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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hoddy v Pickworth & Ors [1999] UKEAT 235_98_1612 (16 December 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/235_98_1612.html Cite as: [1999] UKEAT 235_98_1612

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APPEARANCES

 

For the Appellant	The Appellant in person
For the first Respondent For the second Respondent	The Respondent in person The Respondent in person


 


HIS HONOUR JUDGE WILKIE

1. This is an appeal by Mr Hoddy, trading as Bispham and Cleveleys Kitchens, against a decision of the Employment Tribunal sitting in Manchester that he and his firm unfairly dismissed Mr Pickworth and Miss Cooper. We are also considering a cross-appeal by Miss Cooper and Mr Pickworth against the conclusion of the Tribunal that they contributed to their dismissal by respectively 25 & 33(%. Mr Hoddy's appeal initially was on wider grounds than that which has been argued before us today. His other grounds were dismissed at the preliminary hearing held on 23^rd March 1998 and thereafter this full hearing is only on the matter of causation. The cross-appeals of Mr Pickworth and is Cooper were the subject of a meeting for direction convened by the President of this Tribunal held on 13^th November 1998 at which he ordered that there be no leave to adduce fresh evidence. On that occasion there was no order made for striking out the cross-appeal. Unsurprisingly, however, and in our judgment sensibly, Mr Pickworth and Miss Cooper have indicated today that they are not proceeding with their cross-appeals and therefore we dismiss their cross-appeals. Therefore this leaves for our decision Mr Hoddy's substantive appeal on the issue of causation.
2. The applications were heard on the 10^th & 11^th November 1997 at the Tribunal and the reserved decision was sent to the parties on 16^th December 1997. Each claim was for unfair constructive dismissal. Mr Hoddy denied that there had been any constructive dismissal. In the alternative his IT3 concluded that if there had been a constructive dismissal being "for some other substantial reason". The Employment Tribunal concluded in each of the two cases that the applicants were dismissed constructively. The Tribunal went on to conclude that those dismissals were unfair. The Respondent did not at the hearing put forward any reason, or potentially fair reason, for treating the Applicants in the way which the Tribunal found they had been treated. Accordingly they found the applications proved. The point which Mr Hoddy argues before us in the case of each of these claims is that the Tribunal decision is deficient because there is no finding by the Tribunal that the breaches of contract which the Tribunal found proved were, in fact, the cause of the subsequent resignations which were said to amount to constructive dismissals.
3. It is, therefore, necessary to examine what it was that the Tribunal found as a fact to constitute a breach of contract. The Applicants were both employed in the Appellant's business which was conducted from two sites, one at Bispham and the other at Cleveleys. The breach of contract which the Tribunal found in respect of Mr Pickworth was that on the 23^rd of February 1997 Mr Pickworth was moved from the Bispham premises to the Cleveleys premises with a consequential drop in hours and wages. The contract of employment of Mr Pickworth expressly gave the employer the right to move him between sites from time to time. Therefore the Tribunal could not find that the move from one site to another was a breach of an express term of the contract of employment. But rather found that it was an instance of a breach of an implied term. The Tribunal made findings of fact, which Mr Hoddy cannot and does not seek to go behind, that the decision to move Mr Pickworth from the Bispham shop to the Cleveleys shop was a deliberate act of bad faith on his part which dramatically altered Mr Pickworth's working hours, which had an effect upon his health, (he suffers from diabetes), and more importantly, resulted in the reduction in net weekly wages of between £50-75 a week.
4. As far as Miss Cooper was concerned, the Tribunal focused on a meeting which took place on 26^th March 1997. It found, as a fact, that during that meeting between herself, Mr Hoddy and his Personnel Manager Mrs Whelan, Miss Cooper had been told that she should look for alternative employment in the job sections of the local newspaper, she was threatened with being demoted and/or dismissed. She was told that she was not worth the wages that she was receiving because she was not doing her job properly, and she was called a liar. There had been a dispute as between Miss Cooper and the Respondent and its witnesses as to the content of that meeting and the Tribunal unanimously accepted Miss Cooper's version of events. The Tribunal went on to conclude in her case that the remarks made to her during the course of the interview of 26^th March 1997 were such as to destroy completely any mutual trust and confidence between employer and employee and that any reasonable employee who was spoken to in that way by their employer would be entitled to conclude that the employer did not have any intention to be bound in the future by the terms of the contract of employment. As far as Mr Pickworth was concerned, in addition to the element of bad faith, the Tribunal found as a fact, having unanimously accepted the evidence of Mr Pickworth on this particular point, that he had been told that the transfer from one site to another was "just for a change" and that whilst he did not raise any complaint about the change in hours, equally he was not told how long the change would be for.
