United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR THOMAS KIBLING (Appearing under the Employment Law Appeal Advice Scheme)
For the Respondent	MS LAURA SMITH Pilgrims Group Ltd HR Department Pilgrims House Links Business Centre Old Woking Road Woking GU22 8BF


 


SUMMARY

UNFAIR DISMISSAL – Constructive dismissal

Whether non-payment of four days holiday pay amounted to a repudiatory breach of the contract of employment. Relevance of the last straw doctrine.

Employment Tribunal entitled to conclude that Claimant was not constructively dismissed. Claimant's appeal dismissed.

HIS HONOUR JUDGE PETER CLARK

1. The parties in this matter before the Leicester Employment Tribunal were Mr Bedford, Claimant, and Pilgrims Group Ltd, Respondent.
2. By a reserved judgment with reasons promulgated on 2 July 2009 an Employment Tribunal, chaired by Employment Judge Threlfell, held that the Claimant was not constructively dismissed by the Respondent and consequently his claim for unfair dismissal was dismissed. Against that judgment the Claimant appealed. His appeal was rejected on the paper sift by HHJ Ansell under the EAT rule 3(7).
3. Dissatisfied with that outcome the Claimant exercised his right to an oral hearing under rule 3(10). At that hearing, before HHJ Serota QC, the Claimant, who had previously represented himself with some assistance from his trade union representative Mr Eames, had the advantage of representation by Mr Thomas Kibling of counsel under the ELAAS pro bono Scheme. Mr Kibling was able to persuade Judge Serota at that Appellant-only hearing that the case should proceed to this full hearing on the basis of amended grounds of appeal prepared by Mr Kibling. That is the hearing now before us.

Background

4. The Claimant commenced employment as a security officer on 8 August 2006 with Shield Guarding Group (Shield) at a site in Leicester occupied by its client, SunGard. In January 2008 the Respondent won a tendering competition for the SunGard security contract in place of Shield. The Claimant's employment was transferred under the provisions of the TUPE Regulations 2006 to the Respondent on 7 January 2008.
5. Prior to the transfer date, on 3 January 2008, the Respondent sent its standard form contract of employment to Shield's employees on the SunGard contract. They asked that it be returned duly signed within seven days. The Claimant took exception to that course. He accepted, before the Tribunal, that he did not trust the Respondent from that point.
6. Between 7 January 2008 and his resignation on 11 September 2008 a number of issues arose between the Claimant and Respondent. The main issues are dealt with in the Tribunal's reasons and may be summarised as follows:

(1) Signing the new contract of employment, which the Claimant did expressly "under duress".

(2) A mismatch between Shield's holiday year (March to April) and the Respondent's (calendar year). That led to the Claimant complaining that he had been deprived of holiday entitlement which at one point he quantified at 0.6 days.

(3) The Claimant was praised for his handling of an attempted theft of fuel from the SunGard site. The Respondent asked him if he would be available for a presentation ceremony to thank him for his actions. His response was to send an email copied to SunGard, declining the invitation on the grounds that the ceremony would benefit the Respondent more than anyone else. SunGard were not best pleased since, unknown to the Claimant before he fired off his emails, they had suggested the presentation.

(4) The Respondent decided to hold a disciplinary hearing in respect of the Claimant's email, copied to their client, at their office in Woking, Surrey. That prompted the Claimant to raise grievances in relation to six matters, including the fit of his uniform, the holiday dispute and his having to travel all the way to Woking to attend his disciplinary.

(5) Written disciplinary procedures employed by Shield differed semantically from the standard procedure used by the Respondent.

(6) The holiday dispute rumbled on. Finally, the Tribunal found that due to the changeover from the Shield to the Respondent's holiday year the Claimant was deprived of four days holiday, which he had not taken during his employment with Shield, and the Tribunal awarded him four days holiday pay by way of an unauthorised deductions payment. The Claimant's grievance about holiday entitlement was not resolved by the Respondent prior to his resignation. However, following resignation they took the position, incorrectly the Employment Tribunal found, that responsibility for any outstanding holiday, and, therefore, holiday pay following termination of the employment, lay with Shield.

(7) The email disciplinary was finally heard on 25 June 2008. The upshot was a first written warning given to the Claimant against which decision he appealed.

