Boast v J D Consultancy Ltd [1994] UKEAT 95_94_1207

EAT

Boast v J D Consultancy Ltd

[1994] UKEAT 95_94_1207 · 1994-07-12

MR JUSTICE MUMMERY (PRESIDENT) : This is an appeal by Mr Christopher Boast against the decision of the Industrial Tribunal held at Nottingham on 24 November and 9 December 1993.

For full reasons notified to the parties on 14 December, the Tribunal unanimously decided that Mr Boast had not been unfairly dismissed by his former employer, J D Consultancy Ltd, valuers and rating assessors, a firm controlled by a Mr Hinks.

Mr Boast was dissatisfied with the result of his case and, therefore, appealed by a letter dated 24 January 1994, which sets out the grounds of his complaints against the decision.

This is the preliminary hearing of the appeal. It is held to decide whether Mr Boast has an arguable point of law. This Tribunal only has jurisdiction to hear appeals on points of law in the decision of Industrial Tribunals or arising in proceedings before them. If Mr Boast is unable to show at this preliminary hearing that he has an arguable point, no purpose would be served by allowing this appeal to proceed to a full hearing at which the respondents are represented.

Mr Boast has appeared in person and has submitted that there are reasonably arguable grounds for his appeal. The background to the proceedings is that Mr Boast was employed as a rating and valuation consultant by the respondent from 1 January 1987 until 11 May 1993. On 11 May 1993 Mr Boast signed a short letter stating that he resigned from J D Consultancy Ltd with immediate effect. That letter of resignation preceded two important letters contained in the bundle of documents which Mr Boast has provided to the Tribunal.

It appears from the two letters, sent on Mr Boast's behalf by his solicitor, Mr Benson of Browne Jacobson, solicitors, in Nottingham that his case was of constructive dismissal. In other words, that he had not resigned of his own accord, but he had been forced into this position by his employer's repudiatory breach of contract, going to the root of the contract of employment, which he had accepted and notified Mr Hinks of J D Consultancy Ltd, he was treating as repudiatory breach. The two documents are first a letter of 21 April 1993, a two-page letter sent by Mr Benson to J D Consultancy, setting out details of Mr Boast's complaints about his treatment by his employers. The letter states at the end that the purpose of it is to register Mr Boast's objections to a disciplinary hearing proposed to be held and other matters referred to in the letter and to make it quite clear that:

"If you take any action detrimental to Mr Boast or place unreasonable demands on him, for example, asking him to drive up to Bolton every day when it is quite unnecessary for him to do so or imposing on him an impossible work load we shall advise our client that you have rendered it impossible for him to continue to work for the company and that he would have an unanswerable claim for compensation for constructive dismissal."

The letter finishes:

"We trust that once you have considered the points in this letter you will agree that this disciplinary hearing should not take place and that no further unreasonable demands will be placed upon our client."

J D Consultancy Ltd replied, through Mr Hinks, direct to Mr Boast in a letter of 26 April, acknowledging receipt of the solicitor's letter and making certain comments. It is not necessary to read that letter. The crucial letter is one sent on 11 May by Mr Boast's solicitors to J D Consultancy Ltd. Various points are made in the letter, which then concludes:

"In our view your actions clearly constitute a breach of your contractual obligations towards Mr Boast, in particular in relation to mutual trust and confidence. We have therefore advised Mr Boast that he has a claim against the company for constructive dismissal. Accordingly, we enclose notice of his resignation herewith. You will be receiving an application to the Industrial Tribunal in due course."

That letter was followed up as indicated by the issue of an originating application, which was presented to the Industrial Tribunal on 29 July 1993. In the notice of application, details are set out of the basis of Mr Boast's employment by J D Consultancy Ltd and the basis of his complaints that he had been constructively dismissed. The case is made clear by reference to the letters of 21 April and 11 May. It is alleged that as a result of the incidents referred to in the application:

"Mr Boast decided to resign with immediate effect by notice sent on 11 May. It is submitted that Mr Boast was entitled to resign without notice by reason of the respondent's conduct and that he was constructively dismissed within the meaning of section 55(2)(a) of the Employment Protection (Consolidation) Act 1978 and that the dismissal was unfair."