5. Both Mr Pickworh and Miss Cooper resigned from their employment by separate letters dated 14^th April. In those letters neither of them gave the reason for their resignation. In the period immediately prior to those resignations, Mr Pickworth had been working up to and including Thursday 27^th March which was immediately before Easter. Mr Pickworth was asked to work over the Easter period and consulted a GP on the 2^nd April after the Easter period. On Thursday 10^th April Mr Pickworth went into the Respondents premises for his wages and those of Miss Cooper. They both believed these wages would reflect Sick Pay for their absence from work over the Easter period, for sickness. They had provided sick notes from their GP and which Mr Pickworth had handed to Mr Hoddy. No Sick Pay however, was paid. Mr Hoddy indicated why no Sick Pay was being paid by a letter dated on or about 10^th April in which he stated he was refusing to pay Sick Pay because he did not believe that they were genuinely absent from work and that they had deliberately hatched a plan between them to be absent from work over the Easter period which was a particularly busy time for the business of the Respondent.
6. The Tribunal found as a fact that, following receipt of those letters, both Applicants went to seek legal advice and, having considered their situation, they resigned from their employment by letters dated 14^th April. The Employment Tribunal, in the case of Miss Cooper in paragraph 4 of its decision, concluded that she had been unfairly dismissed. In its findings of fact, the Tribunal, as far as she was concerned, says that her reasons for resigning her employment related to the content of the meeting of the 26^th March, she had been unfairly dismissed and was entitled to resign her employment as a result of the remarks made to her during the course of that interview on 26^th March 1997, which constituted a breach of the implied term of mutual trust and confidence. Mr Hoddy has sought to argue that if one reads very closely and with precise textual analysis, the decision of the Tribunal in respect of Miss Cooper, there is a scintilla of clear light between, on the one hand its finding of fact that she gave her reasons as being the meeting of 26^th March, and the Tribunal's conclusion that she was entitled to resign her employment as a result of those remarks being made, he says that there is no precise statement that the Tribunal has concluded that her reason for resigning was the outcome of the content of the meeting of 27^th March.
7. We have to remind ourselves, as indeed we have been reminded on many occasions by the Court of Appeal, that Employment Tribunal decisions are not required to be construed as if they were statute or ancient texts. It is wholly improper for this Tribunal to embark on an exercise of close textual analysis in order to read precisely between the lines of a decision. The purpose of an Employment Tribunal decision, and the requirements of law, are that there be a statement summarising in broad terms the relevant findings of fact and a sufficient statement of the reasoning supporting the Tribunal's conclusions in order the enable the parties to see respectively why they have won and why they have lost and to enable the Appellate bodies to identify whether or not there has been an error in law by the Tribunal. It seems to us that, whatever the precise merit of any textual criticism which Mr Hoddy might wish to make, if one looks at this decision in a common sense way, applying the strictures of the Court of Appeal to which we have already referred, it is manifestly clear to anyone reading this decision in a sensible way, what the finding of facts were and what was the process of reasoning in respect of the Tribunal's conclusion of Miss Cooper's case.
8. It is perfectly clear to us that this Tribunal, as a matter of fact, find the reason for her resignation was the content of the meeting on 26^th March. It concluded, as a matter of fact and law, that the conduct of that meeting constituted a fundamental breach of contract. It further concluded that as of the 14^th April, she was entitled to act upon that repudiatory breach of contract by resigning and which operated as a constructive dismissal, accordingly we dismiss the appeal against the decision as far as Miss Cooper is concerned.
9. As far as Mr Pickworth is concerned in paragraph 5, the employment Tribunal say, insofar as it is relevant, that it was satisfied that the decision to move him from Bispham shop to the Cleveleys shop was a deliberate act of bad faith on behalf of the Respondent, that this dramatically altered his working hours which had an effect upon his health as he suffers from diabetes, but more importantly resulted in a reduction in the net weekly wages he received £50-75 per week. The Tribunal did not accept the explanation of the Respondents which was that the change was made in order to give experience at the Bispham shop to another cook. Having found that the Applicants were dismissed, the Tribunal concluded that they were unfairly dismissed as the Respondent did not put forward any reasonable potentially fair reason for treating the Applicants in the way which the Tribunal found as a fact they had been treated. The Respondent failed therefore to satisfy the burden of proof imposed by Section 98(1) of the Employment Rights Act 1996.
