Hill v J & G Holdsworth [1992] UKEAT 248_90_2710

EAT
Hill v J & G Holdsworth
[1992] UKEAT 248_90_2710 · 1992-10-27
MR JUSTICE WOOD (PRESIDENT): By an Originating Application dated 19th January 1990, Mr Hill complained that he had been unfairly dismissed by his employers, J & G Holdsworth. He had legal assistance in drafting his Originating Application and it sets out his case with clarity.An Industrial Tribunal, sitting at Colwyn Bay on the 14th March 1990, rejected his application. He sought a review, again on this occasion with a letter written by a Solicitor on his behalf, that review was refused. He now appeals to this Court.This is, in some ways, a sad and unfortunate case. The Applicant had been working for this small family firm since the 8th March 1965. It was on the 15th November 1989 that he walked out. It was quite clear that his case rested upon an allegation of constructive dismissal. It was therefore for him to establish that case. As we have already mentioned, he had taken legal advice, but he appeared himself before the Tribunal.His working life with this business had started first as a labourer. Then he had worked his way up to become a skilled asphalt spreader. The employees were only some dozen. The two partners in the business were involved in the day to day work and the way in which this business operated was that small gangs of three or four went out to complete various types of asphalting. Some of it was called "vertical", namely works on roofs or slopes, but not horizontal floor spreading, which was called "horizontal work". Because one could carry out the horizontal work quicker, with a machine, it usually paid better bonuses. The vertical work probably could be said to require greater skill.The Applicant was a good workman. He was trained and experienced. Despite the fact that he left on 15th November the Holdsworth brothers wished to keep him on, wished that he had returned, and indeed were holding the door open for him right until the hearing in the March 1990. It was therefore abundantly clear that they did not want to lose him.The way in which these teams worked was that probably one of the teams was the more experienced and the back-up members were less skilled and therefore looked to the experienced man as the leader of that team on that particular day, depending who the individuals were.In November 1988 Mr Hill, unfortunately, became quite seriously ill. He had a hernia developing into serious back trouble. There was talk about discs and the problems that we all know about. The result was that he had to be away from work until May 1989; that was a considerable period of time, and whilst he was away the Respondents found it necessary to engage the services of another asphalt spreader, he was a Mr Williams. He was an older man, he was some 56 years of age, he had had some 40 years in the trade and that was possibly a greater experience than Mr Hills.The business was clearly doing well enough because when Mr Hill was fit enough to return to work there was no question of Mr Williams having substituted for Mr Hill. The work was going well, there was sufficient work and both the men were being kept on. Clearly, in a small firm like this one would wonder whether there was, in fact, a substitution. That must have gone through the mind of Mr Holdsworth, because as the Tribunal found specifically, he told Mr Hill when he came back that he, Mr Hill and Mr Williams, would be working in equal status on the various tasks. It was not the fact, as we have seen from the Notes of Evidence, that Mr Hill and Mr Williams were to work together all the time, in fact on many occasions, as clearly indicated, they worked in different gangs but there were times when Mr Williams and Mr Hill worked in the same gang. Mr Hill was a man who was given to complaining at times, Mr Holdsworth said "we were used to the Applicant complaining about most things" but the Tribunal found that he had two particular complaints after he had returned to work in May 1989.The first was that Mr Williams was getting the more profitable tasks and therefore earning more. The Tribunal examined that complaint and found that there was nothing in it. This was a complaint and a belief firmly held, but it was without foundation and as the Tribunal commented the fact that this belief was "completely unfounded", that is their wording, coloured our attitude when considering his second complaint.The second complaint was that when Mr Williams and Mr Hill worked together, in some way Mr Williams took over authority which the Applicant previously had as a chargehand in charge of that team in which he was working. The Tribunal looked at that complaint from two aspects, first, it examined the question of whether, in fact, Mr Hill was a chargehand and decided against him. It was merely that the most experienced member of the gang took the lead. But secondly, they examined what may be called a second limb of that complaint namely, that when the work was allotted in the morning it was Mr Williams who picked up the paper work from the office for the job that they were going to do that day. This was found to have been purely because Mr Williams arrived earlier and that there was nothing ulterior in the fact, not the arrangement, the fact that Mr Williams did pick up the paper work. The Tribunal say this arose simply because he was there first, had Mr Hill been there first he would have had the instructions. We therefore find that there was really no foundation or substance in either of those two complaints.Obviously, the Tribunal were in a position to assess the two men, both gave evidence as did the Holdsworth brothers.

