Whitbread Plc (t/a Thresher) v Gullyes [1994] UKEAT 478_92_1905

EAT
Whitbread Plc (t/a Thresher) v Gullyes
[1994] UKEAT 478_92_1905 · 1994-05-19
HIS HONOUR JUDGE PEPPITT QC This is an appeal from a decision of the London (South) Industrial Tribunal sent to the parties on 21st May 1992. The Tribunal decided that the Respondent, Miss Gullyes, had been constructively dismissed by the Appellants and that the dismissal was unfair.The Respondent joined the Appellants in April 1986 as a senior assistant at a Thresher shop in Hanwell. In September 1986 she was promoted to the post of Branch Manager at the Appellants' Highview branch in Greenford where she remained for nearly four years. The Respondent was happy and successful at the Highview branch, Mr Hornsby, the Appellants' area sales manager, expressing the view that she had `turned it around'.In June 1990 a vacancy occurred for the post of manager at a larger Thresher branch in Greenford Avenue, Hanwell. This branch was known as `017 Dale'. It had been the subject of staff and operational problems with the result that no experienced person was prepared to volunteer to become its manager.Mr Hornsby offered the post to the Respondent. The Tribunal found:(i)although Mr Hornsby had a high regard for the Respondent his main reason for offering her the post was the absence of any suitable alternative;(ii)he made the offer knowing that the Respondent did not then have sufficient experience to take the post of manager at 017 Dale without considerable support and back-up;(iii)in all the circumstances Mr Hornsby made an error of judgment in offering the 017 Dale post to the Respondent.The Respondent accepted the offer of the post with misgivings and only upon Mr Hornsby's assurance that he would transfer her to another branch if she so requested. She would not have accepted the post if she had been made fully aware of the difficulties ahead of her.The Respondent did her best at 017 Dale. Although her contract required her to work 39 hours per week she was expected to, and in fact did, work for more. In her originating summons the Respondent stated that her actual weekly working hours averaged 76 hours and this was not challenged by the Appellants. But she was provided by Mr Hornsby with only 148, later increased to 152, staff hours by way of assistance. This the Tribunal found:
"... was insufficient to enable the (Respondent) to properly carry out her contractual duties which included inter alia the opening and closing of the shop at set hours throughout the week including Sundays, the hiring of and allocation of work to staff, the preparation of staff rotas, supervision of staff, overseeing the deliveries of stock, stock-taking, cash and sales control, banking of cash, associated paperwork and security. ..."
The Respondent went on holiday between 21st August and 15th September 1990. Whilst she was away Mr Hornsby transferred the two most experienced members of the staff at 017 Dale to other branches. He did so without waiting to consult the Respondent on her return from holiday. This, the Tribunal found, placed the Respondent `in an untenable position'. She resigned some six weeks later on 26th October 1990, her request for a transfer to another branch having been rejected.It was against this factual background that the Tribunal decided that the Respondent had been constructively dismissed. This led inevitably to a finding of unfair dismissal. The Tribunal was referred by way of written submissions to the proper test for a finding of constructive dismissal as set out in Western Excavating v. Sharp [1978] ICR 221 and reached its finding to this effect by way of a repudiatory breach by the Appellants of an implied term in the contract of employment that the Appellants should not behave in such a way as to prevent the Respondent from being able to carry out her part of the contract. [per Wood J in White v. Reflecting Road Studs [1991] ICR 733 at p.741G] or as Knox J put in United Bank v. Akhtar [1989] IRLR 507 at p.511, paragraph 42 `would not frustrate the respondent's attempt to perform the contract`.The words used by the Tribunal in defining the Appellants' breach of the contract of employment were:"It could be argued that the (Appellants) employer had by its conduct made it difficult or impossible for the (Respondent) to carry out her contractual duties and that therefore the (Appellants) were in breach of an implied term of the (Respondent's) contract of employment `not to frustrate' her attempt to perform her contractual duties. ... On balance, after weighing up all the evidence we have come to the unanimous decision that the (Respondent) was constructively dismissed".Mr Morris, on behalf of the Appellants submitted to us that the implied term relied upon by the Tribunal applied only where the employers had made it impossible for the employee to perform the contract. Here the Appellants' conduct, as found by the Tribunal, merely made such performance very difficult. The Respondent, he said, was able to perform the contract, albeit with difficulty, until she resigned in October 1990.We doubt whether this implied term should be subjected to quite so literal a construction. In United Bank v. Akhtar (supra), for example, the term was found to have been breached when employers sought to invoke a mobility clause in the employee's contract of employment by transferring him from Leeds to Birmingham with no more than a week-end's notice. The employee could have complied, but only at great personal inconvenience. But we agree with Mr Morris that there must be conduct on the part of the employers the effect of which is more than to make performance of the contract by the employee difficult. It seems to us however that there are findings of fact by the Tribunal which are capable of satisfying this stricter test. The transfer of the two experienced assistants put the Applicant in `an untenable position'. [para.6(9)] She resigned because `(the Appellants) did not give her the support and the resources necessary for fulfilling the terms of her contract ...". Mr Hornsby did not allocate sufficient staff hours to enable the applicant to effectively perform her contractual duties'. [para. 7]. It seems to us that these findings justify the Tribunal's decision that having promoted the Respondent to a post which they knew she was insufficiently experienced to undertake without proper back-up and having failed to provide that back-up the Appellants effectively prevented the Respondent from performing her contract to any acceptable extent. In our judgment, the Tribunal's decision can be justified on this ground.But if we are wrong about this, we are unanimously of the view that the Appellants by their conduct were guilty of repudiatory breach of an implied term of trust and confidence in the contract of employment. The extent of the term was defined by Browne-Wilkinson J. in Wood v. WM Car Services (Peterborough) Ltd [1982] ICR 693:"The employer should not without reasonable and proper cause conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of trust between employer and employee".Mr Morris did not suggest that we could not consider the Tribunal's findings in the light of this alternative implied term but he submitted that the evidence did not support a finding that it had been breached. Mr Hornsby had confidence in the Respondent throughout and trusted her implicitly. He, on the Appellants' behalf, was entitled to decide how their business should be run and if he chose to accept something less than full performance of her contract by the Respondent it was not for the Tribunal to interfere.With great respect to Mr Morris we consider that these submissions approach the question from the wrong direction. It was the Respondent who lost confidence in the Appellants not the Appellants who lost confidence in her. She found herself in a job which was too much for her without proper back-up. Not only was that back-up not forthcoming but she also lost the services of her two most experienced assistants. Without the support she was entitled to expect from the Appellants her position became untenable. So she resigned. It seems to us that her resignation on the findings made by the Tribunal could be said to have been the direct result of a repudiatory breach by the Appellants of this implied term of trust and confidence. We would therefore have upheld the Tribunal's decision on this ground too.In the circumstances the appeal must stand dismissed. We refuse the Respondent's application for her costs under Rule 34(1) of the Employment Appeal Tribunal Rules 1993, but order legal aid taxation of those costs.