Appeal No. UKEAT/0010/04/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 September 2004

Before
HIS HONOUR JUDGE ANSELL
MR B R GIBBS
MR J R RIVERS CBE

MR L MAYER	APPELLANT

BRITISH BROADCASTING CORPORATION	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR DAMIEN BROWN
(of Counsel)
Instructed by:
Messrs Thompsons Solicitors
Congress House
Great Russell Street
London WC1B 3LW	
For the Respondent	MR GERARD CLARKE
(of Counsel)
Instructed by:
BBC Employment Law Department
Room MC3 C5
Media Centre
Media Village
201 Wood Lane
London W12 7TQ	

SUMMARY

Contract of Employment / Unfair Dismissal

Constructive dismissal.  Breach of trust and confidence.  Criticism by manager.  Inappropriate language and timing.  Reasonable to raise issues.  Whether sufficiently serious to amount to breach of implied term.

HIS HONOUR JUDGE ANSELL

1.	This is an appeal against a decision of an Employment Tribunal held at Ashford in Kent in September of last year who, in a reserved decision promulgated on 15 October, unanimously decided that the Appellant had not been subjected to any detriment on the ground that he had made protected disclosures, and that he had not been unfairly dismissed.  He seeks to appeal the unfair dismissal finding, and this appeal was set down following a preliminary hearing, the order made on 27 February 2004, the court presided over by His Honour Judge D Serota QC.

2.	The Appellant, Laurie Mayer, is a well known and respected television reporter and newsreader, and after a very successful career, both for the BBC and for other organizations, he rejoined the BBC in April 2001, and in particular to front the news programmes put out in the BBC South East region.  He was given a one year contract from 23 April.  Although he regarded himself as a freelance broadcaster, the Tribunal in fact, at a preliminary hearing, determined that he was an employee for the purposes of the Employment Rights Act 1996.

3.	The newsroom was based in Tunbridge Wells, and the Tribunal decision went over the various staffing arrangements there.  The Head of the Region was Laura Ellis, who in turn reported to Andy Griffee, the BBC Controller of the English Regions, who in turn reported to Pat Loughery, Director of Nations and Regions.  

4.	There was certainly some degree of tension within that newsroom.  Part of the problem was that the Managing Editor, Rod Beards, lived with one of the two Assistant Editors, Davina Reynolds, and although they were not officially in direct line-management, the relationship, and particularly Davina Reynolds’ style, caused some difficulties and tensions within the newsroom, and it was said staff morale was affected.

5.	In May, Mr Mayer spoke to Laura Ellis about issues of staff morale, particularly centring around the behaviour of Davina Reynolds, and other staff had made complaints.  Laura Ellis accepted that the relationship was not satisfactory, but accepted responsibility for that, and although bullying and harassment had been raised by Mr Mayer, Laura Ellis said that she had not received any specific complaints of that nature.

6.	There was some unhappiness expressed by Rod Beards about the tendency of Mr Mayer to comment on items as they were being broadcast, and some time in the Tribunal was spent regarding an incident concerning the station cat, and also a mistake he made about the name of a railway station.

7.	However matters seem to have got on, and the Tribunal records that it wasn’t until 2002 it seems that matters again were revised.  In February 2002 Mr Mayer drafted a letter to Andy Griffee, setting out concerns.  He did not send the letter, but he spoke to him some days later.  Again the main part of the concerns were the relationship between Mr Beards and Miss Reynolds, and how it was alleged that that  relationship was “reducing staff to tears”, and he also complained that in his view Miss Reynolds was lazy and professionally incompetent.  The National Union of Journalists also began to get involved in February as well.  A staff meeting was called by Laura Ellis in March for the staff to raise any concerns.  The Applicant himself did not raise any concerns at that meeting.

8.	His original one year contract was due to expire in April 2002 and he was offered a six month extension until the end of October 2002, and he was also told that the programme, South East Today, was going to have a double-headed presentation, in other words that he would be working with a co-presenter, Beverly Thompson, and that was due to start in the middle of June.

9.	Pat Loughery played a visit to Tunbridge Wells on 17 May.  Again Mr Mayer said the staff treated him as a father figure and many staff felt that they were being misused, and there was a further meeting with Andy Griffee on 7 June, and again the Applicant raised four matters; lack of resources; failures in the newsroom planning; questions about the BBC initiative; and questions concerning the introduction of the double-headed presentation.

10.	In June it was decided that his contract would not be renewed after it expired at the end of October, and he was informed of that fact on Tuesday 25 June, following discussions between his agent and Laura Ellis, and it would agreed that the announcement of his departure would be made prior to his holiday in mid July.  He would in fact then go on holiday and not return, although would be paid up to the end of his contract.

