Triton Oliver (Special Products) Ltd v Bromage [1993] UKEAT 709_91_0212

EAT
Triton Oliver (Special Products) Ltd v Bromage
[1993] UKEAT 709_91_0212 · 1993-12-02
MR JUSTICE TUCKER: This is an appeal by employers from a decision of the Industrial Tribunal sitting at Birmingham on the 2nd September 1991. It was a majority decision whereby the lay, or industrial members, decided that the Applicant, who is the Respondent to this appeal, was constructively dismissed from his employment and that his dismissal was unfair.The Respondent is now aged 45 and he lives with his wife at Richards Castle in Shropshire. He had, since 1972, been employed by the Appellants, latterly as a Quality Manager.The Appellants have two separate factories, one at Bridgnorth the other at Cradley Heath in Worcestershire. The Respondent operated between the two. He was an extremely competent employee. He had for fifteen years been provided by the Appellants with a motor car. Since 1989 that had been a Japanese car of the range rover type, a "Mitsubishi Shogun", it is a large, powerful and in some eyes a prestigious vehicle. As to the reasons why such a car was provided to the Respondent and as to the use which he was entitled to make of it we are bound by the facts found by the Tribunal. This is not a re-hearing and we are not entitled, at any rate for the purposes of this appeal, to substitute our own view of the facts or to receive fresh evidence.The Tribunal found that the Respondent asked to be provided with a "Shogun" because he had to move items of equipment and products between the factories and also because it would assist him in using his caravan. The Tribunal went on to find that the provision of a motor vehicle became an addition to the Respondent's contract of employment. It is unfortunate that there were no written terms about its use. The Tribunal found that the vehicle was to be used both for business and personal use. In relation to the latter it could be used by the Respondent's wife who was insured for the purpose. In addition it was agreed that the Respondent was entitled to fill the car with petrol on the company's account held at a Bridgnorth garage. The Tribunal found that fuel supplied by the Appellants was intended for business use. Any fuel remaining in the tank could be used for private purposes but thereafter the Respondent had to supply and pay for fuel for private mileage. Thus the provision of a car formed a useful and valuable part of the Respondent's remuneration.Unfortunately, on the 9th September 1990, when the Respondent was still a young man, he suffered a heart attack. He was in hospital for six days and he convalesced at home and in Cornwall thereafter. There was no question of his employment being terminated on that account. He retained the "Shogun" car, though he himself was no longer able to drive it. His wife continued to drive it and to fill it with petrol which was booked to the Appellants' account. The car was being driven only for personal use. When the Appellants learned that the petrol account was being used in this way they objected to it. Their Mr Kitchen telephoned the Respondent on the 1st October and told him that the petrol account was being stopped. The Respondent told the Tribunal that he felt very hurt since no explanation was given but he admitted that he did not make any comment at that time. The Tribunal found that the withdrawal of the petrol account was an action taken by the Appellants which was, in the circumstances, reasonable and justified. They found that that action did not amount to a breach of contract.On the 29th October, the Appellants' Mr Haley met the Respondent at his home. The Respondent produced a note from his doctor and spoke of seeking early retirement. The next thing that happened, and it is a matter of importance, was that on the 2nd November, Mr Haley telephoned and spoke to Mrs Bromage. The upshot was that he was coming to collect the car. Forty-five minutes later he arrived with a Mr Cookson. He collected the keys and he drove the car away. The Respondent had a long discussion with Mr Cookson about what had happened. He told the Tribunal that he was very upset but he admitted that he did not discuss the removal of the car with Mr Haley or raise any objection. It seems that the Appellants were not aware that the Respondent and his family did not have another car to use. The Respondent felt that he had been disgracefully treated and it is clear from his demeanour before us that he still holds that view. He consulted ACAS. He then sought legal advice. He had by now taken the view that he could no longer work for the Appellants.On the 8th November solicitors consulted by the Respondent wrote to the Appellants in these terms:
"We are instructed by Mr Bromage in connection with his employment with your company.
