Appeal No. UKEATPA/0224/11/ZT

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

                                                                                                             At the Tribunal
                                                                                                             On 11 April 2012

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MR K KENNAUGH 	APPELLANT

DAVID LLOYD JONES T/A CHESHIRE TREE SURGEONS	RESPONDENT

Transcript of Proceedings

JUDGMENT

RULE 3 (10) APPLICATION - APPELLANT ONLY

	APPEARANCES

For the Appellant	MS LAURA PRINCE
(of Counsel)
(Appearing under the Employment Law Appeal Advice Scheme)	

SUMMARY
CONTRACT OF EMPLOYMENT – Wrongful dismissal
The Claimant’s case of fundamental breach of contract failed as there was no ground for saying the incidents on which he relied in this lengthy set of proceedings in aggregate constituted such a breach.

HIS HONOUR JUDGE McMULLEN QC

1.	I gave procedural and legal self directions at the outset of this morning’s list which must be read into this Judgment.  I now turn to this particular case. 

2.	On 1 October 2009 in UKEAT/0236/09, HHJ Peter Clark sitting with members introduced the Claimant’s first appeal in the following way:

“1. This hard-fought litigation between Mr Kennaugh, Claimant, and Mr Lloyd-Jones, Respondent; has taken up a disproportionate amount of time and resources in both the Liverpool Employment Tribunal and this Appeal Tribunal.  That said, both parties are entitled to have their case determined properly according to law.  
2. I set out the then procedural history in a Judgment which I gave in an earlier appeal on 14 May 2008.  I need not repeat it here.  In a subsequent Judgment which I gave on 18 July 2008, I allowed the Claimant’s appeal against the ruling made by Employment Judge Robinson at the pre hearing review held on 23 March 2007, that for the purposes of his claim of ordinary unfair dismissal, he had not completed one year’s qualifying employment with the Respondent, his former employer; there had been a breach in the continuity of that employment.”  

3.	That matter was ultimately resolved in the Claimant’s favour. The references which HHJ Peter Clark gave should form part of this Judgment UKEATPA/1135/07, UKEATPA/0208/08, UKEATPA/0710/07 and UKEAT/1135/07, this time on 14 of May 2008.    Further reference should be made to the judgment of HHJ Serota QC sitting on 14 July 2006, UKEAT/0032/06.  

4.	The most recent pronouncement of Judge Clark which I have read ended up in a remission to a differently constituted Employment Tribunal to determine a focused question.  I have given permission to Mr Kennaugh to raise the issues before a full hearing and that is the 2009 Judgment.  In the full glare, therefore, of at least five EAT Judgments, Employment Judge Ryan’s Tribunal descended upon this case in December and January 2010/2011, some five/six years down the road.  The outcome was that the only claim remaining outstanding was constructive unfair dismissal which the Tribunal dismissed and that was the scope of the decision. 

The facts
5.	I do not propose to add to the industry of Judges in this court in describing the circumstances between the protagonists in this case.  In short the Claimant was underpaid, there were breaches of contract.  The Tribunal considered whether those breaches were fundamental.  It decided they were not and gave reasons as to why in the exceptional circumstances what would otherwise be a breach, and indeed often a fundamental breach, of contract - not paying wages due - was not such in this case.

6.	As to the treatment of the Claimant’s grievances, the Tribunal concluded that although a failure to comply with a grievance procedure would often be a breach, the Claimant was to some extent at a fault; he would not engage in the procedure. 

7.	There is now presented a Notice of Appeal against those findings.  The matter came before me, it seemed to me this Judgment was irregular because the title did not include the names of the three persons set to try it and I invited Judge Ryan to correct it because the language is of the third person plural.  I have not seen a correction but I assume without Latin that all things have been done correctly and that this was a three person Tribunal.  It then came back before HHJ David Richardson who indicated that there was no arguable case that the Judgment was perverse.

