Wilks v American Express Europe Ltd [1993] UKEAT 742_92_0507

EAT
Wilks v American Express Europe Ltd
[1993] UKEAT 742_92_0507 · 1993-07-05
MR JUSTICE WOOD (PRESIDENT): By a decision after a hearing in August 1992 an Industrial Tribunal, sitting at Brighton under the Chairmanship of Mr Starkey, rejected an application by Mrs Wilks in which she had alleged that she had been unfairly dismissed by her employers American Express Europe Limited. She was represented by Mr Parfitt-King of L & P Associates. The Company was represented by Miss Romney of Counsel.The Tribunal held that the applicant had resigned, that she had not been dismissed, and therefore it had no jurisdiction. Mrs Wilks appeals. She is again, represented before us, by Mr Parfitt-King.The history of this matter is set out admirably, and at some length, in the decision of the Industrial Tribunal from paragraph 11 onwards. Mrs Wilks had worked for the Company for some few years; she had worked in the Returns Unit where she had been very happy. In April 1991 that Unit was discontinued, the section leader had left. Mrs Wilks and her only other colleague went to the Company Credit Department. Prior to going there, in fact, Mrs Wilks had worked in what was referred to as a Small Company Unit. But after the Returns Unit was temporarily discontinued, she was assigned to the Corporate Unit. She had no previous experience of the work in that Unit and would have much preferred to go back to the Small Company Unit. However, the reason that she could not do so was accepted by the Tribunal and no criticism was made of the Company and the way that her career and her work had been managed. In fact the move to the Corporate Unit lasted only some 3 months, because the Returns Unit was re-established, that was in the July of 1991. On its re-establishment it had the responsibility for corporate matters only, not for small companies as well, as it had done previously.A Miss Roskilly was the new section leader of the re-established Returns Unit and Mrs Wilks was the only other person in that Unit. Indeed, Miss Roskilly had asked for Mrs Wilks to return to join her, that was presumably because of her previous experience.There was a move of the whole Company Credit Department out from Brighton to Burgess Hill, that is some ten miles away. It made travelling more difficult but nevertheless Mrs Wilks did not object to going there. She was not unhappy but she did not revel in the idea, however, she did not refuse to move. After about two weeks Miss Roskilly was away for the whole of the month of August as she was temporarily seconded to other premises. However, she did keep in regular touch by telephone, through notes, and she was often there at the week-ends when she left instructions for Mrs Wilks.The temporary secondment of Miss Roskilly ended at the beginning of September. By that time Mrs Wilks was away because she was sick; she returned on Monday 23rd September. Thus, it is clear from those findings of facts that Miss Roskilly had an opportunity of looking at the work in the Department, from which she had been absent, during the absence of Mrs Wilks away sick.Within a few days of the return of Mrs Wilks, that is a few days after the 23rd September, it is thought to be the 26th, there was a meeting. Miss Roskilly had decided that the work done by Mrs Wilks was below the standard which should be expected of her, and that was the subject of the discussion. There was, therefore, a meeting on the 26th September. That meeting was attended by Mr Gillies, Mrs Wilks and Miss Roskilly. Much turns on what happened at that meeting and how that meeting is to be understood. One thing is quite clear, that the Tribunal were critical of the internal management in connection with the notes of that meeting, there had been a note which had been subsequently altered. They also felt that if it were to be considered a disciplinary meeting, then the Company had not complied with its own procedures. The Company denied that it was a disciplinary meeting. However, in paragraph 19 the Tribunal make a specific finding they say:
"If the meeting towards the end of September was a disciplinary hearing, it was not regularly conducted and any purported warning could be regarded as being invalid."
Pausing there for the moment in the course of the history of these facts, the Industrial Members sitting with me are critical, as were the Industrial Tribunal, of this Company. It seems that there is no evidence, nor was there any evidence, that there was a proper contract of employment. Nor was there any evidence that the handbook, which refers specifically in its introduction to the fact that it forms part of the terms upon which an employee is employed, there is no evidence that copies of that were handed to the employees. Thirdly, as already commented by the Industrial Tribunal, if this was a disciplinary hearing then there was a sad failure to comply with the procedures which were set down.However, after the 26th September, the following Monday, Mrs Wilks went to see her doctor. It is clear that there were a number of medical certificates before the Industrial Tribunal, and that for some time Mrs Wilks had not enjoyed the best of health; in fact she was clearly suffering from acute stress which was thought by her doctor to be work-related. She saw the doctor and within a few days, on the 1st October 1991, she wrote to Mr Gillies:

"Dear Alan

I am writing to advise that I wish to terminate my employment with American Express one month from today, 1.10.91.