As you are aware pursuant to the terms of our client's employment he is entitled to a car and also the company agreed to pay his petrol expenses.We are instructed that on 2nd November you collected the car from our client's premises and have informed him that you will no longer be responsible for his petrol account. By so doing you are in flagrant breach of our client's contract of employment and our client is currently considering whether or not the said breach amounts to a constructive dismissal. We will write to you further on this point.In the meantime , in view of our client's recent heart attack, we would be grateful if you could please provide us with full details of the group permanent health scheme of which our client is a member. We look forward to hearing from you by return."The Appellants provided details of BUPA company care. The solicitors wrote again on the 12th November asking them to confirm that the permanent health insurance scheme was still in place. They asked again on the 15th November for details of the pension scheme and, in particular, of the Group Permanent Health Scheme. To their surprise, they were informed by the Appellants by fax on 16th November that the Group Permanent Health Scheme had been closed in April 1990.At no time so far had the Respondent or his solicitors notified the Appellants that there had been a repudiatory breach of his contract of employment which he accepted. Then before any such acceptance was communicated to the Appellants their Directors met, early on the 19th November. They took their own decision to supply him with a small car with a petrol allowance of £10 per week. The Tribunal found, that the following day, that is the 20th November that information was conveyed to the Respondent's solicitors in a telephone call made by Mr Haley. And the Respondent himself expressly confirmed to us today that his solicitors wrote their letter of the 20th November 1990 after hearing of the offer of that car. The letter to which we refer is in these terms:
"We are in receipt of your fax of 16th November and have advised our client of the contents. As you are no doubt aware the termination of the Group Permanent Health Scheme in April 1990 comes as a complete surprise to our client as he was neither consulted or even informed that this had taken place. You will appreciate the importance our client attached to this scheme in view of his recent illness.
As we informed you in our letter of 8th November our client considers that the removal of the car and petrol benefit by your company amounts to a breach of his contract of employment; however now that he is aware that the Group Health Scheme has also been withdrawn without his knowledge, again in breach of your contract with him, our client finds his position untenable.Accordingly, we write to advise you that in view of the flagrant breaches referred to above our client no longer considers himself bound by his contract with you and considers himself to be constructively dismissed."In our opinion the Appellants behaved precipitously and without due courtesy to a valued employee when they re-possessed the car in the circumstances which we have outlined. It may be that the Respondent would have been entitled to regard that as a repudiatory breach of his contract of employment and had he accepted it as such, and had he then and there notified the Appellants of that decision, he might have entitled himself to an award of damages. But that is not what happened. The most that the Appellants were told was that the Respondent was considering whether or not the breach amounted to a constructive dismissal. Before the Respondent is entitled to claim that he was constructively dismissed he has to show that he accepted and acted upon the repudiatory breach. How then did it come about that the majority of the Industrial Tribunal reached a contrary conclusion? At paragraph 22 of the decision it appears:
"The industrial members have considered the offer made to provide him [the Respondent] with another motor car. This was made prior to the letter of resignation being written and it was an attempt by the respondents to remedy the situation. However, they agree with the submission of Mr O'Donovan [who then appeared for the Respondent] that the action in removing the car had been a repudiatory breach which the applicant had already accepted as giving rise to constructive dismissal."
But the Respondent had not already accepted the removal of the car as being a repudiatory breach and it seems regrettably that the members were wrong to have allowed the Respondent's advocate to persuade them to that view. Their finding was a perverse finding, which was unsupported by and in conflict with the evidence. Moreover, we take the view that the majority were wrong in not accepting that it was the removal of the permanent health insurance benefit which was the primary cause of the Respondent's desire and decision to resign when it appears from the letter of 20th November that it was the other way round. Our views as to the correctness of the position are, it seems to us, borne out by the details of the Respondent's complaint as set out in his Originating Application under paragraph 10 where he refers to his employment and the receipt of a car and petrol account. He says this:
"The use of the motor car was a benefit that would have been of considerable assistance to me during my convalescent period. By early November 1990 the Respondents had removed from me both the benefit of the petrol account and the car itself. Later in November 1990 it came to my attention that the income protection benefits of the Respondents' Permanent Health Scheme had been withdrawn without notification to me.
It is my view that I have been treated in more than merely an insensitive and uncaring manner. By reason of the way in which I have been treated I resigned from my employment on or about 20th November 1990. I contend that the circumstances of my departure constitute a constructive dismissal."And so there the Respondent himself was contending that he did not resign until on or about the 20th November, that is to say, the date of his solicitor's letter and this has been acknowledged to be after receipt by him of information about the provision of an alternative car.This is not the kind of unfair dismissal case with which this Employment Appeal Tribunal is usually concerned. This is a case where the contractual position between the parties was all important. The Chairman of the Industrial Tribunal clearly appreciated that this was so whereas the majority of his members appear not to have done so or to have allowed themselves to be overpersuaded.For the reasons that we have set out we are of the view that the majority decision was flawed and that it cannot stand. This Respondent had been treated, as we have observed, less than courteously but before his acceptance of any repudiatory breach was notified to his employers his employers did their best to remedy such discourtesy by their offer of a motor car to him. It was no longer open him to accept any repudiatory breach at the stage at which he purported to do so. Accordingly we have to quash the decision reached by the Industrial Tribunal. The application is dismissed and this appeal succeeds accordingly.