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United Kingdom Employment Appeal Tribunal
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Kennaugh v Jones (t/a Cheshire Tree Surgeons) (Contract of Employment : Wrongful dismissal) [2012] UKEAT 0224_11_1104 (11 April 2012)
URL: http://www.bailii.org/uk/cases/UKEAT/2012/0224_11_1104.html
Cite as:
[2012] UKEAT 224_11_1104,
[2012] UKEAT 0224_11_1104
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Appeal No. UKEATPA/0224/11/ZT
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At the Tribunal
On
11 April 2012
Before
HIS
HONOUR JUDGE McMULLEN QC
(SITTING ALONE)
MR
K KENNAUGH APPELLANT
DAVID
LLOYD JONES T/A CHESHIRE TREE SURGEONS RESPONDENT
Transcript of Proceedings
JUDGMENT
RULE 3 (10) APPLICATION - APPELLANT ONLY
APPEARANCES
For the Appellant
|
MS
LAURA PRINCE
(of Counsel)
(Appearing under the
Employment Law Appeal Advice Scheme)
|
SUMMARY
CONTRACT OF EMPLOYMENT – Wrongful dismissal
The Claimant’s case of fundamental
breach of contract failed as there was no ground for saying the incidents on
which he relied in this lengthy set of proceedings in aggregate constituted
such a breach.
HIS HONOUR JUDGE McMULLEN QC
1.
I gave procedural and legal self directions at the outset of this
morning’s list which must be read into this Judgment. I now turn to this
particular case.
2.
On 1 October 2009 in UKEAT/0236/09, HHJ Peter Clark sitting with members
introduced the Claimant’s first appeal in the following way:
“1. This hard-fought litigation between Mr Kennaugh, Claimant,
and Mr Lloyd-Jones, Respondent; has taken up a disproportionate amount of time
and resources in both the Liverpool Employment Tribunal and this Appeal Tribunal.
That said, both parties are entitled to have their case determined properly
according to law.
2. I set out the then procedural history in a Judgment which I
gave in an earlier appeal on 14 May 2008. I need not repeat it here. In a
subsequent Judgment which I gave on 18 July 2008, I allowed the Claimant’s
appeal against the ruling made by Employment Judge Robinson at the pre hearing
review held on 23 March 2007, that for the purposes of his claim of ordinary
unfair dismissal, he had not completed one year’s qualifying employment with
the Respondent, his former employer; there had been a breach in the continuity
of that employment.”
3.
That matter was ultimately resolved in the
Claimant’s favour. The references which HHJ Peter Clark gave should form
part of this Judgment UKEATPA/1135/07, UKEATPA/0208/08, UKEATPA/0710/07 and
UKEAT/1135/07, this time on 14 of May 2008. Further reference should be made
to the judgment of HHJ Serota QC sitting on 14 July 2006, UKEAT/0032/06.
4.
The most recent pronouncement of Judge Clark which I have read ended up
in a remission to a differently constituted Employment Tribunal to determine a
focused question. I have given permission to Mr Kennaugh to raise the issues
before a full hearing and that is the 2009 Judgment. In the full glare,
therefore, of at least five EAT Judgments, Employment Judge Ryan’s Tribunal
descended upon this case in December and January 2010/2011, some five/six years
down the road. The outcome was that the only claim remaining outstanding was
constructive unfair dismissal which the Tribunal dismissed and that was the
scope of the decision.
The facts
5.
I do not propose to add to the industry of Judges in this court in
describing the circumstances between the protagonists in this case. In short
the Claimant was underpaid, there were breaches of contract. The Tribunal
considered whether those breaches were fundamental. It decided they were not
and gave reasons as to why in the exceptional circumstances what would
otherwise be a breach, and indeed often a fundamental breach, of contract - not
paying wages due - was not such in this case.
6.
As to the treatment of the Claimant’s grievances, the Tribunal concluded
that although a failure to comply with a grievance procedure would often be a
breach, the Claimant was to some extent at a fault; he would not engage in the
procedure.
7.
There is now presented a Notice of Appeal against those findings. The
matter came before me, it seemed to me this Judgment was irregular because the
title did not include the names of the three persons set to try it and I
invited Judge Ryan to correct it because the language is of the third person
plural. I have not seen a correction but I assume without Latin that all things
have been done correctly and that this was a three person Tribunal. It then
came back before HHJ David Richardson who indicated that there was no arguable
case that the Judgment was perverse.
