Brown v Ministry Of Defence [1992] UKEAT 52_91_2306

EAT

Brown v Ministry Of Defence

[1992] UKEAT 52_91_2306 · 1992-06-23

JUDGE HARGROVE: This is an appeal from a decision of an Industrial Tribunal sitting at Southampton on 7th, 14th, 21st and 27th November 1990. The Appellant was employed by the Respondent from 7th June 1971 until 23rd March 1990. His latest job description dated 11th July 1988 describes him as a boatman and that he is employed at the "hard" at Poole in Dorset. The attack on the decision of the Industrial Tribunal is upon the basis -(a) that in considering the reasons for the Appellant's resignation the Tribunal considered only the question whether there was a breach of contract when, as hereinafter appears, the Respondent required the Appellant to cease his work as a boatman and take up work first, as a painter and then eventually working in the stores. This meant that the Tribunal was excluding from consideration "the last straw" and the breach of general duty of trust aspects of constructive dismissal.

(b) that the Tribunal was wrong in law and that the decision was perverse in deciding that the Respondent was entitled to change the workplace and nature of work under paragraphs 1418, 1420 and 0286 of Manual 9 of the Respondents regulations.

There could hardly have been a more difficult case for any Tribunal. The Appellant's case (the Appellant acting in person) was presented in what is described as a confusing and rambling manner. Further the Manual which purported to set out the rules under which the Respondent was operating can at best be described as poorly drafted and at times verged upon the absurd. The reasons which are detailed and run to some 86 paragraphs must represent prodigious labour on the part of the Chairman.

Without detailing the extensive history which is set out in the findings of the Industrial Tribunal the following appear to be the major events.

In April 1989 some dissatisfaction was being expressed about the manner in which the Appellant was maintaining, in his capacity as boatman, certain sailing vessels which were kept by the Respondent for the benefit of leisure activities by servicemen and their families. Major McDowall, who learned of the complaints, consulted with a Mrs Walkley as to the appropriate disciplinary proceedings which he should follow. A decision was made to follow the procedures which are set out in paragraphs 1406 to 1441 of Manual 9. From this decision a host of problems arose. The chapter is headed "Premature retirement on grounds of inefficiency". The rules are aimed at a number of situations (eg ill-health) whereby the employee's ability to carry out his task has been undermined. They are not disciplinary proceedings and in the ultimate event such procedures could lead to a hearing before a Departmental Retirement Board. Indeed paragraph 1435 states

"Throughout the board's proceedings care must be taken to avoid any impression that the board's consideration of the case is in the nature of a disciplinary hearing."

Major McDowall decided to give an informal warning under paragraph 1408 and the Appellant was summoned to appear before Major McDowall. No intimation was given to him that he was to be disciplined, he was not shown any documents setting out the matters he had to face and at the end of the discussion he was told that he had a period of three months to get the boats in order after which time there would be an independent examination. No written notice of a warning was served upon the Appellant, but one has some sympathy with the Respondent on this matter for though 1406 requires the employee to be given a separate written confirmation of the informal warning, paragraph 1410 states that it is only formal warnings which need to be so transmitted to the employee. Major McDowall recorded the informal warning incorrectly as a formal warning in the file.

On 17th January 1990 Mr Wilson, an independent expert, inspected the dinghies. There had been a storm and some of the dinghies had been damaged as a result. A full report was not provided at that time. The reception by Major McDowall of information allegedly provided by Mr Wilson was on a hearsay basis and was very inaccurate. This resulted in the writing of a letter of 25th January 1990 to the Appellant by Major McDowall indicating that a formal warning had been given. This was incorrect, and it also speaks of the necessity (unless performance could be brought to an acceptable level) of dismissing the Appellant for unsatisfactory work performance. No mention was made that this was not disciplinary proceedings. No mention is made then or at any future time that premature retirement was being contemplated. The letter continues to assert that the inspection report highlights the fact that the dinghies had been allowed to deteriorate so that it proved necessary to condemn all the boats. At that stage Major McDowall had not got any such report and when it arrived it did not bear out any such conclusion. It was also alleged that the Appellant had failed to mend damaged laser masts. It was doubtful whether there was any liability on the Appellant to do so. He was therefore formally warned that he could expect a further trial period and that if a suitable alternative job became available, if necessary to a lower grade or pay band, he would be offered that under a different supervisor. He was then required to carry out work as a painter at a different location. He went to work in the paint shop from 26th January 1990 to 10th February 1990 when he went on sick leave. When he returned to work he reported to the "hard" and refused to go to the paint shop as directed, and by a letter of 13th March 1990 Mrs Walkley wrote charging the Appellant with a disciplinary offence allegedly under Manual 9, paragraphs 0286 and 1418 in that he failed to obey a reasonable order on 6th, 7th, 8th and 9th March. Again, the misapprehension about what powers existed under paragraphs 1407 to 1441 is exemplified by that letter. On 16th March 1990 there was a hearing of an appeal before Colonel Minords against the decision encapsulated in the letter of 25th January 1990. Colonel Minords did not make an immediate decision but the Appellant was instructed to report to work at the stores. On 19th March 1990 the Appellant handed to Mrs Walkley a letter which is undated and which reads -

"I wish to give a week's notice and end my employment at Royal Marines Base, Poole, Dorset as I have lost the job I was engaged in for 18 years on what I consider to be inconclusive evidence"

The Tribunal's Reasons set out all these defects in the procedure adopted by the Respondents and the comment is made in paragraph 77 that following the meeting on 25th January 1990

"Had the applicant been dismissed at this stage we would have little hesitation in saying that the applicant's dismissal would have been unfair. We understand why the applicant felt he had been badly treated and felt he had been "condemned" (if we may use that word) on insufficient evidence."

