United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr R CONWAY (Representative) Messrs Bonnar & Company Solicitors Stirling Street Airdrie ML6 0AH
For the Respondent	Miss J WOODWARD (of Counsel) instructed by: The Co-operative Employers Association PO Box 53 New Century House Manchester M60 4ES

SUMMARY

Unfair Dismissal – Constructive dismissal

Was the Employment Tribunal entitled to find that the conduct of the employer did not amount to a repudiatory breach? Tribunal held there was no constructive dismissal. EAT found that it was entitled so to conclude.
 


THE HONOURABLE MR JUSTICE ELIAS

1. This is an appeal against the unanimous decision of the Employment Tribunal sitting in Glasgow which held that the Appellant's application for unfair dismissal should be dismissed. The Tribunal provided summary reasons for its decision. It was apparently asked for fuller reasons but out of time, and that application was refused. Having said that, the summary reasons are detailed and the decision is seven pages long. The background to the case is as follows.
2. The Applicant was employed by the Respondent, the Cooperative Group at their branch as Creagorry in Benbecula. She was employed for some 22 years until she resigned on 12^th April 2003. She was at that time a checkout operator working 20 hours per week. She contended that she had been constructively and unfairly dismissed. The Tribunal found that there had been no repudiatory breach of contract by the employers and therefore, as a matter of law, that there had been no dismissal. She contends that in reaching that conclusion the Tribunal erred in law.
3. The basis of her case was that she had been the subject of bullying and intimidation and that a deliberate attempt had been made to accuse her of theft. There had been an investigation into that matter. She contended that the investigation had been inadequate and that overall there had been a breach of the implied duty of trust and confidence, such that she was entitled to leave and claim constructive unfair dismissal.
4. The event which triggered the resignation occurred on the morning of 7 February 2003. A fellow employee, Morag Anne McInnes, mislaid her purse. The store manager decided that each member of staff should be searched before leaving the store. The purse was found in the Appellant's bag. Her reaction was that someone else had put it there and she thought that this had been Morag herself, aided by her sister-in-law Elizabeth McInnes The manager treated this incident as a mistake and indeed Morag herself, it appears, was not contending that there had been any deliberate theft by this Appellant..
5. Nevertheless, the Appellant was, perhaps understandably, unhappy about the matter and she consulted her solicitors. They wrote to the employers. They told them that the Appellant was upset and distressed and believed that she was under suspicion of theft. They asked for the whole matter to be investigated by an independent investigator. They also sought a formal letter confirming that there were no outstanding allegations of theft against her and they asked for energetic attempts to be made to establish who had put the purse in the bag and for disciplinary action to be taken against that person. It is pertinent to note, as the Tribunal did, that no reference was made to any matters occurring prior to the purse incident in that letter.
6. Mr Harrison, the Human Relation Officer, and Mr Summers, the Operations Manager visited the Creagorry store on 19 March 2003. They carried out an investigation. They interviewed members of staff who, they understood, had been involved in the incident. These included Morag Anne McInnes and various members of her family. It was during this investigation that managers were told for the first time of the alleged bullying and intimidation directed at the Appellant and certain other employees by the McInnes family.
7. The conclusion of these managers was that they did not consider that the allegations of intimidation and bullying were sufficiently substantial to justify any action in respect of them. Some were based on hearsay and others were directed at other employees and not at the Appellant, including, for example a particular incident when it was alleged that Morag McInnes pushed a supermarket trolley into a fellow employee. As to the purse incident, they did not consider that it disclosed sufficient evidence which was strong enough to justify taking disciplinary action against anyone. Equally, however, they concluded that the Appellant did not stand accused and indeed at no time had she been accused of theft. A letter to that effect was sent to the Appellant's solicitors. It emphasised she was not under suspicion of theft, that no allegation of theft had been made against her, but also that there was no evidence to support the allegations of bullying by other staff. The letter also noted that a number of employees raised grievances at the investigation but they had not been raised through the grievance procedure at any earlier stage.
8. A proposal was made in the letter that the Appellant might, in the circumstances wish to work at another store which was in fact nearer to her home. The solicitors responded, contending that the Appellant believed she had been the victim of a campaign of harassment. They said that she had made a complaint about it to her previous manageress, Miss McDonald. Miss McDonald gave evidence but she did not support the Appellant's case. The Tribunal, moreover, found that she was an impressive witness whereas, by contrast, they found that the evidence of the Appellant and the witnesses called in support of her was, as they put it, not "entirely convincing." They felt that she had exaggerated certain incidents.
9. The Tribunal concluded that Morag McInnes had indeed been difficult and uncooperative and even rude to certain fellow employees, but her conduct was not specifically directed at the Appellant. The most significant incident involved pushing a trolley into another employee. The Tribunal also put some weight, as we have said, on the fact that the grievance about earlier intimidatory and bullying conduct had not been the subject of the complaint at the relevant time. The Appellant said that it would have been pointless to complain, but the Tribunal found that explanation to be unconvincing. The Tribunal commented that if matters had been as bad for so long as alleged by the Applicant and her witnesses, then it was incredible that no one would have raised it at a higher level than local management.
10. In conclusion, the Tribunal held that there had been no breach of contract by the employers. They had taken action in relation to the purse incident, the investigation had been reasonable; they had done indeed what the Appellant's solicitors had specifically asked for, and they had given the assurance which the solicitors had sought. We reiterate, as the Tribunal did in the last paragraph of their decision, that the Tribunal was satisfied that any suspicion at all in relation to the purse incident against the Appellant would be wholly unfounded.
11. The Tribunal felt that the employer's conclusions following the investigation were conclusions which a reasonable employer could properly reach on the basis of the evidence they had heard. It is not disputed that the question whether or not conduct amounts to a repudiatory breach of contract is ultimately a question of fact, see Pedersen v Camden London Borough Council [1981] IRLR 173, for Lawton LJ, at paragraph 22.
12. The conclusion can only be challenged, therefore, if it is perverse, i.e., a conclusion that no Tribunal properly could reach on the evidence before it. That is not what Mr Conway submits here. What he does say, however - and it became clear as the argument developed that this was really the heart of this case - is that there was a failure by the Tribunal to make certain material findings of fact. In particular, he took us to the Appellant's statement of case, which highlighted a number of specific incidents which she had alleged had occurred: certain physical abuse, being required to take her tea-breaks alone, being unfairly singled out for criticism while customers were present, being referred to as a 'black widow' and one or two others. He says that if one looks at the decision of this Tribunal there is simply no specific reference to any of those matters. They do not make any findings directly in respect of them. They merely make findings in respect of the purse incident itself.
13. We were reminded by Miss Woodward for the Respondents of the general principles applicable to a reasons challenge of this kind. Well-known cases such as Meek v City & Birmingham District Council [1987] IRLR 250, and UCATT v Brain [1981] IRLR 224, were drawn to our attention. They emphasise that the reasons are not intended to be elaborate or involve refined legal draughtsmanship but rather are to enable the parties to know why they won or lost. Mr Conway says that on that basis here the Appellant does not really know why she has won or lost. She does not know what the Tribunal's conclusions were in relation to these other incidents which occurred prior to the matter involving the purse.
14. We think there are a number of points to bear in mind when considering this Tribunal decision. First, as Mr Conway accepted, the focus before the Tribunal was the purse incident. That had been the central concern. That was a matter that had been raised by solicitors on the Appellant's behalf and when it was raised, none of the other issues had been identified. As we have said they only emerged at the time when the investigation was under way. It is hardly surprising, therefore, that they would not have been perceived as being central to the case which was then being advanced by the Appellant before the Tribunal. Second, as Miss Woodward points out, there are a number of material findings by the Tribunal which do indicate in broad terms what they thought of the evidence given by the Appellant in relation to these matters. She highlights certain conclusions which we have already outlined: the fact that they did not find the Appellant's evidence convincing; the fact that they found Mrs Macdonald, on the other hand, to be an impressive witness. She did not support the account given by the Appellant. They did not consider that she could be said to be the victim of intimidation and harassment at the hands of Morag McInnes, as difficult as that employee plainly was, and they obviously justifiably considered that the failure to raise these complaints at any earlier stage cast some doubt on the gravity of these particular incidents.
15. We also bear in mind a very important point that these were summary reasons. One would not expect as detailed an account at summary reasons as one might have in the full reasons. This was before the changes made in the more recent rules. Bearing in mind these matters we have to say that we are fully satisfied that these reasons are sufficiently detailed. It is true that the Appellant does not know what the Tribunal thought about the detailed incidents that occurred, but what the Tribunal had to decide was whether, taken overall, the employer's conduct could properly be characterised as gross misconduct such as to entitle the employee to leave. They dealt with the purse incident, the primary incident, in some detail. They gave reasons why they did not accept much of the account given by the Appellant in relation to the other matters: the exaggeration, and the fact that no earlier complaints had been made prior to the central complaint, and we think it is clear that they had come to the view that whatever misdemeanours there may have been, they were plainly not sufficiently grave as to constitute gross misconduct. We think they were fully entitled to reach that conclusion.
16. We should also mention another matter which was relied upon by Mr Conway. The Tribunal noted that:

"it would be extremely difficult for an employee to make out such a case in relation to conduct of the type involved in this case on the part of fellow employees where, as here, no complaint had been made to the employer and thus no opportunity given to intervene and take appropriate action to prevent the conduct continuing."

17. Mr Conway submitted that the Tribunal ought to have found that the company were vicariously liable for the conduct of Morag McInnes and Aggie Shepherd. We think there are two difficulties with this point. First, it is plain that in certain circumstances, an employer will be vicariously liable for the acts of employees, but it does not follow that where an employee acts unreasonably towards a fellow employee that that means that there is going to be a repudiatory breach sufficient to entitle the employee to leave. It may well depend upon the seniority of the manager. In many cases - particularly where fellow employees of a similar rank are concerned, or even perhaps where the employer is of a slightly higher rank - the expectation will be that superior managers will have an opportunity to put the matter right. It may be difficult to say that there is a undermining of the duty of trust and confidence without more senior management being given that opportunity. That same opportunity may not be appropriate where a senior manager acts in wholly unacceptable ways to a more junior one.
18. The Tribunal's observation, it seems to us, was perfectly appropriate in the circumstances of this case, particularly since the employee had asked for the matter to be investigated by management itself. In any event, what the Tribunal found in terms was that the conduct relied upon to constitute the constructive dismissal by Morag McInnes was not sufficient to amount to a repudiatory breach of contract. That was a conclusive finding, it seems to us. It takes us back to the central complaint here, which was that the Tribunal failed to make satisfactory and full findings of fact to enable the Appellant to know why she had won or lost. For reasons we have given we have rejected that part of this case. It follows that the appeal fails.