Appeal No. EAT/674/01/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 October 2002

Before
HIS HONOUR JUDGE J McMULLEN QC
MR J C SHRIGLEY
MR G H WRIGHT MBE

MR R S GAUGHT	APPELLANT

MR S FRASER	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	IN PERSON	
For the Respondent	MR RICHARD OULTON
(of Counsel)
Instructed By:
Messrs Davey Son & Jones
Solicitors
2 Friars Court
College Street
Gloucester GL1 2NE

1	This case is about constructive unfair dismissal and Employment Tribunal procedure.  It is an appeal by the Applicant in proceedings against an Employment Tribunal decision.  The Tribunal sat at Bristol under the chairmanship of Mrs C. Christensen on 9 March 2001 and its Decision was promulgated with extended reasons on 18 April 2001.  The Applicant represented himself.  The Respondent was represented by a solicitor.  We will continue to refer to the parties as Applicant and Respondent.

2	The Applicant claimed he was constructively unfairly dismissed.  He also claimed in breach of contract for wages owed to him.  The Respondent contended that the Applicant had been actually dismissed for failure to attend when required to do so.  The essential issues, as determined by the Tribunal in its conclusions, came down to this: whether there was a constructive unfair dismissal by reason of an alteration “by stealth” by the Respondent of the Applicant’s contractual terms. The problem which led to the Applicant’s departure lay in the Applicant’s inability to accept that as an employee he was required to subject himself to the supervision and control of his employer, subject of course to the employer’s requirement to exercise this control in a bona fide and reasonable way.

3	The conclusion of the Tribunal was that the Respondent dismissed the Applicant for a reason which fell within section 98 of the Employment Rights Act 1996 and it was fair. The Tribunal upheld his claim for wrongful dismissal and ordered the Respondent to pay £1,212.66.  The former decision is the subject of this appeal, there is no appeal by the Respondent.  The extended reasons of the Tribunal were given in a reserved decision.  

4	The Respondent’s business is arranging the finance and leasing of vehicles in the corporate sector.  At the relevant time it employed between two and six members of staff.  Its annual profit was approximately £120,000.  It conducted its business partly through the medium of telephone contacts and sales and partly through face to face contact.

5	The Applicant had been employed as part of the Respondent’s sales staff on a part-time basis in 1999.  It was then intended that he should work from home and would travel from his home to see clients as and when necessary.  The Applicant was aged 55 and had previously run his own business.  He was very experienced in business in his own right.  He continued to maintain an interest in a stationery business and, for that purpose in the early stages of his engagement and during the course of a number of changes made to his relationship, it was accepted that he should continue to operate a mobile phone.  

6	The Respondent introduced a number of changes from January 2000, when what occurred was described as an important development in its business career took place.  In January / February 2000 the Applicant would now work full-time and primarily from the Respondent’s offices and service a portfolio of leads from Lex Vehicle Leasing.  

7	The Applicant found himself working in an environment which he did not feel comfortable with.  The Tribunal found that the problem for the Applicant was the degree of supervision and control which the Respondent now sought to exercise over him, given that he was working within their office, rather than at home.  He did not express any of these concerns or dissatisfaction and continued to work under his contract to the best of his ability.

8	The first complaint made by the Applicant related to what the Tribunal categorised as constructive dismissal, and the Applicant said was alteration by stealth.  This expressly referred to the period of change in January or February 2000 and, as the Tribunal held, this was at a time significantly sooner than 28 November 2000, when the Tribunal went on to find, the Applicant was dismissed.  As the Tribunal found, the Applicant worked too long under the change for a constructive unfair dismissal claim to succeed.  As the Applicant made clear in his application for a review, his claim at that time was not about the conduct of the Respondent in January or February but about its conduct between September and November 2000.  

9	The substance of the Applicant’s case on appeal is that the Tribunal did not concentrate upon that latter period, so it is necessary to consider more carefully the grounds upon which he put his claim.  The Applicant made three points.  First, that the Tribunal failed to consider the Respondent’s conduct from September 2000 onwards.  Secondly, that the Tribunal wrongly characterised the conduct of the Respondent as something less than a fundamental breach of contract and, thirdly, that the Tribunal failed to pay any or any sufficient attention to the unchallenged evidence of his witness, Mr Gay.  We will deal with each of these in turn.  

10	We have some sympathy with the Applicant in his claim about the relevant period because the procedural history of this case indicates that the focus of attention ought indeed to be the period from September to November. As a different division of this Appeal Tribunal, on a preliminary hearing on 8 July 2002 under Mr Recorder Langstaff QC, held the conduct of the employer at this time would be extremely important.  The essential claim therefore is a failure to focus upon this period.  There appears to be no challenge to the Tribunal’s approach to the question of law, which is in the categorisation of the conduct of the employer as being a breach of contract, that the breach was repudiatory or at least the last of a series constituting “the last straw” doctrine, that the Applicant resigned in breach and that he had not waived his rights.  Armed with that approach the Tribunal fell upon the relevant period.  