8.	Dissatisfied with that opinion of HHJ Richardson, the Claimant exercised his right as I described earlier today under rule 3(8) and applied again.  Here is what Langstaff P said:

“It may be rare that non-payment of wages does not amount to a repudiatory breach of contract.  But it is not impossible.  To found a claim for constructive dismissal, a breach of contract by an employer must be repudiatory – i.e. must evince an intention no longer to be bound by the contract such that that “innocent” party no longer has to keep his own side of the bargain.  The Employment Tribunal was clear here in para. 4.2 and 4.5 why the breaches were NOT repudiatory.  That is a finding of fact.  No error of law is disclosed.  The revised Notice of Appeal principally seeks to reargue the case, but does not identify any actual such error.”

9.	Undiminished by all of those pronouncements, the Claimant pressed onto a rule 3 hearing where he had the good fortune to be represented by Ms Laura Prince, providing her services for nothing under the ELAA Scheme.  

The Claimant’s case
10.	She has produced a substantial skeleton argument and added to it with further instructions she received from the Claimant this morning.  She raises three points. 

11.	The first is that the Tribunal failed to consider the last straw.  The last straw is a reference to Omilaju v London Borough of Waltham Forest [2005] 35CA in that the Tribunal does not look beyond one incident.  She contends that the Claimant had alleged more than one incident and that the Tribunal overlooked this and did not pay attention to the whole matter.  This is unsustainable in the light of the passage cited by Ms Prince where the Tribunal describes these breaches.  These breaches are a failure to pay the correct wages; in other words, in a claim of constructive dismissal extending over a period of time leading to the last straw, the individual incidents may or may not each be a breach of contract, including the final one, provided in total they amount to a fundamental breach of contract.  

12.	The Tribunal made reference to the words, “these” and “these breaches” and “they” and considered the string of incidents of underpayment of wages. It has attributed that to a breach of contract and has formed the judgement that they are not fundamental.  As Ms Prince very fairly accepted before me, decisions as to what is fundamental and what is minor are matters of fact and are for an Employment Tribunal not the EAT.  This ground cannot succeed.

13.	The second issue is to do with a grievance. It is contended that the Tribunal’s finding on this was perverse: the Claimant had raised a grievance on 28 January 2005 and there was no attempt to address it until 14 March.  The problem with this submission is that there needs to be reference to the schedule of issues which were raised at a previous CMD and which are cited in paragraph 1.2 of the Tribunal Judgment.  I do not have the actual CMD but I, of course, will take what Judge Ryan’s Tribunal says about it.

14.	Judge Ryan was most scrupulous to outline the issue at the outset of this hearing, no doubt mindful of the close attention this case had received at the Employment Appeal Tribunal. The parties heard him and yet the Tribunal records Mr Kennaugh’s dissatisfaction later during the course of the hearing with that depiction of the issue. I do not propose to be distracted by that, nor was Judge Ryan’s Tribunal.  The issue is simple; there was consideration of the Claimant’s case that his grievances have not been dealt with.  The use of the plural is important, they derive from the passages cited in paragraphs 4.1 to 4.3 of the CMD.  Here the Tribunal is critical of the Claimant, who failed to engage with the attempts by the Respondent to convene a meeting on numerous occasions to deal with it and to discuss it.  How can it be that the Respondent is culpable in those circumstances?  In my judgment there is not a shred of hope of establishing that the Tribunal’s decision is perverse in those findings about the grievance.  Thus, the issues of the grievances cannot contribute to the aggregation of incidents, or even breaches, leading to a finding of fundamental breach of contract; this ground is hopeless. 

15.	I then turned to what is said to be a completely erroneous decision in relation to inconsistency with previous findings.  The test for perversity in this court requires a high threshold to be surmounted by a successful appellant: see Yeboah v Crofton [2002] IRLR 634 CA.  In my judgment the findings by the Tribunal as to the length of the relationship, what was going wrong with it and the apportionment of responsibility as between the Claimant and the Respondent make it plain that the decision by the Tribunal was firmly grounded in fact.  Again, some difficulty faces this court because there is reference to findings by the Tribunal at the PHR which are not before me, but even assuming what the skeleton argument says is correct, this comes nowhere near the threshold for a perversity challenge.

Conclusion
16.	I see no reasonable prospect in any of the three grounds now enunciated before me and this application is dismissed and with it the underlying appeal.