(8) A second disciplinary issue them arose. SunGard complained that the Claimant had emailed his fellow security guards concerning the holiday entitlement dispute and had failed to answer a telephone which was ringing and left the room. The second disciplinary hearing was first arranged for 25 July 2008. That hearing was postponed because the Claimant was off sick and rearranged for 11 September 2008, the day in which his first disciplinary appeal was to be heard. The appeal was heard in the morning and the decision was reserved. The second disciplinary took place in the afternoon. Having heard the Claimant's account Mr Wisdom, who conducted both hearings, decided to adjourn that hearing. So, no resolution was then reached on either the first disciplinary appeal or the second disciplinary. Immediately following that second meeting the Claimant tendered his resignation in writing. He then issued his complaint of constructive unfair dismissal and unauthorised deductions from wages in the Employment Tribunal; the claims were resisted.

The Tribunal's Conclusions

(1) Unauthorised deductions

7. The Tribunal upheld the following claims brought by the Claimant:

(a) four days holiday pay, referred to earlier;

(b) pay due for two days, 25 June 2008 and 10 September 2008;

(c) a deduction by the Respondent of seven days pay because the Claimant did not work his notice; that deduction, of course, arose after termination. The total sum awarded was £1,299.48.

(2) Constructive dismissal

8. The Tribunal correctly directed themselves as to the law, having received no assistance from the parties who were not professionally represented on that aspect, drawing on the well-known Court of Appeal guidance in the cases of Western Excavating (E.C.C.) Ltd v Sharp [1978] ICR 221 and London Borough of Waltham Forest v Omilaju [2005] IRLR 35 on the last straw doctrine. They also directed themselves as to the Malik formulation of the implied term of mutual trust and confidence, recently affirmed by the Court of Appeal in Bournemouth University Higher Education Corporation v Buckland [2010] EWCA Civ 121, also now reported at [2010] IRLR 445.
9. They found that the failure to pay four days holiday pay was a breach of contract, but a minor breach and not one entitling the employee to treat the contract as repudiated by the employer. It appears that no separate complaint of breach was raised by the Claimant in relation to pay for 25 June 2008 and 10 September 2008, a point helpfully confirmed today by Mr Eames, who instructs Mr Kibling. They rejected his case that the Respondent was in breach by (a) delay in resolving his grievance and (b) changing the holiday year previously operated by Shield.
10. As to the trust and confidence term, the Tribunal accepted, paragraph 38, that subjectively the Claimant had lost trust in the Respondent from the outset of his employment, but that a fair-minded employee would not consider that his employer had broken the necessary bond of trust and confidence. The breakdown of the employment relationship was not, the Tribunal found, the attitude of the Respondent but that of the Claimant. Consequently he was not constructively dismissed and his unfair dismissal claim failed.

The Appeal

11. Following a useful discussion this morning, Mr Kibling confines his challenge to the Tribunal decision to two areas which he characterises as the pay issue and the last straw issue. The pay issue in turn is confined to the dispute over four days holiday owing to the Claimant at the TUPE transfer date. As to that, as Ms Smith points out, the claim was first raised by the Claimant by his letter dated 26 June 2008. The Respondent made no decision on the issue prior to the Claimant's resignation on 11 September 2008. The suggestion that it was the responsibility of Shield was not raised until January 2009, after termination, and the Claimant's right to pay in lieu of holiday was eventually conceded by the Respondent prior to the Tribunal hearing.
12. This is not, in our judgment, a situation akin to the employer unilaterally reducing contractual pay; see, for example, Cantor Fitzgerald International v Callaghan and Ors [1999] ICR 639, particularly per Judge LJ as he then was at page 649C. Mr Kibling accepts, as that case makes clear, that there is no absolute principle that non-payment of wages amounts to a fundamental breach of contract. On the particular facts of this case where there was no entitlement to pay in lieu of holiday prior to termination, the Tribunal, in our judgment, was entitled to find that any breach in relation to holiday pay was minor and was not repudiatory.
13. Secondly, in relation to the last straw, Mr Kibling has suggested that the last straw was on 11 September 2008 when, having raised the question of the four days holiday due, that matter was still not dealt with by Mr Wisdom.
14. In our view this case does not depend upon the last straw doctrine as discussed in the case of Omilaju and the earlier cases such as Lewis v Motorworld Garages [1986] ICR 157. What the Tribunal did, permissibly and correctly, we think, was to look at the overall series of events relied on by the Claimant between the period January 2008 until his resignation on 11 September 2008. They concluded that cumulatively the actions of the Respondent did not objectively undermine trust and confidence. We think their final comment, and they heard the evidence and we have not, that it was not the actions of the employer which undermine the relationship rather the actions of the Claimant employee, is highly material to their conclusion.
15. Having considered both of the ways in which this appeal is put by Mr Kibling, we are wholly unpersuaded that any error of law in the Tribunal's approach is made out. Consequently, this appeal fails and is dismissed.