Yours sincerely

Brenda Wilks"

The issue which loomed large was how was the meeting of the 26th September to be understood? The Tribunal deal with this matter in paragraphs 22, 23 and 24 of its decision because it is connection with this meeting that much of the submission and the argument presented is based. In paragraph 22 the Tribunal say:
"It must be accepted that Mrs Wilks felt upset and stressed, and probably appeared distressed, when she her doctor at the end of September following the meeting the previous week; and it was not suggested that she consulted her doctor for other than reasons which were good and sufficient for her. But what we have to decide is whether her resignation constituted constructive dismissal by reason of a fundamental breach of the employment contract by her employers.
We uphold the submission of Counsel on behalf of the respondent company that it cannot be a breach of contract for an employer to draw attention to what is seen or regarded as unsatisfactory performance by an employee.The irregularities about which we heard with regard to the interview in the week before Mrs Wilks resigned are regrettable, if not reprehensible, but we find were not sufficiently fundamental or serious to entitle the applicant to resign and complain of unfair dismissal. We also find that what happened at or about that meeting in September was not a last straw situation."Pausing there, those findings of fact must be set against the way in which the case was being put on behalf of Mrs Wilks. Mrs Wilks clearly went to consult Mr Parfitt-King and we imagine, because of the length and the clarity of the allegations in the Originating Application they were probably drafted with his help. The particulars of her claim cover some three or four pages and it seems to us on reading them that there is a complaint stretching right back to the beginning of employment, or virtually so, that her treatment was such throughout that it was unreasonable and it culminated in the September meeting and the fact that she decided to resign. But it also does raise the question of the procedure at that particular meeting.When one looks at the two notes which were before the Industrial Tribunal there is a variation between them. However, the Tribunal had the opportunity of considering those documents, about which they were critical; of seeing and hearing Mrs Wilks, and of seeing and hearing other witnesses before the Tribunal, which included Mr Gillies, Miss Ottaway and Miss Roskilly. The Tribunal decided that, first of all, the conduct stretching over the period of time caused the "last straw" situation, the drip, drip, drip, of the way she was treated, was not a valid criticism and indeed that was not pressed before us. But also that this hearing on the 26th was not a disciplinary hearing, it was a hearing to look into the unsatisfactory performance of Mrs Wilks and however inept it may have been phrased; however inept it may have been in the way it was conducted, of which they are duly, and in our judgment, rightly, critical, nevertheless it was not a disciplinary meeting. That, in fact, is fundamental to the decision and it was therefore a problem for Mr Parfitt-King to say that there was an error of law.The Tribunal in reaching its decision were assisted also in what has been called an "exit interview". Having written her letter of resignation and suggesting that she should have one months notice, the Company agreed with her that she should go at once. By so doing, of course, they avoided paying her sick pay, they also avoided paying her one months wages in lieu of serving her notice. Here again, the Industrial Members of this Tribunal are somewhat surprised because the normal practice would have been to pay for that month in lieu of working out the notice and also possibly to pay the sick pay. We do not know whether it is a practice of this Company, but if it is a practice of this Company, they must not be surprised if in the future they are criticised for that practice. However, the "exit interview" was conducted between Mrs Wilks and Mr Gillies and Ms Croud. It is an interesting document because it indicates any comments, criticisms, as to why a person has left.The first question is: What were the major factors that attracted you to American Express?

Then following that -

Why are you leaving American Express? The box "Resignation" is ticked.

Then paragraph 2 says -

Please comment on: The job content, that is criticised.

The next heading is -

The working conditions and equipment: Very nice, good offices and facilities. Didn't like the travelling as it made for a very long day.The quality and supervision of management: Manager is unapproachable and not very friendly, didn't seem involved. Team leader was nice to Brenda when she first took over but her attitude changed when she was off sick.Job Training - Career developments: training on returns was very good and patient. Current team leaders training not very good.Operating efficiency and work organisation: she comments on that.She says she would not consider returning to American Express and then she makes suggestions saying that there should be an increase in staff. Then at the end there is a large space left for:If you resigned please explain fully what prompted you to leave and why:and there she set out at some length what it was all about and she felt that she was never going to succeed and they did not want her to succeed. She felt also that after the meeting on the 26th she had no alternative but to resign because her performance was going to be reviewed in two weeks and she felt that there was no assurance that she would be able to continue working.Mr Parfitt-King says that the meeting to which she refers saying "she had no alternative but to resign" is criticism of the fundamental breach of the procedure. It may be that the Tribunal looked at it in a different way. If so, we can quite understand that, because it does not seem to us that until the matter came to the Tribunal that there is any clear indication that the real basic criticism was a fundamental breach of procedure, at the meeting of the 26th September, which gave Mrs Wilks a right to repudiate her contract of employment.The locus classicus for the principle to be applied, and it was implied by this Industrial Tribunal, is Western Excavating ECC Ltd v. Sharp [1978] ICR 221 , that is the well known case in which the Court of Appeal had to decide upon the basis of an allegation of fundamental breach and Lord Denning deals with the matter at page 225H when he looks at the contract test and the unreasonable test of the issue of constructive dismissal. There it indicates that the breach must be significant and going to the root of the contract or indicates an intention no longer to be bound by one or more of the essential terms of the contract.There may be cases, and there have been cases, somewhat extreme cases, where a breach of procedure can amount to a fundamental breach. The Industrial Tribunal here, no doubt, had them well in mind. The suggestion is that there were six different ways in which the procedure was breached: that there was no notice of the meeting; no opportunity to prepare for it; not advised that she could have a representative; no representative present and no copies of the passages in the handbook were handed to her and no record of the meeting supplied to her. Well if this has been a disciplinary meeting then some of those would have been highly material matters but the Tribunal looked at it, examined it, and as findings of fact found, that they accepted Miss Romney's submission and that it was not a disciplinary meeting and that it was merely called to look into the performance of the Applicant. The Tribunal found that as a fact, in our judgment, they were entitled so to find. They did not misapply the law. They were extremely critical of American Express, as are we, but nevertheless, there is no basis here upon which this appeal can succeed and it must be dismissed.