United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr R Jennings, In Person 42 Moresdale Lane Seacroft LEEDS LS14 6SY
For the Respondents	Mr J Herd, Solicitor Of- The Anderson Partnership Solicitors 125 West Regent Street GLASGOW G2 2SA


 


LORD JOHNSTON:

1. This is an appeal at the instance of the employee who represented himself against a finding of the Employment Tribunal sitting in Glasgow that he had not been constructively dismissed from his employment.
2. The background to the matter is that the appellant worked for the respondent's as an engineer, commencing his employment in 1998. In due course, he was transferred to Scotland, and, thereafter, relations between himself and his managers in England deteriorated.
3. On page 7 of the decision, the Tribunal, having correctly stated the law, go on to consider the facts in the following way:-

"Mr Forbes argued for the applicant that there had been a number of such breaches. Having been given the authority of a regional manager, the respondents had not treated him as such. They had sent teams into his area without telling him. They had given him the title, but nothing else indicating his function. There was an implied term that he should have adequate resources to do the job, and they had breached that term. The failure to provide assistance when asked, and the failure to provide a second vehicle at all were just examples. There was a penny pinching attitude which held off spending money until the last moment, regardless of the stress to the applicant. The events of 2^nd September had been the final straw. Again, a team had been sent into his area without his being informed, and the treatment by Mr Poolman of the team merely confirmed his views of his employers. Trust and confidence had evaporated.

In relation to the loss of authority argument, we felt that this did not amount to a breach. We agreed with Mr Guthrie that the applicant had higher immediate expectations of his new position than the circumstances warranted. The lack of communication to and from Peterborough was clearly a factor, but the applicant should have been resilient enough to overcome these problems; this is part of the function of management. He should have been able to fight his own corner, and grow his authority as the Scottish business grew, in accordance with the longer term aims of Mr Poolman.

The applicant was on stronger ground in relation to the lack of resources argument, particularly in regard to the failure to provide a second vehicle. To promise what was recognised by both sides as a vital resource over a period, and the effectively renege on that promise for financial reasons is in our view calculated to strike at trust and confidence. Production R33 gives Mr Poolman's reasons, but they do not amount in our view to an adequate response to this particular request, which had been on going since before December the previous year, and which had apparently been agreed in December by Mr Poolman.

If at that point the applicant had resigned, in response to this breach, then the respondents would have been in difficulty. But he did not; he ameliorated his problems in another way. He reduced his hours to the contractual minimum of 40 plus. He only resigned some three months later, after events which had only a tenuous connection with the earlier breach. These events which might well have amounted to unreasonable conduct on the part of the respondents did not directly affect the applicant, and could not of themselves be said to be a further breach of his contract.

In any event, we do not believe that the resources argument was the real reason for the resignation. Mr Hooper told us that the applicant had told him that it was the audit issue. The originating applications says the same thing; it is a reasonable inference from that to say that the applicant initially told his solicitor that this was the last straw, and was the major issue for him.

So far as the audit issue is concerned, it cannot, in our view be said to amount to a breach in all the circumstances. It might have been such if the applicant had been unfairly singled out, or victimised in some way. However, the evidence pointed to the exercise being of general application to all engineers working on the Fractal system. The applicant seemed to think that his level of expertise, combined with his managerial role, should have exempted him from the technical nature of the audit and that he was being demeaned in some way. In our view, he was not entitled to take this position; the respondents are perfectly entitled to check up on the work carried out by him and other employees.

Thus, only the resources argument stands up, and it is only available to the applicant in late May and shortly thereafter. The applicant did not resign in response to that, but to an unrelated matter some three months later. In our view this gap is too long. The applicant has by his actings has accepted the earlier breach, and we cannot regard the later events as a free-standing breach justifying resignation.

We have no doubt that the applicant suffered as a result of the respondents actings; by some lights, they could be regarded as unreasonable, but they do not, taken together, amount to the situation considered in Lewis v Motorworld Garages Limited 1986 ICR 157 (pages 169D-170A)."

The application is accordingly refused."

4. Before us, Mr Jennings, firstly, made complaints about the procedure that had taken place at the hearing. He maintained that his witness, Mr Dobson, was denied the opportunity to give evidence by the Chairman, against his wishes. He also complained that his wife's evidence had been materially restricted, and, that if either, or both of these aspects of the matter had been properly handled, he would have had further evidence in his favour.
5. We are not concerned to deal with this matter having regard to the fact that the appellant was legally represented by a competent firm of solicitors, the solicitor in question informing the Chairman according to the Chairman's response to us, that the evidence would have added nothing. It is therefore to be quite understood why the Chairman decided to hear no more.
6. The remaining parts of Mr Jennings' submissions to us were concerned with the overall pattern which he presented upon the evidence, disputing various aspects of the Tribunal's decision. In essence, he said that he had been made to suffer a number of problems which had rendered him ill with stress, and, looking at the matter cumulatively, it should have been enough to entitle him to resign.
7. We have to note that at the beginning of the decision, the Tribunal express a view as to the liability of the evidence of the appellant before them, in the following terms:-

"The tribunal heard firstly from the applicant. He was rather quietly spoken, and clearly had a sense of indignation about the way matters had turned out. He was not inclined to exaggerate or embroider his evidence, although he did react to hostile questioning. Generally, we found his evidence to be credible, in the sense that the applicant clearly believed that what he was saying was the truth. On the other hand, he had a very fixed perspective on events, and looked at overall, we came to the conclusion that this may have from time to time coloured his judgment. We also heard briefly from the applicant's wife, who generally spoke in support of her husband, and also gave limited evidence from her own direct knowledge. She was more outgoing, again exhibiting a substantial sense of grievance. To the limited extent of her evidence, we found her credible and reliable."

8. Mr Herd, appearing for the respondents, submitted that, properly understood, the Tribunal had applied its mind to all the relevant factors against their finding of reliability and had reached a conclusion they were entitled to reach.
9. It is important that it be understood that the role of this Tribunal in a case of this type, that is to say, where the law is settled on what is to be determined in its application to the relevant facts, the assessment of those facts, is, essentially, for the Tribunal of first instance and this Tribunal will not interfere with such an assessment unless it is shown, that upon the evidence, the Tribunal has manifestly fallen into error.
10. It, secondly, has to be understood, that to achieve a constructive dismissal, whether out of one incident or a number of incidents, looked at cumulatively, the overall position must be that the Tribunal must be satisfied that the conduct of the employer was effectively repudiating the contract of employment and this is a very high test.
11. Against that background, we consider that the Tribunal, in the passage we have quoted, assesses each aspect of the evidence that they consider to be relevant and reach a conclusion upon them individually and cumulatively that they were entitled to achieve. The appellant plainly had grievances, but there is no evidence of sufficient weight to support the conclusion that the employer had repudiated the contract.
12. We are extremely sympathetic to Mr Jennings' attitude, who plainly feels strongly that he was very badly treated. At the end of the day, however, given the limited role of this Tribunal, there is nothing we can do. The appeal is therefore refused.