United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR K KNIGHT (of Counsel) Free Representation Unit
For the Respondent	MR A McLAUGHLIN (of Counsel) Instructed by: Messrs Atkins Law Solicitors The Red House St David's Hall Exeter EX4 4BS


 


SUMMARY

Unfair Dismissal: Constructive dismissal

In a claim of constructive unfair dismissal, the Employment Tribunal was not required to determine whether the Respondent committed the criminal offence of destroying birds' nests in order to decide whether the Respondent destroyed mutual trust and confidence.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about the prosaic subject of constructive unfair dismissal in the setting of a luxury holiday complex for anglers and country lovers in Devon and offences under the Wildlife and Countryside Act 1981. The Judgment reflects the views of all three members. We will refer to the parties as Claimant and Respondent.

Introduction

2. It is an appeal by the Claimant in those proceedings against the Judgment of an Employment Tribunal chaired by Employment Judge Christensen sitting at Exeter registered with reasons on 3 May 2007. The Claimant represented herself and today has the advantage to be represented by Mr Keith Knight of Counsel giving his services on behalf of FRU. The Respondent is today represented by Mr Andrew McLaughlin of Counsel. The Claimant claimed unfair dismissal and made other claims not relevant to the appeal. The Respondent contended it did not dismiss her and denied any unfairness.

The issue

3. The Employment Tribunal held this was not a case of a last straw leading to a resignation but was in response to a specific event in July 2006. The question was whether the Respondent had committed a fundamental breach of contract and the Claimant had responded to it by resigning. It decided that the Claimant resigned but that she did not do so in response to a fundamental breach of contract, the Tribunal dismissed a claim of detriment and dismissal by reason of whistle blowing. There is no appeal. It upheld a number of her smaller claims as to which there is no appeal by the Respondent. Directions sending this appeal against the unfair dismissal judgment to a full hearing were given in Chambers by His Honour Judge Burke QC.

The legislation

4. Section 95(1)(c) of the Employment Rights Act 1996, constructive unfair dismissal, entitles employees to claim that they have been dismissed if they resigned in circumstances entitling them to leave without notice by reason of the employer's conduct. Relevant also to this case is s1(1)(b) of the Wildlife and Countryside Act 1981, which provides as follows:-

"If any person intentionally takes, damages or destroys the nest of any wild bird while that nest is in use or being built … he shall be guilty of an offence."

That is a summary offence. Prosecutions are brought by the Crown although the Royal Society for the Protection of Birds (the RSPB) has a status in the proceedings, and whether or not it is the prosecutor it is a very important guardian of the law.

The facts

5. The two Respondents in this case jointly carry on the business of the Anglers Paradise, which provides a quiet setting for people to have a luxury holiday and to fish in a sympathetic countryside environment. It employs about 20 people. The Claimant was employed front of the house. The Respondent also employed an Estate Manager, a Mr Couzens. The Claimant is very concerned about wild life and particularly in the interests of birds for she is herself a member of the RSPB. In addition to the anglers, house-martins are frequent visitors to Anglers Paradise, and they nest. It gives great pleasure to the Claimant to see these birds particularly during their mating and nesting season. She noticed there were active nests. To her dismay she found an entry in a book of instructions given to the staff that the nests should be taken down. This took place in June 2006, and she took her concerns to Mr Couzens. Her concerns were that active nests should not be destroyed. The Tribunal found this:

"The claimant has told us that Mr Couzens reassured her that no steps would be taken to remove the house-martin nests and the claimant was reassured. Mr & Mrs Gregorek returned from their holiday at the end of June and nothing more was said by the claimant to anybody regarding the concerns that she had brought to Mr Couzens' attention."

6. The Tribunal disbelieved passages of Mr Couzens' evidence. That passage while not in terms a finding that Mr Couzens reassured the Claimant amounts to it for why else would the Claimant say nothing more about this matter unless she had been assured that work would not be done to take down the nests while they were active?
7. The Tribunal then says this:

"5. The next event takes place on 14 July when the claimant notes that the nests that she was concerned would be removed had been removed. This caused her anguish given her particular interest in wildlife and birds in particular. Her evidence to us is this. That at that exact moment on 14 July the working trust between herself and Mr & Mrs Gregorek had been broken and was completely irretrievable. The claimant's evidence is that it was the discovery of the removal of the house-martin nests that made it impossible for her to carry on working with the respondents. There was an exchange between the claimant and Mr & Mrs Gregorek following her discovery of the removal of the nests. We are, however, satisfied that it was nothing in that exchange with Mr Gregorek that caused the claimant to resign. It was simply the discovery by her that the house-martin nests had been removed.