11.	The key date relating to the unfair dismissal, which is alleged to be a breach of the implied term of trust and confidence, occurred on the after of 26 June.  First of all that afternoon he spoke to Rod Beards, who expressed concerns about his enthusiasm and commitment, and the BBC, he said, wanted presenters who would be more supportive, and then just before the programme was due to go on air that evening, Laura Ellis spoke to him because she was concerned that news of his departure was leaking out.  She said that the station wanted presenters who were more supportive of management and she said that the viewing figures were terrible and she considered that it was the Appellant’s fault.  She also said there had been criticism about his style of presenting, although he had not been notified of any criticism prior to this.  He asked to see evidence of the poor ratings, but Mrs Ellis did not that that was appropriate.  He was so upset by this conversation that he decided not to present the evening show, which was done by Beverly Thompson on her own, and effectively left the organization, alleging constructive dismissal.

The Tribunal’s findings on constructive dismissal

12.	Having set out the facts again in paragraph 17, the Tribunal recorded that the Appellant told the Tribunal he felt shattered and completely undermined by the events on this particular day, and he felt that any remaining trust or confidence in his management had been destroyed, and he therefore said that the Respondents were in breach of what is known as the implied term of trust and confidence.

13.	The Tribunal dealt with the matter then at paragraph 18 in these terms:

“We have to ask ourselves whether there was such a breach of contract, and in this case we have only to consider the one short conversation between the Applicant and Mrs Ellis.  It was clearly inappropriate for Mrs Ellis to raise such issues shortly before the Applicant was due on, and it was also inappropriate management to raise the issue of viewing figures without presenting any supporting evidence.  It is understandable that the Applicant may well have felt aggrieved about these issues being raise with him, particularly as he had received no warning that they would be raised, nor had he received and formal criticism previously.  However, we cannot say that in raising these issues, Mrs Ellis put the Respondents in breach of contract.  The issues such as the style of presentation and the viewing figures were clearly matters which were capable of properly being raised between a presenter and his manager, and the fact that they were raised at an inappropriate time and in a rather peremptory manner, does not, in our judgment, render the Respondent in breach of contract.  In all the circumstances, therefore, we find that there was no breach of contract by the Respondent, and on 26 June 2002 the Applicant resigned from his employment.”

14.	It is that paragraph of which criticism is now made on behalf of the Appellant, and whilst on the face of it that paragraph appears simply to be a factual determination and a conclusion reached by the Tribunal, it is submitted on behalf of the Appellant that there are errors of law within that paragraph in the following way.  It is said, first of all, that the conclusion the Tribunal come to that the issues of style of presentation, and the viewing figures were clearly matters that were capable of properly being raised between a presenter and his manager, were findings which were in conflict with a later paragraph within the Tribunal’s decision, paragraph 32, where they refer to it being a sad case between a much respected broadcaster and the BBC, and continue in this way:

“Whilst he was working no criticisms were made of his performance or style of presentation, and it was only on 26 June and after these proceedings started that the BBC have sought to justify their actions by raising criticisms.  Even then, the best that they could do was to refer to two incidents.  One related some comment made by the Applicant, off air,  concerning a policeman and freemasonary and the other was a most trivial incident, which occupied far too much time of the Tribunal, involving a station cat.”

15.	We do not see the conflict between those two paragraphs in the same way as is submitted to by the Appellant.  Had the paragraph come to factual conclusions, that there was absolutely no justification whatsoever in the employer’s raising with Mr Mayer issues such as style of presentation and viewing figures, then it seems to us that that would have put that earlier paragraph in a wholly different light.  But those are not the findings that the Tribunal came to.  They are specific in saying that those two issues were matters that were capable of being properly raised between a presenter and his manager, although then go on to criticize the timing and the manner in which they were put. 

16.	However, the Appellant goes further and says this, that in the circumstances of this particular conversation, the inappropriate timing and the peremptory manner are in themselves sufficient to enable a Tribunal to come to the conclusion, and the only conclusion, that they would amount to a breach of trust and confidence.  In other words, for this appeal to succeed, the Appellant has to be able to say to us that the Tribunal, in paragraph 18, bearing in mind the issue of timing and manner, could only have come to one conclusion, namely that both those factors were so serious that they would lead the Tribunal to come to the conclusion that they were breaches of trust and confidence.

17.	The term, breach of trust and confidence, of course emerges in a number of authorities, particularly in the case of Malik v Bank of Credit and Commerce International SA [1997] IRLR 462, where Nicholls LJ at paragraph 8 referred to the fact that parties were agreed:

“…that the contracts of employment of these two former employees each contained and implied term to the effect that the bank would not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”

Later on Steyn LJ, at paragraph 54, said this:

“The employees’ primary case is based on formulation of the implied term that has been applied at first instance and in the Court of Appeal.  It imposes reciprocal duties on the employer and employee.  Given that this case is concerned with alleged obligations of an employer I will concentrate on its effect on the position of employers.  For convenience I will set out the term again.  It is expressed to impose and obligation that the employer shall not:
‘…without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.’”