11	We hold that far from paying no attention or little attention, the Tribunal has concentrated exclusively on this period, once it had decided that the initial claim as to January/February failed.  So it was that three issues raised by the Applicant as occurring between September and November are the subject of detailed findings by the Tribunal.  

12	As to the first, the new remuneration package, the Tribunal found that the Respondent accepted the Applicant’s position on this by at least 2 October.  

13	As to the second, the criticism of the Applicant for talking on his mobile phone on 13 November, it has to be said that the Tribunal’s decision is inconclusive.  What can be said however, is that it has not decided that this constituted a breach of contract by the employer or oppressive conduct so as to form part of a series of acts.  

14	As to the third, the grievance which the Applicant set up and which culminated in a grievance meeting on 21 November, it is here that the Tribunal indicates that there did not appear to be any failure by the Respondent to carry out the grievance procedure, or to give the Applicant a proper hearing.

15	Those three factual issues are the substance of the complaints during what has now become the relevant period, late 2000.

16	Today, we have been taken to the minutes which the Tribunal accepted to be correct of the grievance hearing on 21 November 2000.  They repay careful reading because the Applicant was asked why, following the mobile phone incident, he had not returned to work and he is reported as saying that he felt stressed, under pressure.  What he was doing was not what he was originally employed to do.  He said:

“I do not wish to be part of an internal capacity, that is not my role.  My role is as an outside sales job.  If I wanted to be what you are now asking me to be then I would have applied for that job.”

17	Mr Oulton, appearing for the Respondent today says we think correctly, that this is a fair betrayal of the state of mind of the Applicant at the time and that the incident with the mobile phone has little to do with the reasons for the Applicant’s conduct and responses to the mobile phone incident.  That then disposes of the first ground of appeal.

18	The second ground of appeal is that the Tribunal failed to characterise the conduct of the Respondent as a breach of contract.  Since we have dealt above with the three incidents, it seems that there is no breach of contract here and there is not even a series of improper conduct, even if not characterised as breaches in themselves, such as would form the basis for “a last straw” case.  The characterisation of this conduct by the Tribunal is a matter of fact for it, so that when it decided that all this picture did not add up to a fundamental breach of contract, that is a finding of fact upon which there was ample evidence and upon which its judgment cannot be faulted by us.

19	The next issue is the mobile phone incident and we regard this, as the Tribunal did, as not constituting in itself a fundamental breach of contract and, further, the minutes which we have cited indicate an alternative reason for the Applicant’s behaviour, not driven by his response to the mobile phone instruction.  Furthermore, the Tribunal found in what it epitomised as the crux of the issue as follows.

“We had no evidence that it [the supervision] had been exercised in a way that was contrary to this requirement.  The applicant simply did not agree with the way in which the respondent was running its business and when the respondent attempted to exercise its control over the applicant and further require the applicant to adapt to legitimate business developments the applicant resisted in a way which made it inevitable that the employment relationship did not have a long term future.”

20	Turning then to ground three, which was the subject of an order by a third division of this Employment Appeal Tribunal. It is a complaint by the Applicant that the evidence of Mr Gay had not been considered by the Employment Tribunal or considered carefully enough.  For that reason the procedure of the Employment Appeal Tribunal was invoked to require the Applicant to make a statement on oath about what had occurred.  He did so and this was accompanied by the statement of his witness, Roy Gay, upon which the Chairman was asked to comment and we have her comments dated 1 February 2002.  

21	The essential issue is that Mr Gay was ready and available to give evidence but when the time came for him to be called, the Chairman asked the Applicant whether he was content for it to take Mr Gay’s evidence as read.  The Chairman said, and Mr Gaught today has confirmed, that it was because the Respondent did not seek to cross-examine on Mr Gay’s evidence and that the evidence was relevant to the question of the Respondent’s conduct and his contention that he had been constructively dismissed.  It was agreed that proceedings should go on this way and, we are told today, that there may well have been some pressure on time.  Nevertheless, that was a perfectly proper procedure, given no challenge by the Respondent to the evidence.  However, the Tribunal considered this evidence, as is plain from the Chairman’s comments, and said this.  “We find it to be of little or no assistance on this point”.  This is because Mr Gay’s evidence is to some extent a matter of opinion by him and Mr Gay himself left the Respondent in August.

22	It follows from what we and Mr Recorder Langstaff’s Employment Appeal Tribunal said about the relevant period that what Mr Gay could add to the understanding of the Tribunal about this period would be of extremely little assistance, as the Tribunal Chairman found.  Thus no injustice has been done by the way in which this evidence was read.  Indeed, we would go further and say that it is a sensible way to proceed, where the Tribunal has read the evidence of a witness and particularly so where there is no challenge by the other side, to treat the evidence as read and to allow the evidence to be considered.  That, however, does not mean that every word in it is accepted as relevant and as of assistance to the Tribunal and once that is understood, it becomes clear that no injustice has been caused here by failing to adopt the opinion expressed by Mr Gay of the relationship between the Applicant and the Respondent at a time prior to August 2000.

23	For those reasons the appeal is dismissed.