In paragraph 69 the Tribunal stated,

"In his submissions to us he did not allege that this was the "last straw", nor did he allege any breach of the duty of trust or confidence; it was merely the fact that he was being asked to do a job which was outside what he saw as within his job description."

This was echoed in paragraph 84

"The applicant has not sought to argue that the order of Colonel Minords was the last straw, but rather that he saw this order, as indeed the earlier orders, as ones which he was not bound to observe. It is clear to us from the applicant's evidence, and from his submission, that his resignation was because he felt that the respondents could not give him the orders which they did and they could not move him from the job as boatman which he had held for 18 years. For the reasons we have given this view of the applicant is erroneous and we cannot find any breach of contract on the part of the respondents which would justify the applicant in his resignation."

However, the complaint he was making was considerably wider than that. He was objecting that he had had two moves to which he had objected to the paint shop and to the battery store. When he had not reported for work his money had been stopped, the activities of Major McDowall and Mrs Walkley were such that they are described in paragraph 77 as being grounds for the Appellant feeling that he had been condemned on insufficient evidence. Moreover he had discovered that he had lost his job as boatman, not in the usual manner but from a third party in casual conversation.

In our view the Tribunal ought to have considered the question of law arising from the other arms of the constructive dismissal criteria. It is objected that at this stage these matters should not be raised because they represent fresh points of law (see Kumchyk v. Derbyshire City Council

[1978] ICR 1116

). However, we are of the opinion that these are not fresh points of law because they had already been raised upon the matters before the Tribunal. The fact that the unrepresented appellant was unable to marshall them in the order which any competent lawyer would have done may have deprived the points of specific expression but not of their essential validity.

Our finding on that aspect of the case is sufficient to dispose of the appeal. However, out of abundant caution we turn to the question of whether the Tribunal erred in law in holding that there was power under paragraphs 1418 and 1420 to remove the Appellant from his job as a boatman and to place him in the paint shop and further that there was similar power under paragraph 0286. The Appellant's point on paragraphs 1418 and 1420 is that because of the flaws, which were and are admitted to be substantial, in the procedure, the Respondent never achieved the position of being entitled so to act. The Respondent replies that even if there were defects, the power still exists even in the face of the fact that the Appellant what is represented to him to be disciplinary proceedings when in fact premature retirement is the objective of the procedure, an objective which it seem was never communicated to him. Where there is a failure by employers to perform the contract of employment by properly observing their own disciplinary proceedings to a substantial extent the action taken as a result against an employee can amount to repudiation of a contract entitling the employee to treat the contract as at an end, see The Post Office v. Strange

[1981] IRLR 515

On paragraph 0286 the Appellant's point is that while it affects the employer's right to move the employee to another place of work within the establishment it does not permit the employer to change the actual job of the employee. We have been referred in particular to Woods v. W M Car Services Ltd

[1981] ICR 666

at 673

"In our judgment, although the point appears to have been conceded in argument, this is a decision of the Court of Appeal binding on us, that the questions whether there has been a breach of contract and, if so, whether such breach is fundamental are both mixed questions of fact and law so that the appeal tribunal cannot substitute its decision for that of the industrial if there was evidence which would justify the industrial tribunal's decision. It seems that the approach must be that laid down in Edwards v. Bairstow [1956] AC 14 .

We do not find it easy to apply that approach to this case. The terms of the contract and the other primary facts having been found by the industrial tribunal, the question seems to be whether it has been shown that there was no evidence to support the finding of fact and whether the industrial tribunal directed their minds to the correct principles of law. The findings of fact seem to us to be unimpeachable, save possible to the extent that the industrial tribunal overlooked the evidence that the employers were "gunning" for the employee. The industrial tribunal in their reasons directed their attention to the relevant authorities and set about applying the principles therein contained to the facts before them. They have reached a conclusion which, although we do not agree with it, cannot be termed impossible or perverse in the sense that no reasonable man could have reached that conclusion. If this is the right approach, and it is a point on which we would value further guidance from the Court of Appeal, it seems to us inescapable that we have no jurisdiction to alter the industrial tribunal's decision even though we consider it to be wrong."

In our view there is no right in law under paragraphs 1418 or 1420 in the circumstances which existed to seek to move the Appellant to another job as they did. That right would only have arisen if there had been substantial compliance with the procedure. It was totally flawed upon the findings of fact of the Tribunal and in those premises no Tribunal which had properly directed itself as to that aspect of the law could have reached the conclusions which the Tribunal did. Similarly, the terms of paragraph 0286 do not permit the Respondent to change the nature of the employee's work in the fundamental fashion which they sought to do in this case. There is only one interpretation of that paragraph that they were entitled to change the location and not the nature of the employment. Again, any Tribunal which had properly directed itself upon the law could not possibly have taken the view which this Tribunal did.

It has been urged upon us that we should substitute our own findings for those of the Tribunal. It is now necessary for the Tribunal to turn its mind to all three arms of the constructive dismissal criteria and to make a finding thereon. Much though we regret it, we have decided that this is a case which must be reheard before a fresh Tribunal.

This is a unanimous decision.