Appeal No.	EAT/1258/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 January 2000

Before
MR COMMISSIONER HOWELL QC
MR D CHADWICK
MS B SWITZER

MUIR GROUP HOUSING ASSOCIATION LIMITED	APPELLANTS

MR S C NICHOLS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellants	MR K SMITH
(Representative)
IRPC Group Ltd
Noon Sun
Horsforth Lane
Greenfield
Oldham
OL3 7HL	

	MR COMMISSIONER HOWELL QC:	In this appeal the Muir Group Housing Association, who appear before us by Mr Kevin Smith today, seek at this preliminary hearing to pursue an appeal against the decision of the Liverpool Employment Tribunal comprised in extended reasons sent to the parties on 24th August 1999 and set out in the appeal file at pages 5 to 10, following a hearing which took place on 29th June 1999.

1.	The complaint brought before the tribunal by a Mr Nichols was that he had been unfairly dismissed. As made clear in his Originating Application submitted on 2nd February 1999 at pages 11 to 13 of the appeal file, the grounds on which he was alleged to have been unfairly dismissed were that his position as a Project Management Assistant with the Housing Association had been made intolerable to such an extent that by a letter of 14th December 1998 he had told the employers that he had lost all trust and confidence in them and was forced to leave their employment. 

2.	The applicant’s job involved “sleepover” and other supervision duties in premises maintained by the Housing Association where they provide extremely valuable services for vulnerable members of society who require accommodation and supervision because of various difficulties and disabilities.

3.	The particular event which gave rise to what was initially a dismissal of the applicant by the Housing Association but was subsequently in the course of a disciplinary appeal reduced to a final written warning, was that the applicant who normally worked at a sheltered housing unit, “Rowlands Lodge”, had been sent temporarily to another of their properties, “Victoria House”. While he was there on an overnight shift supervising the residents at that property, one of the tenants there had become ill and there had been a fear, though this was disputed by the applicant himself in evidence, that she might be attempting to commit suicide. The view had been taken by the employers that he had dealt inadequately with that situation and he was accused of gross misconduct and initially dismissed. In the course of the subsequent disciplinary appeal procedure it appears, as Mr Smith made clear in his skeleton argument before us today at paragraph 1.4, that the consideration given by the employer to Mr Nichols’ case had widened considerably, to include further issues arising from his employment at the Rowlands Lodge where he normally worked. These had been under consideration by his line manager, a Mrs Young, for some time, she being dissatisfied with the general way he carried out instructions, attended on shifts and what she viewed as poor teamwork and poor communication with other staff. The upshot of the disciplinary proceedings was that the applicant had his dismissal for the incident at Victoria House withdrawn but instead a final written warning was substituted which had the effect of placing his employment within what he regarded as an intolerable degree of immediate control by the line manager, Mrs Young, with whom it appears indisputable he had a difficult relationship. 

4.	Consequently, in his Originating Application to the tribunal he complained as the primary reason for his having had to leave the employment of the Housing Association that:

“9.	By issuing me with a Final Written Warning, which was not justified in respect of Victoria House let alone Rowlands Lodge, Muir Group have fundamentally breached my contract of employment. The Final Written Warning in relation to Rowlands Lodge placed me in an impossible position under a Line Manager who, by her attitude and expressed desire, has shown herself to be determined to dismiss me. This amounted to a constructive dismissal.”

5.	When the matter came before the Employment Tribunal on 29th June 1999 evidence was given by the applicant which was largely accepted by the tribunal and this included evidence of the difficulties between himself and Mrs Young, as a result of which he had found his position to be intolerable and had felt he had to resign.

6.	No evidence to rebut the evidence given by the applicant about these difficulties was called by or on behalf of the Housing Association. 

7.	The tribunal having considered the evidence before them, which they recorded carefully in paragraph 9 of their extended reasons, expressed their conclusions as follows:

“11.	Applying the relevant law to the above facts our findings are as follows. We remind ourselves of what has been said with regard to the relevant law. We are satisfied that the result of the partially successful appeal where the applicant was given a final written warning means that there had not been any termination by the respondent who were not proposing to re-engage the applicant under a new contract, but to continue under the old one.
In view of the relationship between the applicant and Mrs Young – and the respondent called no evidence to rebut the applicant’s evidence – even though Mrs Young was in the Tribunal room – it seems clear that to reduce the dismissal to a final written warning returning the applicant to a line manager who was attempting to get rid of him was something no employee should be expected to put up with. It was a clear breach of the implied term against conducting themselves without reasonable or proper cause in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties.
The unanimous view of the Tribunal was that the conduct of the respondent was such as to entitle the applicant to terminate the contract of employment without notice. The applicant was constructively dismissed.”

	The tribunal then recorded that there had been no alternative defence put forward that if a constructive dismissal was found it was for a reason within Section 98 of the Employment Rights Act 1996 and was capable of being justified as fair. The tribunal on that basis found that the dismissal had been unfair and adjourned for a further hearing to determine the question of the remedy.

