Appeal No. EAT/207/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 19 July 1994

	Before

	THE HONOURABLE MR JUSTICE MORISON 

	MISS J W COLLERSON

	MRS T MARSLAND

MR B NIXON	APPELLANT

THE PAROCHIAL CHURCH COUNCIL OF CHRIST	RESPONDENTS
THE KING, WORTHING

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	IN PERSON

	

	MR JUSTICE MORISON:  This is an appeal against the unanimous decision of an Industrial Tribunal which dismissed Mr Nixon's complaint of unfair dismissal brought against the Parochial Church Council of Christ the King, Worthing.

	This is an extremely sad case in our view and nobody on behalf of the employers, in our view, comes out of it with any real credit.  Mr Nixon was employed as a verger at St Paul's Church, Worthing.  He was Verger/Caretaker there since 1 July 1987 and we accept without hesitation, that he took up that position with a sense of Christian calling and he performed those duties, so far as one can tell, entirely satisfactorily until there came a time when there was a conflict in relationships between himself and the church wardens arising out of his desire to seek election to the synod as a lay representative.  For reasons which wholly escape us the church wardens of the parish church where he was the verger, took the view that it was inappropriate that he should have sought election without having consulted with them first.

	As a result of that confrontation, Mr Nixon was concerned, as he described it, at the  relationship breakdown with these two particular persons and following the amalgamation of the parish church with other parish churches so as to form a team, and on the appointment of the team rector for what is now the larger parish of Christ the King, Worthing, he communicated with the newly appointed team rector asking for his help in dealing with the problem that I have just referred to .

	He tells us, and we accept, that he did not receive the help which he was looking for but instead was left with the clear impression that so far as the rector was concerned, he ought to be looking for a new job because he did not welcome the position of verger.  In addition to those two matters there was, as the Industrial Tribunal have noted, a problem over an alleged conflict between the team rector and the parish priest on religious terms.  There was a further problem in that, Mr Nixon appears to be very much over-qualified for the position which he held, which obviously was calculated to lead to possible difficulties between himself and other lay helpers such as youth workers within the parish, he having had considerable previous experience in that field.

	That is the background to events that occurred as a result of the church reviewing its position and Mr Nixon's employment.  Those events commenced on about 2 December 1992, omitting as I do for the present purposes everything that happened before that date.  The District Council on that date met and considered a proposal that Mr Nixon should be given notice of termination but offered an opportunity of agreeing new terms of employment: at that time the proposal was for a weekly wage of £80 per week as opposed to the weekly wage of £136 per week which he was currently receiving.

	On that occasion the Tribunal noted that a vote was taken on a proposal that Mr Nixon be retained on his current terms and the District Council was completely split seven and seven.  The Chairman who was the rector declared that the motion was not carried; thus the proposition that he should continue on his old contract had been rejected on the basis of this casting vote.

	The next proposition put to the District Council was that the proposal of the standing committee of the District Council which had upped the salary on a part-time basis from £80 per week to £100 per week for a 25 hour working week should be put to Mr Nixon and that proposal was discussed and the resolution in favour of it was overwhelmingly passed.  Accordingly, on the following day, that is 3 December, the Team Rector went with another member of the District Council to see Mr Nixon taking with them a letter dated 3 December setting out the broad terms of the proposal.

	The Industrial Tribunal have described this letter as being a "not particularly impressive document" and they comment:

		"One might have thought that before writing such a letter he [the Team Rector] would have ascertained whether he need give notice under the existing contract or not, rather than stating that advice would have to be taken on that subject.  The effect of his doing so was that this was not notice to terminate at all and it was only because the matter was referred to the Parochial Church Council that that fact became irrelevant, with the issue of an actual letter of dismissal."

	As a result of the delphic nature of this letter Mr Nixon was understandably confused as to where he stood in terms of his employment.  The letter did not purport to give him express notice of termination of his contract; it indicated that in due time his salary and his hours of work would be reduced; he took the view that this was a statement of an intent that the employers were going to break his contract which he believed them not to be entitled to do.  For that reason he considered that this effectively was a constructive dismissal; that he had so to speak been informed of a repudiatory breach of contract and he was not prepared to put up with it.  Accordingly he made his views clear in a letter of 10 December and between the date of 3 December and 27 January the position was completely confused because so far as the church was concerned, Mr Nixon was still employed; he was taking the view that he was not still employed and was not working yet the church was continuing to pay him.