(d) of their decision:

"We have seen both Mr Hill and Mr Williams and we feel that there possibly was a personality conflict between the two of them and we can quite imagine that Mr Williams would in practice assume a position which really the employer had not conferred upon him and the applicant, no doubt, because he was still recovering from his illness, allowed that to happen. At no point in time was he ever told specifically by his employer that Mr Williams was to be in charge. The applicant quite clearly felt he had a genuine grievance and that his employers were in some way blind to it. He felt that his responsibility had been taken away and he was being embarrassed on site by Mr Williams assuming apparent control of the team."
That was then the assessment. There was personality conflict. There was a genuine belief of being "done down" but there was really nothing to it. But there was the complaint which they were examining and they heard evidence about it.Matters came to a head on Thursday 15th November. On that date the Applicant, Mr Hill, had been working the previous three days on a job at Rhyl, and we understand that that was "vertical" asphalting. Mr Williams was told on that day that he could leave Rhyl and could go to a job at Portmadoc, but Mr Hill was to return to the job at Rhyl. Mr Hill was not pleased and said so. He was given an opportunity of going to Portmadoc but refused. There was little more said; Mr Hill took it upon himself to collect his tools and go home, and effectively he walked off his job.Of that incident it is to be noted that Mr Hill was not being forced to go with Mr Williams on the job at Portmadoc, he could have kept his own gang and continued at Rhyl, so that probably the only basis for that Rhyl complaint was that he thought Mr Williams was going to earn more money on "horizontal" asphalting with a machine at Portmadoc; he was going back to Rhyl. But the whole of that basis of complaint is totally undermined with the express finding that there was no question of Mr Hill earning less than Mr Williams. The phrase used, as I repeat it, was that it was "completely unfounded".The employers, the Holdsworths, tried to keep Mr Hill but he was quite determined to go.That is the story and the Tribunal at the end of their decision reach this conclusion, and I am reading the last part of the judgment. They look at the term which was said to have been fundamental term, which was breached. A fundamental breach, as we all know from Western Excavating (ECC) Ltd v. Sharp [1978] ICR 221 , amounting to a repudiation, they said:
"The term can either be expressed or implied. We have considered this case very carefully and we cannot see that there is any express term in the contract, nor indeed any implied term, that in the circumstances the employers can be said to have breached. The applicant certainly had a grievance, or thought he had, but that is not the same thing and in our view, and it is a very sad case indeed because he had worked for this company well for over 20 years, he took it upon himself to walk out of his job. In those circumstances we are satisfied that he was not dismissed and therefore his application fails."
We would agree that it is a very sad case but we are unable to accept that there was any error of law in the direction which they gave themselves. This was essentially a question of fact.Mr Spencer has said everything that could properly be said on behalf of the Appellant. In his Notice of Appeal the way it is put is, that the complaint was:
"that Albert Williams was wrongly assuming a role of supervision and authority over the Appellant with the Respondents' knowledge and/or tacit approval."
That is the way the Notice of Appeal is put and that that was the way the case was put and that was what the Industrial Tribunal should have spotted was the issue and, although the evidence was there they failed to deal with that issue.Let us just see what the Tribunal could have realised was the issue from the documentation before them, because they are not meant to second guess in every case that comes before them, they must have some reason to think that a particular issue is being raised. The function of a tribunal was dealt with by the Court of Appeal in Martin v. Glynwed Distribution Ltd [1983] ICR 511, the learned Master of the Rolls, Sir John Donaldson, at page 520 at "F" says this:
"Finally it was submitted that the industrial tribunal was under a duty to state the law, it primary findings of fact, its secondary findings of fact and its conclusions. This is wholly misconceived. The duty of an industrial tribunal is to give reasons for its decision. This involves making findings of fact and answering a question or questions of law. So far as the findings of fact are concerned, it is helpful to he parties to give some explanation for them, but is not obligatory. So far as the questions of law are concerned, the reasons should show expressly or by implication what were the questions to which the industrial tribunal addressed its mind and why it reached the conclusions which it did, by the way in which it does so it entirely a matter for the industrial tribunal."