18.	The term was taken up in a number of authorities, more recently in a case at this Court, Morrow v Safeway Stores plc [2002] IRLR 9, a judgment given by Ms Recorder Cox QC (as she then was).  Miss Morrow had been employed as the bakery production controller and the store manager on a particular day gave her a severe telling off in front of members of staff and at least one customer, complaining that a certain type of bread on promotion had not been placed on the shelves.  He had said to her, “if you cannot do the job I pay you to do, I will get someone who can”.  The Tribunal held that the store manager’s criticisms, criticising her in public in the way that he did, was a breach of the implied term of trust and confidence, although they went on to hold that not every breach of such a term was so serious as to amount to repudiatory breach.

19.	The EAT rejected that distinction, and felt that once a tribunal found that there is a breach of the trust, that breach, as it were, could not be graded into those that are more serious and those that are less serious; those that will lead to the conclusion that there was a breach of the contract and those that will not lead to that conclusion.  And the Learned Recorder again referred to the term at paragraph 23 in these terms:

“In our view, however, the authorities show that, while there have been slight variations in the formula used to describe this implied term over the years, on only has its existence never been in doubt but its scope has never altered.  We agree with the very recent observations of this Appeal Tribunal in BG plc v Mr P O’Brien [2001] IRLR 496, to which we were referred in argument in the present appeal, that, in every case:
	‘The question is whether, objectively speaking, the employer has conducted itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between the employer and the employee.’
If the employer is found to have been guilty of such conduct, that is something which goes to the root of the contract and amounts to repudiatory breach, entitling the employee to resign an d claim constructive dismissal.  Whether there is such conduct in any case will always be a matter for the employment tribunal to determine, having heard the evidence and considered all the circumstances.”

20.	The Recorder went on to say this:
“Unfortunately, the employment tribunal in the present case does not refer to any authority on the point, which may have contributed to the error which we consider occurred.  The tribunal’s finding, at paragraph 19, that Mr Walsh’s conduct in criticising the appellant in the way that he did on 20 August:
‘…certainly amounted to a breach of the implied term in [her] contract that the employer should maintain her trust and confidence’
seems to us a permissible conclusion.  A public reprimand from a manager who is angry with the employee, in the presence of both customers and members of staff is, as the tribunal find:
	‘…plainly to be deprecated.’
It could be said, viewed objectively, to be conduct which is likely, at least, seriously to damage the relationship of trust and confidence between employer and employee, having regard to the ‘relational contract’ which exists between them and in which the self-esteem of an employee is an important factor.
We take the view that, in considering the application of the implied term, the tribunal led themselves into error by seeking to separate the actual words spoken, which they thought were not in themselves unreasonable, given the history, from the circumstances in which the reprimand took place, which they described as:
	‘regrettable’.
In so doing they appear to have directed themselves that they could therefore find a breach of the implied term of trust and confidence, which was nevertheless in all the circumstances not sufficiently serious to amount to a repudiatory breach entitling the appellant to resign.  We regard that as a misdirection and so we find in relation to the first issue in this appeal.  In general terms, a finding that there has been conduct which amounts to a breach of the implied term of trust and confidence will mean, inevitably, that there has been a fundamental or repudiatory breach going necessarily to the root of the contract, as the EAT recognised in Woods.”

21.	There the Learned Recorder is making it clear that whether or not there is conduct in any particular case is generally a matter for the industrial jury, namely for the employment tribunal to consider.  

22.	Mr Brown for the Appellant in this case seeks to draw some comparison between the public reprimand that Miss Morrow received in her case, to the reprimand being received by Mr Mayer in this case, at a time just before he was due to go and present his programme;  he sought to compare the two situations.  But it seems to us, at the end of the day, that the issues of workplace conduct and how grave they are are very much a matter for the Tribunal to consider, as they did in this case, against a background and against a finding which, as we have indicated, was that the issues which were to be raised by Mrs Ellis were in themselves properly capable of being raised between a presenter and a manager, and that effectively is the basis of the decision in paragraph 18, that these were matters which could properly be raised, albeit at a more appropriate time and in a less peremptory manner.

23.	Mr Clarke for the Respondents argues that there is a danger, if one applies too high-powered a microscope to these events, that there is the danger that, as it were, many workplace disputes, arising out of errors of judgement on the part of management in the manner in which they speak to staff, can be elevated to suggest that they amount to a fundamental breach of contract, a breach of the implied term of trust and confidence.

24.	We are quite satisfied that in this case the Tribunal adopted the correct balance, and came to the view that, although there were mistakes made by management in their presentation and their timing, they were not such that went to the root of the employment contract between the parties in this case.  It seems to us it was for them to assess the evidence, they heard over four days, for them to come to a view about the issues that were being raised by Mrs Ellis with the presenter, and the manner in which that was done, and we can find no fault in the conclusion that they came to.  Accordingly this appeal will be dismissed.