Connor v Thurrock Borough Council [1992] UKEAT 313_91_0212

EAT
Connor v Thurrock Borough Council
[1992] UKEAT 313_91_0212 · 1992-12-02

JUDGE J HICKS QC:

This is an appeal by Mr Alan Connor from the decision of the Industrial Tribunal on 12 April 1991, dismissing his application for relief on the basis of unfair dismissal by his employers the Thurrock Borough Council, and it is material to one of the grounds of appeal that that dismissal occurred at the close of the Applicant's case before the Industrial Tribunal, the Respondents not being required to call evidence.Mr Connor was employed by Thurrock Borough Council for a number of years, but it seems to be accepted at the hearing before us that his relevant employment began on 13 June 1988.

(c) of the Act, which reads as follows:

"(2) Subject to subsection (3), an employer shall be treated as dismissed by his employer if, but only if,- (a) ........ (b) ........ (c) the employee terminates that contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer's conduct."
That was the issue before the Industrial Tribunal - whether Mr Connor was entitled to terminate his employment without notice by reason of the employers' conduct.The grounds of appeal are:
"(i)That the finding by the Tribunal that there had not been any breach of Contract on the part of the Respondent is perverse in that it is one which no reasonable Tribunal could have reached and/or is obviously wrong.
(ii)Further or alternatively to (i) above the Tribunal's decision that there was no case for the Respondent to answer was obviously wrong."Shortly after his letter of resignation Mr Connor, as he had envisaged in the letter of resignation itself, gave his explanations for that action in a letter of 13 November 1990 and they were as follows:
"1.Unprovoked verbal, possibly slanderous abuse by the Community Action Officer. [That was his immediate superior Mrs Nash].
2.The council's disregard of my contract of employment by failing to honour my job description in the spirit of Policy and Resources Committee minute no.10 8/6/88.3.By the council imposing a qualification bar on my career grade scale in the pretence that this was ratified by the policy and resources committee of 8/6/88 and by the council failing to reasonably honour the conditions placed on the qualification bar.4.That the council, by allowing the Community Action Office for storage purposes, created intolerable working conditions, in defiance of its own health and safety policies and fire regulations."Of those four grounds for resignation Mr Connor, through Miss Tagliavini, today relies only on the second, "disregard of the contract of employment", and the relevant terms of the contract of employment are to be found first in the Job Description, in which six matters are listed as main activities of which the first (and the one on which he relies) is:
"1.Assisting in the maintenance and delivery of a benefit and money advice service to such client groups as may from time to time be determined, including home visiting for this purpose."
His complaint is that the benefit and money advice service was never brought into being, so that part of his Job Description was never available to him and it is not in dispute that the benefits and money advice service was not fully brought into being. He also relies in that context on the minute of 8 June referred to in his reasons for resignation and in particular to the phrase in the report submitted to the Policy and Resource Committee that a group should be set up:
"the primary role of which would be to provide an advice service for claimants and promote the take up of all welfare benefits"
the terms of the resolution of the committee that:

"(2) A benefits advice service as outlined above be established ...."