8.
Dissatisfied with that opinion of HHJ Richardson, the Claimant exercised
his right as I described earlier today under rule 3(8) and applied again. Here
is what Langstaff P said:
“It may be rare that non-payment of wages does not amount to a
repudiatory breach of contract. But it is not impossible. To found a claim
for constructive dismissal, a breach of contract by an employer must be
repudiatory – i.e. must evince an intention no longer to be bound by the
contract such that that “innocent” party no longer has to keep his own side of
the bargain. The Employment Tribunal was clear here in para. 4.2 and 4.5 why the
breaches were NOT repudiatory. That is a finding of fact. No error of law is
disclosed. The revised Notice of Appeal principally seeks to reargue the case,
but does not identify any actual such error.”
9.
Undiminished by all of those pronouncements, the Claimant pressed onto a
rule 3 hearing where he had the good fortune to be represented by Ms Laura
Prince, providing her services for nothing under the ELAA Scheme.
The Claimant’s case
10.
She has produced a substantial skeleton argument and added to it with
further instructions she received from the Claimant this morning. She raises three
points.
11.
The first is that the Tribunal failed to consider the last straw. The
last straw is a reference to Omilaju v London Borough of Waltham Forest [2005] 35CA in that the Tribunal does not look beyond one incident.
She contends that the Claimant had alleged more than one incident and that the
Tribunal overlooked this and did not pay attention to the whole matter. This
is unsustainable in the light of the passage cited by Ms Prince where the
Tribunal describes these breaches. These breaches are a failure to pay the
correct wages; in other words, in a claim of constructive dismissal extending
over a period of time leading to the last straw, the individual incidents may or
may not each be a breach of contract, including the final one, provided in
total they amount to a fundamental breach of contract.
12.
The Tribunal made reference to the words, “these” and “these breaches”
and “they” and considered the string of incidents of underpayment of wages. It
has attributed that to a breach of contract and has formed the judgement that
they are not fundamental. As Ms Prince very fairly accepted before me, decisions
as to what is fundamental and what is minor are matters of fact and are for an
Employment Tribunal not the EAT. This ground cannot succeed.
13.
The second issue is to do with a grievance. It is contended that the
Tribunal’s finding on this was perverse: the Claimant had raised a grievance on
28 January 2005 and there was no attempt to address it until 14 March. The
problem with this submission is that there needs to be reference to the
schedule of issues which were raised at a previous CMD and which are cited in paragraph
1.2 of the Tribunal Judgment. I do not have the actual CMD but I, of course,
will take what Judge Ryan’s Tribunal says about it.
14.
Judge Ryan was most scrupulous to outline the issue at the outset of
this hearing, no doubt mindful of the close attention this case had received at
the Employment Appeal Tribunal. The parties heard him and yet the Tribunal
records Mr Kennaugh’s dissatisfaction later during the course of the hearing with
that depiction of the issue. I do not propose to be distracted by that, nor was
Judge Ryan’s Tribunal. The issue is simple; there was consideration of the
Claimant’s case that his grievances have not been dealt with. The use of the
plural is important, they derive from the passages cited in paragraphs 4.1 to
4.3 of the CMD. Here the Tribunal is critical of the Claimant, who failed to
engage with the attempts by the Respondent to convene a meeting on numerous
occasions to deal with it and to discuss it. How can it be that the Respondent
is culpable in those circumstances? In my judgment there is not a shred of
hope of establishing that the Tribunal’s decision is perverse in those findings
about the grievance. Thus, the issues of the grievances cannot contribute to
the aggregation of incidents, or even breaches, leading to a finding of
fundamental breach of contract; this ground is hopeless.
15.
I then turned to what is said to be a completely erroneous decision in
relation to inconsistency with previous findings. The test for perversity in
this court requires a high threshold to be surmounted by a successful appellant:
see Yeboah v Crofton [2002] IRLR 634 CA. In my judgment the
findings by the Tribunal as to the length of the relationship, what was going
wrong with it and the apportionment of responsibility as between the Claimant
and the Respondent make it plain that the decision by the Tribunal was firmly
grounded in fact. Again, some difficulty faces this court because there is
reference to findings by the Tribunal at the PHR which are not before me, but
even assuming what the skeleton argument says is correct, this comes nowhere
near the threshold for a perversity challenge.
Conclusion
16.
I see no reasonable prospect in any of the three grounds now enunciated
before me and this application is dismissed and with it the underlying appeal.