allowed and the case is remitted to a differently constituted Tribunal for consideration of remedy.