and then that:
"... - the current permanent staff within the Centre for the Unemployed [which included Mr Connor] to be redeployed to the new service."
The Industrial Tribunal heard Mr Connor's evidence and considered the documents before them and the substance of their conclusions is in paragraph 3 of their Reasons and reads as follows:
"Having heard the evidence of the Applicant, it is clear that he was unhappy over a longish period in the employ of the Respondent. It has emerged that the main reason for his unhappiness was the appointment of Mrs Nash whom he considered was unsuitable for the job, as she had neither the necessary qualifications or experience. He has said so in terms and communicated those views in a copy letter sent to the personnel department (pp 42 to 50 of the bundle). The original was a letter he had written to a barrister friend. It is not necessary to quote from that letter at this stage except to summarise it as I have above. His oral evidence and the documentation he has produced are a little confused. However, even on his evidence, we are not satisfied on the balance of probabilities that there is any breach of contract on the part of the Respondent, let alone a fundamental or serious breach in the allegations of the Applicant. The main point that has emerged is that he and Mrs Nash did not get on well at work and that no doubt caused the friction and unhappiness he experienced."
Looking at that in the light of the grounds of appeal and considering first the first ground, "the finding of the Tribunal that there had not been any breach on contract on behalf of the Respondent is perverse in that it is one that no reasonable Tribunal could have reached and/or is obviously wrong", we take the view that that expresses too narrowly what is undoubtedly one of the bases upon which the decision of an Industrial Tribunal can be set aside by this Appeal Tribunal. We think a more accurate way of expressing that ground is that there is an error of law on the part of the Industrial Tribunal and, therefore, a ground of appeal, if the decision reached by the Industrial Tribunal is perverse in the sense that it is one which no reasonable Tribunal correctly directing itself as to the law could have reached. It is, in our understanding, the decision which has to be shown to be perverse in that sense, not just some particular finding of fact on the part of the Tribunal.As to the decision which the Tribunal had to reach, whether there was constructive dismissal in the statutory sense which I have rehearsed, the Tribunal in paragraph 2 of its reasons referred to, and plainly accepted as guiding it, what it describes as the "leading case" of Western Excavating (ECC) Limited v Sharp [1978] ICR 221 , and the relevant passage from thejudgment of Lord Denning is quoted as follows:"If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract." (p.226A)Having directed themselves correctly in that way the Tribunal, in our view, in paragraph 3 of their Reasons, which I have read earlier, found, and we are satisfied that having directed themselves correctly that they could reasonably have found on the evidence before them, that the true reason for the resignation by Mr Connor was immediately his quarrel with Mrs Nash and generally what they describe as the fact that he and Mrs Nash did not get on well at work. The Tribunal saw and heard Mr Connor, we have only the documents and the note of evidence, and in our view it is quite impossible to say that no reasonable Tribunal properly directed having heard Mr Connor could not have reached that conclusion.Moreover, in our view they could also reasonably have found that in November 1990 the Applicant, Mr Connor, was not entitled to rely on the alleged breach of contract in failing to provide a benefits and finance advice service as a ground for resignation without any prior indication to the company. It is true that the last sentence in the passage from Lord Denning's judgment, that the employee must make up his mind soon after the conduct of which he complains, on its face seems to envisage some particular act of misconduct by the employer, but its sense and rationale seem to us to be equally applicable to the situation where there is a continuing neglect by the employer to fulfil some part of the contract, as to which the employee accepts and recognises that some reasonable and fairly significant time should be allowed for the employer to comply because of difficulties in doing so.In the present case the difficulty relied upon by the employer concerned the impact of the Financial Services Act and it seems to us in that situation that the reasoning of Western Excavating (ECC) Ltd v Sharp applies in this way, that although there is no explicit and obvious misconduct or breach on the part of the employer at a specific moment, to which the employee must promptly react, nevertheless the employee is not acting properly and reasonably if he resigns at a time when he thinks the employer has had long enough to comply, but without any prior indication to the employer that that is the view he has taken. That is the more so on the history of this particular case because Mr Connor had instituted a grievance procedure in February 1989 in which one of his grounds of complaint was the very matter of failing to set up the benefits service. It is not clear from the documents how that aspect of his grievance, as it were, was disposed of at that time because the minute of the relevant committee of 22 February 1989, having heard as part of the report of the Chief Community Services Officer that:
"The employee concerned [Mr Connor] would start to have contact with the public and give general welfare advice as soon as the new money advice clinics were established."
(the delay in doing that, as I have said, was attributed to the impact of the Financial Services Act) and the committee having had that as part of the report having resolved:

(1) The employee be regarded as having genuine grounds for grievance."