10. Mr Hoddy points out, accurately, that this paragraph does not contain any express finding that the reason for Mr Pickworth's resignation was the breach of the implied term to which it referred. He therefore invites us to send this matter back to the Tribunal for it to address the question of causation. In that respect he indicates that there are two arguments that he would wish to deploy in order to make good his contention that there was indeed a failure on the part of this Employment Tribunal to deal with the question of causation. The first is, he says, that as a matter of law the entitlement to treat the breach of contract as bringing the employment to an end was lost by Mr Pickworth when he first received a wage packet without having first either lodged a protest or resigned. Then by the time of his resignation on 14^th April, as a matter of law, whatever breach they may have been as of the 23^rd February, it had been accepted and was no longer an active basis for a constructive dismissal.
11. In our judgment Mr Hoddy overstates the position. He has, in his extremely able argument to us, both in writing and orally, referred to a number of cases, but in particular to the Employment Appeal Tribunal's decision in Cox Toner International Ltd and Crook. In the course of argument we referred Mr Hoddy to the passage in Harvey part D, paragraph 529 and in particular passages 526-529 where a number of other decisions of the Employment Appeal Tribunal are referred to. It is well established that there is no firm and inflexible rule of law that an employee by not complaining, but accepting wages and remaining at work for a period of time, is thereby automatically to be regarded as having lost the power to resign and claim unfair dismissal. In each case it is a question for the Employment Tribunal to consider, having regards to the principle, whether there has been an acceptance of the change of contract. It seems to us that this particular Employment Tribunal had well in mind the question of Mr Pickworth's continuation in employment after the change that had been imposed on him on 23^rd February. In particular, in their findings of fact the Tribunal refers to the fact that Mr Pickworth had been told that the change was "just for a change", that he did not know how long it would be for and that he had not raised any complaint about the change in hours. In the light of those findings of fact we are confident that this Tribunal did apply its mind to the issue whether he had accepted the repudiatory breach by remaining at work until he resigned on 14^th April.
12. The second argument put forward by Mr Hoddy, is that there was, close to the resignation letter, an incident which did not constitute on his part a breach of contract, but which certainly upset both Mr Pickworth and Miss Cooper. He says that, if the matter were sent back, he would want to be able to address an argument to the Employment Tribunal that this intervening act was in fact the reason for their resignations, bearing in mind the fact that they did not, in their letters of resignation, advert to the reason why they were tendering their resignation at that particular time. In this respect, before us, he sought to place at the forefront of his argument a letter written on 15^th April by solicitors acting for both Mr Pickworth and Miss Cooper. In fairness to those solicitors it has to be said it does appear to be a letter comprising a scattergun approach and it is difficult to construe it in any particular way with any precision. That letter was part of the material which was before this Employment Tribunal. It seems to us, having read the decision as a whole, having regard to the findings of fact of which were made, having regard to the way the Tribunal expressed itself in paragraph 4 as far as Miss Cooper is concerned and having regard to the way in paragraph 5 it addressed itself to the question of Mr Pickworth, that in concluding that both Applicants were dismissed this Tribunal plainly decided that the reason for Mr Pickworth's resignation was the fundamental breach of contract to which reference was made in paragraph 5 itself.
13. Once again it seems to us that we are being invited by Mr Hoddy to construe and Employment Tribunal decision strictly as if it were a statute, to pore through it giving effect to his precise textual analysis and on that basis to conclude that this Employment Tribunal has failed to address the question of causation. We conclude that this is an utterly unrealistic approach in respect of this particular decision where, as we have indicated, each of the matters which Mr Hoddy would seek to argue in support of his contention were matters upon which this Tribunal took great care to set out its findings of fact. Plainly these matters were before the Tribunal, it did make findings of fact and it is unrealistic to suggest that it simply put them out of its mind when it reached it's conclusion and gave its reasons. In particular it seems to us that where, as here, the Employment Tribunal made findings as to contribution, and findings as to the absence of any breach of contract by Mr Hoddy in respect of the Sick Pay claim, it is simply idle to suggest that it did not consider and reject the contention that the reason for the resignations was the failure to pay Sick Pay, or any reason connected with it. Such a conclusion would be wholly inconsistent with the structure of this decision and the conclusions, not now sought to be appealed, that by making the sick claims they contributed to a significant extent to the dismissals. Therefore we dismiss Mr Hoddy's appeals. Accordingly both appeals and cross appeals are dismissed.