6. The claimant left her employment in the early morning of 14 July after the discovery of the removal of the nests and her conversation with Mr Gregorek. She did not return to work thereafter. She did report her concerns both to the Police and to the RSPB. An investigation was commenced between those two bodies which ultimately concluded that no prosecution would be brought as it was concluded that there was insufficient evidence to justify the prosecution of the Gregoreks."

8. As can be seen, the Claimant was very exercised on finding that the nests had been taken down. The Tribunal rejected the Claimant's case that this was one of a series of events contributing to a resignation pursuant to the last straw doctrine.
9. The Tribunal then said this:

"13. …Mr Couzens was aware of the claimant's concerns. We, however, are not satisfied that Mr Gregorek was. It was Mr Gregorek's instruction to Mr Couzens to bring the nests down. The claimant's decision to resign was prompted only by the bringing down of the nests. There is no link to her protected disclosure.

14. It seems to us that the response of the claimant is not a reasonable one in all of the circumstances. It is a genuine one for her but it is one which is simply too extreme for it to be one that would enable us to conclude that anything that the respondent had done entitled her to say that the trust and confidence had been irretrievably damaged by the bringing down of those nests. That situation might be very different if the claimant had challenged Mr Gregorek, had said to him that she believed that a criminal activity had been committed and remained in employment. If, thereafter, she had suffered any form of a detriment or, indeed, if she had been dismissed, it may well have been easily arguable by the claimant that that allowed her to bring a claim either for a public interest disclosure detriment and/or for an unfair dismissal in response to it. The claimant's resignation, however, in all of the circumstances in which we have heard evidence was not such that we are satisfied that it was connected with or caused by the protected disclosure she had made to Mr Couzens. We can discern no breach of the implied term of trust and confidence in her contract. Her resignation was prompted only by the discovery by her that the nests had been removed. Her claim for constructive unfair dismissal therefore fails."

10. Again in those findings it is likely that the Tribunal has decided that the central claim made against the Respondent, Mr Gregorek, has been rejected. The central claim was that, while holding himself out as a nature lover and running Anglers Paradise, he committed the criminal offence of knowingly taking down active birds' nests.
11. The other part of the claim was that the Respondent reneged on the assurance which she was given. However, in the passages which we have cited, which are two of the three occasions where this occurs, the Tribunal decided that her resignation was only due to the discovery that the nests were down, and there is no holding of the Claimant's contention that she left in response to the volte-face of Mr Couzens. Thus the claim was dismissed.

The Claimant's case

12. On behalf of the Claimant two points are taken. The first is that the Tribunal has not made specific findings for the purposes of the 1981 Act. The Tribunal should have found that he committed the offence in s1(1)(b). The crime consists of two parts: that nests were active; and there was intentional interference with them knowing that they were active. Failure by the Tribunal to make a specific finding on that made the Judgment unsafe.
13. Secondly, on the footing that an offence had occurred, there was a breach of a fundamental implied term of the contract that the Respondent would not behave in a way which evinced an intention seriously to damage. In the circumstances here - employment by a country lovers' paradise of an employee herself interested in the countryside and a member of the RSPB - this constituted a breach.

The Respondent's case

14. On behalf of the Respondent it is contended that the solution to this case is to be found in the holding by the Tribunal that Mr Gregorek did not know of the concerns of the Claimant as reported to Mr Couzens. Since the concerns were that there were active nests and an instruction to take them down, and since Mr Gregorek did not know of them, that is an end to the case.
15. As to the second submission if it is necessary to deal with it, it is contended that an objective standard is required for the determination of the rupture of the relationship. In this case, the Employment Tribunal, being the sole arbiters of factual issues, has considered the gravity of the offence and of the Claimant's reaction to it and has found as a fact that this did not constitute such a serious matter as to constitute a fundamental breach entitling the Claimant to resign.