They then went on to resolve that specific action should be taken in regard not to that part of Mr Connor's grievance but to another quite different part about a qualification bar on his grades, which was also one of the four matters referred to in the letter following his resignation but which is not one of the matters which he now pursues. Therefore the matter had been raised and ventilated early in 1989 and no further indication had been given by Mr Connor that that had become an immediate ground of complaint such as he felt would require him to resign unless the matter was dealt with. We consider that a reasonable Tribunal properly directed could, therefore, have found that that was not a basis for constructive dismissal at the time that Mr Connor resigned.However, although that, in our view, is the correct approach to what one might call the "perversity the substantive decision" ground of appeal, if we are wrong about that and the right test is the one posed in the notice of appeal that the Tribunal were perverse in the same sense in the specific finding that there had not been any breach of contract, then equally on that test we are satisfied that a reasonable Tribunal properly directed could have reached the finding which the Tribunal made that there was no breach of contract, and the basis on which they could have done that seems to us to be in general the acquiescence, to which I have already referred, in Mr Connor's failure from the date of the disposal of his grievance in February 1989 to raise the matter again and his acquiescence therefore in effectively a change in his job description.More specifically, there is a sentence in the letter to which the Tribunal referred in the paragraph which I read and which plainly they considered (at pp 42-50 of respondents' bundle). It is a letter written not long after the disposal of the grievance procedure. It is a long letter dated 23 March 1989, but the passage which is particularly germane to the present point is one in which Mr Connor, writing to a friend of his - a copy of the letter was then sent to the personnel department - says, after he has rehearsed his frustration about the failure to comply with his job description in this respect:
"I would be happy to resign, but doubt if I would get a reference, and going for constructive dismissal would take far too long, after all, I have a mortgage to pay and a child to keep."
It seems to us that even on the narrow test of the reasonableness of the finding of breach of contract, the Industrial Tribunal could reasonably have found, as they did find, that that passage as well as general absence of any further raising of the issue showed his acquiescence in that state of affairs. We therefore come to the conclusion that the first ground of appeal is not made out.The second ground of appeal relates not to the substance of the Tribunal's decision but to their making it at the stage of the proceedings when they did, that is at the conclusion of the Applicant's case without calling upon the Respondent, because there was no case for the Respondent to answer. As to that, the Tribunal in paragraph 4 of their Reasons say:
"We have also taken on board the remarks made by Phillips J in the case of Ridley -v- GEC Machines Ltd [1978] ITR 195 ................... "There may be cases put forward which are so obviously hopeless that it would a complete waste of time to call upon the respondents to call evidence, and thus prolong the proceedings for what may be a long time at very considerable expense. So, yes, there may be exceptional cases but ordinarily at all events it is better to hear what everybody has to say." We take the view that this comes within the category of "obviously hopeless", and we dismiss the claim on the basis that there was no constructive dismissal here."
Before us, Miss Tagliavini referred us to that extract from Ridley v GEC Machines Ltd which was cited in the Tribunal's reasons and also to two other cases. Firstly, Coral Squash Clubs Ltd v Matthews and Matthews [1979] IRLR 390, in which the headnote summarising the decision of the Industrial Tribunal on this point reads:
"Though normally it is of great importance to hear both sides, the EAT has never said that an Industrial Tribunal cannot stop a case at the end of the case of the party whose evidence and submissions come first. It is a power which must be exercised with caution but if the Tribunal is satisfied that the party on whom the onus lies and who goes first has clearly failed in law or in fact to establish what he set out to establish, then that Tribunal is entitled to decide the case at that stage."
That appeal went off on a different point, but the Employment Appeal Tribunal held in that case that had it not been allowed on that other point then the Industrial Tribunal would have been justified in taking the line that they did in deciding the case without having heard the evidence of the employees - it being a case where the onus lay on the respondent employers and the employers' case had therefore been put first. That in our view repeats and reinforces both sides of what was said in Ridley v GEC Machines Ltd , first, that it is an exceptional course to take but secondly, that it is a course that is open to an Industrial Tribunal in appropriate cases.The other case to which Miss Tagliavini directed us was Golden Cross Hire Co Ltd v Lovell [1979] IRLR 267, another case in this Appeal Tribunal. We were not referred to any specific passage but that was a case, unlike Ridley v GEC Machines Ltd and Coral Squash Club , where the Appeal Tribunal did in fact hold that the Industrial Tribunal had misdirected itself in reaching its finding of unfair dismissal after hearing only the company's evidence. However, the Appeal Tribunal reached that conclusion, in our understanding, as a second and subsidiary limb to its finding that the Industrial Tribunal had erred in law on the substantive point. That is not only apparent from the headnote; it is, in our view, even clearer when one looks at the judgment in which, having decided that the Industrial Tribunal's decision was so plainly wrong that it ought not to be allowed to stand on the substantive issue, the judgment goes on:
"...... that part of their misdirection may have stemmed from their decision to decide upon the question of unfairness without hearing the whole of the evidence on both sides."
As we understand it, that decision is, in that sense, plainly subsidiary to the conclusion which the Appeal Tribunal had reached on the substantive issue.In this case it is quite impossible to say that the Industrial Tribunal misdirected themselves as to the right approach on this point because, in our view, by referring to and applying the test as expressed by Phillips J in Ridley v GEC Machines Ltd , they plainly did direct themselves correctly on the law. Having thus directed themselves, we do not consider that the decision was one which a reasonable Tribunal could not have reached. The factual matters behind that are, of course, substantially the same as those which we have already canvassed when dealing with the first ground of appeal. For those reasons we dismiss this appeal.