The claim was contested. A notice of appearance dated 13 September 1993 stated the grounds on which the application was resisted. The allegations against the employer were denied. It was contended that there was no fundamental breach of contract to warrant Mr Boast resigning and claiming constructive dismissal. In any case, if there was a dismissal, the respondent contended that there was a sufficient reason for the dismissal and it was fair and reasonable in all the circumstances.

The issues were simple and clear. They were resolved by the Tribunal. The Tribunal set out the factual background to the claim. In paragraph 4 the Tribunal stated this:

"His application for alleged constructive dismissal deals with a variety of matters, but Mr Benson [that is Mr Boast's solicitor] agreed with me that his claim for constructive dismissal is based upon the letter which Mr Benson wrote to the respondents on 21 April 1993."

The Tribunal reviewed the evidence about the complaints made in that letter and made findings of fact as follows:

"15. We are satisfied, and find, that there was nothing in this case that amounted to a fundamental breach of contract by the respondents justifying the applicant terminating his employment. The job clearly did not suit the applicant and, in particular, he wished to be free to return home every night. That is of course his privilege but it does not amount, in our view, to constructive dismissal..

16. We therefore find that the applicant was not constructively dismissed and cannot therefore have been unfairly dismissed. He terminated his employment because it suited his own convenience to do so."

The reference to the fact that Mr Boast wished to be free to return home every night is to a dispute between him and the respondent as to the occasions on which he could be required to work away from home.

In his submissions, Mr Boast has made a number of points. He has said a number of times that there are inconsistencies in the respondent's evidence and that there are many inaccuracies of fact in the evidence given on the respondent's side. Our comment on that point is that it does not amount to a question of law which we can deal with on an appeal. It is for the Industrial Tribunal to decide the facts. It is for them to deal with inconsistencies and allegations of inaccuracies or untruths. Once they have found the facts, that is binding on this Tribunal. There is no ground of appeal relating to factual inaccuracy or inconsistency.

The second point which Mr Boast made was that he had wished, at the hearing, to go over many matters, but found himself bound by his solicitor's agreement with the Chairman of the Tribunal that the claim for constructive dismissal was based on the letter of 21 April 1993. On this point our comment is that this seems to be more a complaint by Mr Boast about the way his case was handled by his solicitor than it is about an error of law in the decision of the Tribunal. We do not know whether Mr Boast has any complaint against his solicitor or not. We do not know what instructions were given by Mr Boast to Mr Benson or what advice was given by Mr Benson to Mr Boast. All we can say is that the letters of 21 April and 11 May set out the basis of a complaint of constructive dismissal. If Mr Boast had wished at the hearing to go over matters ante-dating 21 April 1993 - to go back to matters, say, of the previous Autumn, he may well have been faced with legal difficulties on the law of constructive dismissal. It is part of that law that, if it is contended by an employee that the employer is in repudiatory breach, the employee should communicate his acceptance of that breach as terminating the contract within a reasonable time of the alleged breaches. The timing of the letters of 21 April and 11 May would comply with that obligation. There may be a doubt as to whether complaints going back to October of the previous year could comply with the obligation of notification of acceptance within a reasonable time.

We find that Mr Boast's complaint that his solicitor should not have agreed that the letter of 21 April was the basis of constructive dismissal is not a ground of appeal on a point of law.

Mr Boast also set out in his letter of appeal of 24 January this year a lot of other detailed points, which he wished to make about his employer's behaviour towards him. There is no point in dealing with those in detail for this reason: that they are all comments on alleged facts about his treatment. We are in no position to make findings of fact. We are in no position to say the Tribunal should or should not have made findings of fact. The position of the Tribunal is that on the basis on which the case was put before them, there was no constructive dismissal. That is a decision on the facts. There is not any error of law apparent on the reasoning of the Tribunal. In those circumstances there is no point in this case proceeding to a full hearing. The appeal will be dismissed.