	In order no doubt to try and regularise the position and put an end to the confusion the PCC met on 27 January and endorsed the decision of the District Council to which I have referred, that is the District Council Meeting on 2 December 1992, and on the following day the solicitors acting for the PCC wrote two letters to Mr Nixon, the first giving him 3 months notice of termination and the second offering him a new contract and giving him brief details of its terms.

	The Tribunal noted that the correspondence continued between respective solicitors but the net result was that Mr Nixon did not accept the offer of the new post and his dismissal took effect.

	As they noted in paragraph 36 of their decision:

		"We have already been critical of Mr Nixon and his attitudes but nor do we believe the Respondents emerge with a great deal of credit from this saga.  It is quite amazing that no-one appeared to be able, with any certainty, to say who actually employed Mr. Nixon at the time."

We would add that it is wholly unsatisfactory that an employee should be left in doubt as to whether his employment was still running or was not.

	As a result of these matters the Industrial Tribunal came to the conclusion that they should examine the dismissal that was effected by the notice given on 27 January and proceeded to ask themselves what the reason was for the dismissal and whether that was a reason which justified the dismissal and on those two matters they concluded that the reason for the dismissal was effectively redundancy and secondly that the employers had behaved fairly in treating that as a sufficient reason for the dismissal.

	Mr Nixon's complaint to us in substance, although it is not the only complaint, is that the Industrial Tribunal never themselves considered his alternative case of constructive dismissal.  He says that what happened was that on the first day he thought that he would be opening the batting because he would be proving that he had been dismissed by reason of the events which had taken place on 3 December 1992 when effectively he had been told that his contract was to be reduced in value and hours but without having been given any notice and accordingly he took the view that that was constructive dismissal.  He says that what happened was, the Tribunal having heard that that was the case, then also heard from the PCC's solicitors who said that - No, it was not a case of constructive dismissal, it was a case of actual dismissal being effected on 27 January 1993 - and the Tribunal apparently said that it did not make any difference because there was a dismissal which gave them the right to examine the circumstances in which it took place and they could therefore rule on the matter, and permitted the employers to begin their submissions.

	It is true that nowhere in their original decision do the Industrial Tribunal consider the question as to whether it would have made any difference to the outcome had they contemplated a case on constructive dismissal and we were troubled by this but the explanation for it, we think, lies in what is said in the review decision because there the Tribunal explain in paragraph 7 this:

		"Mr. Nixon also alleges that in effect he was prevented from advancing a case on constructive dismissal.  This is correct.  Mr. Nixon's representative appreciated there could not be a constructive dismissal unless Mr. Nixon had resigned.  He did not resign but was expressly dismissed.  Despite having this explained to him, Mr. Nixon did not seem to grasp this principle.  However, Mr. Nixon was certainly permitted to give all of his factual evidence he wished (and indeed expressed the view that this was the first time he had had the opportunity to put his case fully).

	It seems to us in these circumstances (and bearing in mind our view that it is very unlikely that it would have made any difference to the eventual outcome had the Tribunal approached the matter on the basis that it was a constructive dismissal rather than an actual dismissal), we have come to the conclusion that there is no point of law on that ground in relation to this potential appeal.  There are a number of other points which are made by Mr Nixon which are to the effect that the Tribunal largely misunderstood the nature of the case being advanced and secondly that they did not perform their role properly as an industrial jury.

	It is a sad fact that Mr Nixon has come away from a Tribunal hearing believing, in effect, that justice has not been done.  It is our desire in this Appeal Tribunal that everybody who has a case here should at least fully understand why the Appeal Tribunal has taken a particular view.  But we have a duty to fulfil and we can only interfere with decisions where we are satisfied that there is an arguable point of law and having anxiously considered the matter we have to say, not without some reluctance, that this is not a case where there is any apparent point of law which we could say is fit to be argued before a full hearing and accordingly we are compelled to dismiss this appeal.

	That said, it is regrettable that Mr Nixon has been treated in the way that he has been and I hope that the Respondents to this prospective appeal will think long and hard about the lessons which they may learn from this so as to spare anxiety and distress to other persons who are in a similar position to Mr Nixon and we are sure that Mr Nixon will readily share that view so that others, like himself, should not be treated in the way that he was.