Appeal No.	 EAT/788/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 December 1996

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR P DAWSON OBE
MR J R RIVERS

HENLEYS LTD	APPELLANTS

MR P BATERIP	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellants	MR C BAYLIS
(of Counsel)
Messrs Sharples & Co
Solicitors
108 Beaufort Street
Chelsea
London
SW3 6BU

MR JUSTICE MORISON (PRESIDENT):   The purpose of this hearing is to determine whether there is an arguable point of law in an appeal against an unanimous decision of an Industrial Tribunal held at Brighton on 16th May 1996. The tribunal held that the applicant, Mr Baterip had been unfairly constructively dismissed.

	The employee left his employment following his return to work after he had alleged that he had been off work due to an injury. The tribunal were required to examine whether there had been in the circumstances “a fundamental breach of contract on the part of the employer” causing the employee to resign.

	The account that was given by the employee as to what happened when he returned to work is set out in paragraph 9 of the their decision:

“9.	In particular, the Applicant’s evidence was that when he explained to Mr Williamson the reason he had not been at work and showed Mr Williamson his injured arm, which he stated was still swollen and in a bruised state, Mr Williamson stated “You’ve done that before”. The Applicant’s evidence was that Mr Williamson went on to say “I’m going to suspend you pending an independent doctor’s report”. The Applicant said that he wanted that in writing and that Mr Williamson refused to put it in writing. The Tribunal accept the Applicant’s evidence of what was said. The Applicant felt that Mr Williamson did not believe him.”

At paragraph 15 of their decision, they give reasons for their conclusion that wherever there was a conflict between the applicant’s and Mr Williamson’s evidence, they preferred the applicants.

	At paragraph 14 of the decision they say:

“14. The Tribunal find as a fact that the challenging of the doctor’s certificate by Mr Williamson went to the core of the employer/employee relationship in that it went to the very root of the term of “trust and confidence” that must subsist in any employment contract. That was the reason why the Applicant resigned.”

	In support of the appeal, Mr Baylis has succinctly submitted to us that a one-off, over robust request for an independent medical examination which the Company was entitled to require of their employees under the sickness scheme which the employee had signed as indicating he had received, could not amount to a repudiatory breach of contract entitling the employee to walk off. 

	While we see the force of that submission, it seems to us that the question before the Industrial Tribunal was very much a question of fact and degree. If the facts were as set out in paragraph 9, we think that it was open to an Industrial Tribunal to conclude that that conduct was sufficient to constitute a repudiation of the contract of employment. Whilst it is true that the Company had the right in the event of protracted illness to seek guidance from the Company’s doctor and to ask for another medical certificate, it does seem to us that to suspend a person who has attended for work, having been supported by medical certificates, and with an arm which was still swollen and bruised, was conduct which was capable of amounting to a repudiatory breach. There are ways and ways of dealing with suspicions about a medical certificate. The way this was done on this occasion, as its seems to us, did entitle the Industrial Tribunal to conclude that there has been a repudiatory breach. We would like to say that we think that the Industrial Tribunal have in a succinct decision accurately set out the law and so far as we can see they have correctly applied the law to the facts as they have found them to be. Accordingly we shall dismiss this appeal.