United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellants	Mr I D Truscott, Queen's Counsel Instructed by- Messrs James & George Collie Solicitors 1 East Craibstone Street ABERDEEN AB11 6YQ
For the Respondent	Mr F Lefevre, Solicitor Of Quantum Claims Employment Division 70 Carden Place Queen's Cross ABERDEEN AB10 1UP

SUMMARY
UNFAIR DISMISSAL

Constructive dismissal

Effective cause


 


LORD JOHNSTON:

1. This is an appeal at the instance of the employer against a finding of the Employment Tribunal sitting in Aberdeen, by a majority, that the respondent had been unfairly constructively dismissed by the appellants. A monetary award was made which is not challenged as regards amount.
2. The background to the matter is that the respondent worked for the newspaper as a business journalist in Inverness. Problems occurred with his line manager which eventually caused him to go off work with stress and related symptoms. It was not disputed by Mr Truscott, Q.C., appearing before us, that he had been treated badly by the relevant employer and the conduct amounted to a breach of contract. The issue before us was whether or not, however, the Tribunal had properly determined that the reason for the employee's subsequent resignation, which was some 12 weeks after he finally ceased to work, was, effectively, those breaches of contract and not some other reason.
3. 3.                  There was correspondence on a tripartite basis after the respondent left work over the relevant 12 week period as between himself, the newspaper and his trade union. They wrote a number of letters to the employer but received no reply, there apparently being a long history of acrimony between the union and the newspaper. However, the correspondence between the respondent and the appellant, basically concerned with the sick pay during the relevant period which was reduced in stages in accordance with the terms of the contract. The complaints or requests being made by and on behalf of the respondent, was that the company should exercise an apparent discretion it had within that contract, to heighten the level of sick pay actually paid over the relevant period.
4. The Tribunal, having determined by a majority that the conduct in question of the employer, constituted a fundamental breach of contract. They then went on to consider the question of causation, and, in particular, as follows:-

"The applicant's letter of resignation does not give any reason as to why he considers himself constructively dismissed. Absence of a reason is of course not fatal Weatherfield v. Sargent (1999] IRLR 94. The respondents' position was that the real reason for the applicant leaving was that in terms of the Company's sick pay scheme he would no longer be receiving anything other than statutory sick pay. In support of this they state that the letters from the trade union refer to sick pay and the timing of his resignation would tend to suggest that it was based on considerations relating to sick pay rather than the bullying/harassment.

The Tribunal did not find that borne out by the evidence. The very first letter from the applicant's trade union makes reference to the complaint of bullying and harassment. It is clear that it is this that the applicant is looking for a resolution of. The sick pay is another issue entirely. It was no part of the applicant's case before the Tribunal that the respondents had been in breach of contract in relation to payment of sick pay to the applicant. Payment of additional sick pay over and above the strict contractual entitlement was entirely a matter for the discretion of the company and it was accepted that there were no circumstances such as would justify this.

The Tribunal therefore considered that the applicant had resigned because of the fundamental breach by the respondents (albeit that the minority of the Tribunal considered that there had been no fundamental breach). The majority of the Tribunal therefore found that the applicant had been unfairly constructively dismissed by the respondents."

5. Mr Truscott, Q.C., appearing for the appellants, referred us to a number of cases:-

Western Excavating (E.C.C.) Ltd. v. Sharp [1978] IRLR 27 CA

W E Cox Toner (International) Ltd v Crook [1981] IRLR 443 EAT

G W Stephens & Son v Fish [1989] ICR 324 EAT

Joseph Steinfeld v Reypert (EAT 550/78)

Weathersfield Ltd v Sargent,[1999] IRLR 94 CA

Jones v F Sirl & Son (Furnishers) Ltd [1997] IRLR 493 EAT

6. In essence, Mr Truscott's complaint was that the Tribunal had not addressed the rightful issue of what was the effective cause of the resignation. They had, he accepted, identified breaches of contract and they had addressed the question of what effect, if any, the matter of delay might have in a question of affirmation but they were silent on the question of effective cause as between the various factors coming into play, namely, the breaches of contract, the issue of sick pay, and, indeed, the employee's health. That being so, the Tribunal had not properly gone about their task and the matter would have to be reheard.
7. Mr Lefevre's position was eminently simple. He simply referred to the passage we have already stated, and, under reference to his own written submissions to the Tribunal which were before us in our bundle, he maintained that the issue of effective cause was plainly before the Tribunal, and, indeed, they had addressed it and found it to be the fundamental breaches of contract thus determined by a majority.
8. We have no hesitation in accepting Mr Lefevre's approach. The last paragraph which we have quoted makes it clear that, having eliminated the question of sick pay as being an effective cause on the evidence, the only other cause they found left to be established was the breach of contract, and, effectively they so state.
9. For this simple reason we consider this appeal must fail and it will be refused