8.	On behalf of the employers, the appellants before us today, Mr Smith in a helpful skeleton argument which he developed orally before us seeks to pursue the appeal on two main grounds in particular. First of all it is contended that the tribunal went wrong in law in addressing and dealing with the issues relating to the difficulties between the applicant and Mrs Young, when according to Mr Smith these had not been at the forefront of the evidence actually given by the applicant to the tribunal in the course of the hearing. He, Mr Smith and the respondents had as a result of that and their own assessment of the case when preparing for the hearing, taken the view that those were subsidiary issues which did not require to be dealt with by them by calling evidence of their own. He further points to the statement by the tribunal in paragraph 11 which appears to have assumed that Mrs Young was herself present in the tribunal room in the course of the hearing, which he says was factually incorrect and invalidated the tribunal’s decision to base themselves on the applicant’s evidence alone on these matters. Mr Smith very properly made it clear to us that no application on behalf of the respondent was made for any adjournment or other opportunity to call further evidence in the course of the tribunal hearing once it had become plain that the applicant was relying on these matters and had dealt with them in his evidence. Mr Smith contends however that the tribunal still went wrong in failing to draw his and the respondents’ attention more clearly to the fact that the tribunal would be regarding those issues as of some significance and would rely on them in their decision.

9.	We are not satisfied that the argument Mr Smith seeks to advance on those issues provides the respondents with a sufficiently arguable ground to warrant the appeal going forward to a full hearing of the Employment Appeal Tribunal on that aspect of the case. The Originating Application to which I have already referred placed it absolutely beyond doubt that the major ground being sought to be argued by the applicant in support of his case that he had been unfairly constructively dismissed by the respondents, was the imposition of a final written warning which placed him effectively in “an impossible position” under the particular line manager Mrs Young, in view of the mutual difficulties between them, making it impossible in his view for him to continue in his employment on that basis.

10.	We have been troubled by what Mr Smith told us about the tribunal having apparently made an incorrect factual assumption, to which they referred in paragraph 11 of their extended reasons, about whether Mrs Young was in the tribunal room during the course of the proceedings or not. However, we have concluded that that is a subsidiary matter so far as the tribunal’s actual decision was concerned, since as they make expressly clear in paragraph 11 itself, the real basis on which they were proceeding to deal with this issue was that the respondents had called no evidence at all to rebut the applicant’s allegations about the difficulties between himself and Mrs Young. There is no doubt that the fact that evidence was not called on this was the result of a conscious decision by the respondents and their advisers who took the view, wrongly as it turned out, that that was not the issue on which the case would turn. That is not a matter for which the tribunal can be criticised. The issue had been squarely raised in the Originating Application. It is not, in our view, an arguable error of law on the part of the tribunal to have decided the case of the evidence as it was in fact placed before them. The reality being that no evidence at all had been called by the respondent to rebut the case which was established to the satisfaction of the tribunal on the evidence put forward by the applicant, we can see no arguable ground for allowing that aspect of the appeal to be pursued and we accordingly reject that ground of the appeal.

11.	The second ground sought to be argued by Mr Smith this morning is that it was perverse of the tribunal to hold that the imposition of a final written warning in the circumstances of this particular case could have amounted to such a breach of the implied term of trust and confidence in the employment relationship as to warrant the applicant treating himself as constructively dismissed and resigning his position as the tribunal held it had in fact done in this case.

12.	I have already quoted paragraph 11 of the tribunal’s decision in which they dealt with this issue and expressed their conclusion that in the circumstances of this case it had been a clear breach of the implied term against the employers conducting themselves against conducting themselves without reasonable or proper cause in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties.

13.	The criticism mounted by Mr Smith is that the tribunal either reached a conclusion which no reasonable tribunal could have reached on that evidence or misdirected themselves in applying, in effect, a subjective test by placing too much account on the subjective impression that the state of affairs had made on the applicant himself and too little account on what would have been reasonable as between a reasonable employer and a reasonable employee. He rightly reminds us that the standard for this question is not merely what conduct on the part of an employer an employee may subjectively dislike, but an objective standard requiring it to be shown that there has been conduct by the employer such that the employee cannot reasonably be expected to put up with it so that the employment relationship of trust and confidence is, for practical purposes, at an end: see Woods v W M Car Services (Peterborough) Ltd [1982] ICR 693.

14.	We accept of course that an objective standard must be applied, but the question in every case is whether on the evidence the conduct of the employer in that particular case has fallen short of the objective standard. That is a question of fact and degree which it is for the tribunal of fact to determine. We remind ourselves that it is not the function of the Employment Appeal Tribunal to substitute its own view on such questions of fact and degree and we only have the power to interfere with the tribunal’s conclusions if we are satisfied that the conclusion reached is so far outside the parameters that can be regarded as reasonable for a tribunal, having heard the evidence, as to count as perverse. On balance, we are not persuaded that in this case the decision the tribunal reached and expressed in the terms we have already quoted was one they were disentitled to reach on the evidence before them. It appears to us, (though we express no view about the decision we would ourselves have come to on such evidence) within the bounds of reasonableness for a tribunal addressing a difficult issue of this sort. In particular, it appears to us that the tribunal correctly directed themselves as to the application of an objective standard as shown by their reference to “something no employee should be expected to put up with”. We accordingly reject the suggestion that there is an arguable ground of appeal on that aspect of the case either.

15.	For those reasons we do not direct that this appeal should go further forward to a full hearing of the Employment Appeal Tribunal and we accordingly now dismiss the appeal.