The legal principles

16. The legal principles appear to us to be as follow. An Employment Tribunal is required to give a sufficient account of the facts and to make findings on the issues in dispute such as are necessary to resolve the case. For the purposes of constructive unfair dismissal the Tribunal should find what were the reasons for the Claimant's resignation, whether they were in prompt response to conduct of the employer and if so what conduct, and finally to determine whether that conduct constituted breach of a fundamental term of the contract. Such a term is as Lord Steyn put it in Mahmud v B.C.C.I [1997] ICR 606 at 621:

"… the employer shall not:

'without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee'."

17. Where a Claimant contends that a series of events has caused her to resign, triggered by a last straw, all events are relevant, even though none of them in itself constitutes a breach of contract, provided that in aggregate they amount to repudiation. If some matters claimed are dismissed by an Employment Tribunal it is still necessary to consider whether in respect of the one remaining event that was itself a fundamental breach.

Conclusions

18. We prefer the arguments of the Respondent and have decided the appeal should be dismissed.

(1) The adequacy of the reasons

19. We have no difficulty in rejecting the contention that the Tribunal should have found that Mr Gregorek was guilty of the crime. It would have been necessary to caution him in the hearing. It will be recalled that the police and the RSPB had concluded that there was insufficient evidence to put before a criminal court of breach of the statute by anyone. Mr Knight was unable to provide any example where parallel proceedings in a civil jurisdiction to that in a criminal jurisdiction can be tried where the Claimant in one is not also the victim in the other. In other words, claims in a civil jurisdiction can be made against an assailant and also a prosecution for assault. But here there is no human victim, for proceedings are brought by the Crown or possibly by the RSPB in respect of an attack on birds' nests and the Claimant in such a position, as she is in today, is an informant and at most the principal witness.
20. The Tribunal was not required to make a finding that Mr Gregorek committed the offence, and did not do so. It has made findings sufficient in this case to dispose of the challenge that he ordered the destruction of active nests: see our analysis of paragraphs 13 and 14 above. The Tribunal has acquitted Mr Gregorek, as it were, of the charge made by the Claimant against him in these civil proceedings of repudiation of the contract.
21. It was likely that the reassurance was given to the Claimant, as she said it was, for the Tribunal accepted most of her evidence about that discussion. Nevertheless, this allegation of breach of promise did not survive into the Tribunal's findings. There are clear findings that the sole reason for her resignation was her discovery of the nests coming down and not in addition that she was lied to or an assurance was broken. We agree it would have been easier for us if the Tribunal had decided that the birds' nests were not active; nevertheless, the essential ingredients of the crime are intentional conduct by a defendant to destroy a nest knowing it was active. The concerns of the Claimant were of both of those matters but they were never vouchsafed to Mr Gregorek, and so the finding by the Tribunal that he did not know of these concerns includes within it a finding that he did not know that the nests were active when an instruction was given to take them down. Assuming the nests were active, the Claimant could not reasonably criticise Mr Gregorek if he did not know it. It must be borne in mind that there was a strong relationship between the Claimant and the Respondent for this is not an employment by a limited company but by the Respondent himself and his wife. The case depends upon a direct allegation of breach of trust by the Claimant against Mr Gregorek. It was alleged he was the kind of person who would shoot ospreys and would not shrink from attacking active birds nests' on his property. Those allegations were rejected.

(2) Fundamental breach

22. It is not strictly necessary for us to consider the question of fundamental breach, but in order to do justice to the submission which Mr Knight has made we will. Assuming that the facts were that there was an offence, the Tribunal has nevertheless assessed the gravity of the matter. It was there to decide these questions of fact, and it has given its opinion on the gravity of the matter and the response of the Claimant, which it described as extreme. This case was, in our judgment, in no way similar to the BCCI case, where widespread fraud by the leadership of the companies was proved to the criminal standard causing massive loss directly to individual employees both there and in their future careers. The assessment of whether there is a fundamental breach is one which is objective, and it will pay attention to some extent to the nature of the relationship. The Claimant was a bird lover in a country lovers' pursuit we but do not consider that the Tribunal erred in its approach to the assessment of whether there was a breach of the fundamental term against that background. It was for it to assess, and we see no error in doing it.
23. Although this result will be disappointing to Ms Roberts she has the consolation of the extremely strong findings by the Employment Tribunal, not being challenged here, that her concerns were genuine – no allegation of bad faith is made pursuant to the statutory provisions relating to whistle blowing and there are findings in her favour about the account given by her as against Mr Couzens. Nevertheless the Tribunal was correct to uphold the submissions on behalf of the Respondent and we see no error in that. The appeal is dismissed.