Rajani v S Dory Ltd [1994] UKEAT 24_93_2906

EAT
Rajani v S Dory Ltd
[1994] UKEAT 24_93_2906 · 1994-06-29
HIS HONOUR JUDGE LEVY QC: Miss Nazmin Rajani commenced employment with S Dory Limited on the 19th September 1988. That employment ended on 28th February 1992 but Miss Rajani complained that there was an incident on the 20th February 1992 which was the final straw of a succession of complaints she had made in the course of her employment which led her to maintain before an Industrial Tribunal that she was constructively dismissed.She lodged a complaint to the Industrial Tribunal on the 14th April 1992.The Respondents put in a Notice of Appearance on the 5th May 1992.There was a hearing, we understand it was a long day hearing, on the 2nd November 1992, at the end of which the London (North) Tribunal decided that the Applicant had not been unfairly dismissed. The decision was sent to the parties very soon after on the 12th November 1992 and from that decision the Appellant has appealed.Mr Ciumei, represented her here, as he did below. His grounds of appeal, as developed before us today, really rested on two planks. First of all he said that the terms of the Appellant's employment included a salary of £9,000 and a right to a commission which was dependent on turnover. After a period of time, the eligibility to commission was removed. The Applicant received no further commission and she had received only one pay increase between the time her employment started and the time it ended. The pay increase seems to us to be neither here nor there but the point that Mr Ciumei makes about the eligibility to commission having been changed seems to us possibly to be a valid one. In that connection Mr Ciumei has referred us to the judgment of the Master of the Rolls, Lord Denning in Western Excavating (ECC) Ltd v. Sharp [1978] ICR 221 and in particularly the passage at page 226 which reads 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."
and Mr Ciumei has further drawn our attention to a development of this case in the reported decision of this Tribunal in Hogg v. Dover College [1990] ICR 39. He cites in particular the passage at the foot of page 42 when Garland J. giving the decision of this Tribunal said:
"The question then arises whether he accepted the employers' conduct as a repudiation of their obligations to him or whether it has to be said that by his conduct there was, in the event, no acceptance or indeed, an affirmation. Of course, one asks: affirmation of what? It could only be of a totally different contract."
What Mr Ciumei submits on behalf of the Appellant is that the failure to pay bonuses one quarter after another was a repeated breach of contract by the Respondents and because of her repeated complaints it cannot be said that the Appellant affirmed the breaches. He complains that the facts as found by the Tribunal and the law, and the directions of law which the Tribunal gave to itself do not deal with whether there was or could have been affirmation adequately or at all.There is a further point on which Mr Ciumei complains. In paragraph 4 of the Reasons his submissions are set out. Paragraph 4 of the Full Reasons reads as follows:
"For the Applicant, Mr Ciumei maintained that there had been a breach of the implied term of trust and confidence in that either Mr N Lewisohn had called the Applicant a bitch and there was no apology or there were breaches over many years over the matters of bonus and salary and the incident on 20 February 1992 was the final straw. It was a clear case of constructive dismissal."
and then the rest of the paragraph sets out the Respondents' submissions.In the next paragraph where, having referred to the submissions, we find this as to his submissions:
"There was a conflict of evidence [referring to what happened on 20th November] and while we accept that the Applicant felt that the remarks made referred to her, we make no finding in respect of the words used. We do however find that the situation was not sufficiently serious for the Applicant to treat the incident as a significant breach going to the root of her contract of employment or which showed that the Respondent no longer intended to be bound by one or more of the essential terms of the contract."
What Mr Ciumei says, and we think he says it with some force, is that that reflects a finding which the Tribunal may have been entitled to make that the incident was not one of itself as to justify constructive dismissal, but looked at as a final straw on top of all the failures to pay bonuses, it might have been. In that context he refers us to a passage in the judgment of Glidewell LJ Lewis v. Motorworld Garages Ltd [1986] ICR 157 at page 169F where Glidewell LJ said:
"The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of that implied term?"
Mr Ciumei says that that was a submission made by him, put before the Tribunal and not dealt with in its Reasons. In these circumstances Mr Ciumei asks that the case be remitted to the Industrial Tribunal for a further hearing.Mr Lewisohn, a Director who appears for the Respondents, has made some submissions on the facts but has made no submissions in response to Mr Ciumei's submissions of law in which we find there is considerable force. In the circumstances we have come to the conclusion that a proper decision in this case is to remit the case to an industrial tribunal for a fresh hearing before a different tribunal. To that extent this appeal is allowed.