What the Tribunal was looking at and what it had indicated the way in which it was going to approach the matter was by reference to the well known case of Western Excavating (ECC) Ltd v. Sharp [1978] ICR 221 , which has the classic statement by Lord Denning, who was then Master of the Rolls as to the basis upon which a constructive dismissal should be considered. But it also contained a short judgment from Lord Justice Lawton, which is pertinent to this type of case with which we are considering. He says this at page 229 at "D":
"For the purpose of this judgment, I do not find it either necessary or advisable to express any opinion as to what principles of law operate to bring a contract of employment to an end by reason of an employer's conduct. Sensible persons have no difficult in recognising such conduct when they hear about it. Persistent and unwanted amorous advances by an employer to a female member of his staff would, for example, clearly be such conduct; and for a chairman of an industrial tribunal in such as case to discuss with his lay members whether there had been a repudiation or a breach of a fundamental term by the employer would be for most lay members a waste of legal learning. There may occasionally be border-line cases which would require a chairman to analyse the legal principles applicable for the benefit of the lay members; but when such cases do occur he should try to do in the kind of language which 19th century judges used when directing juries about the law applicable to contracts of employment, rather than the language which nowadays would be understood and appreciated by academic lawyers. I appreciate that the principles of law applicable to the termination by an employee of a contract of employment because of his employer's conduct are difficult to put concisely in the language judges use in court. Lay members of industrial tribunals, however, do not spend all their time in court and when out of court they may use, and certainly will hear, short words and terse phrases which describe clearly the kind of employer to whom an employee is entitled without notice to rid himself."
That is a commonsense, perhaps picturesquely expressed, view of the principles. Another way in which the implied term is put, was put by Lord Browne-Wilkinson in the well known case of Woods v. W M Car Services (Peterborough) Ltd [1981] ICR 666 at p.670 "G" and there he says, giving the judgment of this Appeal Tribunal in that case:
"In our view it is clearly established that there is implied in a contract of employment a term that the employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or serious damage the relationship of confidence and trust between employer and employee:"
I repeat those words "without reasonable and proper cause conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust between employer and employee." Then he continues:
"To constitute a breach of this implied term it is not necessary to show that the employer intended any repudiation of the contract: the tribunal's functions is to look at the employer's conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it;"
There are the terms, they are well known, they were impliedly referred to in that last passage which we read from the judgment of this Tribunal.Looked at, against that, what had they got before them that should have indicated the sort of problems that existed? In the Originating Application a number of criticisms were made of the employers. First of all it said, that in fact, if not strictly in contract, Mr Hill was a chargehand. That is, in fact, rejected by the Tribunal. Secondly, that the paper work incident was mentioned as a foundation for complaint, that was rejected. Then the financial loss was mentioned in the Originating Application and that was rejected. In fact, the case was made that the employers, as the Applicant would have them, and the Tribunal believe, wished to get rid of him and the essence of it was that he had been demoted - and there it is in there.The majority of those matters were rejected. But the Tribunal did, as we have already indicated, look to see whether there was any real grounds for complaint and they decided that there were not any.The way in which the Application for Review was also of importance, that being drafted by Solicitors, ended in paragraph 5 accepting there was no express term which the employers can be said to have breached and continues thus:
"It is the Applicant's case however that it was an implied term of his employment that he was in charge of his team. He was regarded as chargehand prior to his illness, and expected to return to his work in the same position. By their conduct and their failure to make matters clear to him, and their denial that he was a chargehand, Mr Hill feels that the Respondents constructively dismissed him and asks the Tribunal to review its decision."
So he is still alleging he was a chargehand and in charge of his team and this was, in effect, a deliberate demotion.That basis of complaint was considered by the Industrial Tribunal, they found facts - and indeed Mr Spencer has been frank enough to concede it - which were against his client. In so far as is suggested that the Tribunal failed to consider and reflect upon the issue raised in the Notice of Appeal, in our judgment that was not open to them on the evidence. It was clear that Mr Hill was told that he was on equal status with Mr Williams and that that was clear. The finding also was against a background that the Respondents did not wish Mr Hill to leave; they did not wish to squeeze him out; they needed him, they needed both men, and that they had clearly explained the position. This was a very small business, it seems, looking at it from the outside that it was a happy small business, and there is nothing in the paper work that we have looked at to indicate that there was a grievance which the Tribunal were aware of, or which they ought to have been aware of, and which they failed to examine.In the outcome this appeal must be dismissed.