White v Ministry Of Defence [1995] UKEAT 886_94_0310

EAT
White v Ministry Of Defence
[1995] UKEAT 886_94_0310 · 1995-10-03
MR JUSTICE MAURICE KAY: This is an appeal from a decision of the Industrial Tribunal held at London South which dismissed the Applicant's claim for unfair dismissal. The Applicant Mrs Christine White was employed by the Ministry of Defence (M.O.D.) as a telephonist at the Royal Military Academy at Sandhurst. She began her employment in September 1981. Some years later the M.O.D. began to take steps which would result in the removal of the telephonist function from the Royal Military Academy at Sandhurst to Aldershot. It was the intention of the M.O.D. that the employees employed at Sandhurst should follow the work to Aldershot. That is something which Mrs White was not willing to do. She lived at all material times in Eversley Cross near Basingstoke.In 1992 there was extensive correspondence and procedures were followed to determine the position between the parties so far as the proposed move was concerned. It is sufficient for present purposes if we say that at all times Mrs White manifested her unwillingness to move to Aldershot. The bundle of documents contains numerous examples of that manifestation. The final period of correspondence took place in December 1992 after the Permanent Under Secretary of State had rejected Mrs White's claim in the grievance procedure. On 2 December 1992 she wrote to Major Drake at Aldershot in the following terms:
"I have now received a reply from the Permanent Under Secretary of State rejecting my grievance against your requirement that I must work at Aldershot. I do not accept this decision and I will now take the matter to an Industrial Tribunal."
That letter elicited a reply requiring her to report for duty at Aldershot on 4 January 1993. Mrs White wrote again to Major Drake on 15 December in these terms:
"Thank you for your letter dated 8 December 1992 giving my reporting date at the Aldershot exchange from Monday 4 January 1993. I shall not be reporting to Aldershot. Will you formally acknowledge my letter to you of 2 December 1992 in which I stated that my grievance has now been taken to an Industrial Tribunal."
Major Drake again responded in similar terms to previously. On 24 December 1992 Mrs White wrote a further letter in which she said:
"Having taken legal advice I will be attending my contractual place of employment the Royal Military Academy Sandhurst on 4 January 1993. If I am refused entry or my place of work is closed I will deem this as being unfair dismissal and will take my place to an Industrial Tribunal."
True to her word Mrs White did attend at Sandhurst on 4 January. Events there are dealt with in paragraph 5 of the Tribunal's findings. At one stage it was suggested on behalf of Mrs White that she was actually dismissed that day by a Mrs Evans at Sandhurst. However that is not what the Tribunal found and that point is not pursued on her behalf here. Be that as it may, the upshot of events on 4 January is that it was made clear to Mrs White that there was no work for her save at Aldershot and in accordance with her previous indications she did not proceed to Aldershot. Indeed four days later she issued an Originating Application in the Industrial Tribunal although that did not come to the notice of the M.O.D. until some time later.The positions adopted by the parties before the Industrial Tribunal were that Mrs White contended that she had been dismissed as a result of the events we have described, either by an act of direct dismissal or constructively. The M.O.D. on the other hand contended that there had been no dismissal before the issue of the originating application; and that Mrs White remained an employee until the Ministry itself took steps to terminate her contract a month or two after the issue of the Originating Application. It is commonground between the parties, and always was, that if there were no dismissal until after the 7 January 1993, then there could be no application to the Tribunal.The hearing before the Tribunal took some 3 days and led to a reserved decision. Essentially that decision falls into two parts. We shall deal with them in reverse order. The Tribunal came to the decision that under the Terms of her Contract of Employment, Mrs White was not obliged to work in Aldershot and that the requirement that she should do so amounted to a fundamental breach of contract on the part of the Ministry. However, the Tribunal further came to the conclusion that that was not a matter that could sustain a successful application by Mrs White because the finding in the Tribunal was that there had been no dismissal prior to the issue of the Originating Application. Accordingly the Tribunal were of the view that they had no jurisdiction to decide the issue of fairness or unfairness.Mrs White appeals to this Tribunal so far as that latter finding is concerned and claims that she was constructively dismissed, prior to the issue of her originating application, and that her claim ought therefore to succeed. The M.O.D. by cross-appeal, contend that the Tribunal finding about a fundamental breach of contract on its part was wrong and ought to be reconsidered by this Tribunal.We deal first with the question of breach of contract. It is apparent from the documents including the report of the decision of the Tribunal, and also from what we have been told by both Counsel today, that the question of whether or not Mrs White was contractually obliged to go to Aldershot took up a great deal of time before the Industrial Tribunal. There was considerable evidence about it and that evidence was investigated by the Tribunal and dealt with extensively between paragraph 8 and 11 of the decision. Mrs White was by classification a non-mobile worker in the Ministry's employment and the terms and conditions that formed part of her contract adverted to the circumstances of relocation. In paragraph 081 of the manual it was provided:"Non-mobile staff are liable for permanent transfer only to posts within reasonable daily travelling distance of their homes."...and my paragraph 0182 it was further provided:In deciding whether a new posting is within reasonable daily travelling distance of the officers home the department should take into account(a) the extent to which the distance exceeds that to the old establishment(b) whether the officers home can be regarded as within the dormitory area of the new establishment and(c) whether reasonable transport facilities are available from his home to his new place of work. In individual cases it may be necessary to take into account physical disability e.g. of transport facilities or the physical arrangements of a new establishment are unsuitable for a registered disabled person who requires special facilities."It is clear from the terms of their decision that the Tribunal considered these provisions with care. They came to the conclusion that Mrs White had no case under (a) and (b) but were far more troubled by the provisions of (c) namely "whether reasonable transport facilities are available from her home to the new place of work". In that connection the Tribunal carried out a careful consideration of the evidence about public transport and came to the conclusion that the available bus journeys could not be regarded as "reasonable transport facilities". They then went on to consider private car journeys having regard to the fact that there was evidence that Mrs White was accustomed to travel to work at Sandhurst by car, driven either by herself or by her husband, and that there were two cars in the family. In paragraph 11 of the decision this aspect of the evidence is carefully considered. The Tribunal state:"... The evidence however did not satisfy us that the Applicant had sufficiently regular use of a car to enable her to be able to say with certainty that she could travel by car every day with regularity... The evidence did not satisfy us that the Applicant had a sufficiently regular or satisfactory means of transport by car. There were others in the family who used the car. We feel that this ability to have regular use of a car was not sufficiently explored by the Respondents. The Respondents did not themselves produce any evidence to show that the Applicant did regularly have the use of a car."...The next passage in the decision is the one in respect of which Miss Eady on behalf of the Ministry seeks to attack the Tribunal's finding. The Tribunal stated:"... The tests which we have adopt under paragraph 0182 is subjective i.e. we must consider not some hypothetical employee but the actual employee and her particular conditions. Our view therefore is that having regard to our findings that the bus journeys were not reasonable transport facilities and that the Applicant did not have sufficiently regular use of a serviceable and reliable car to enable her to travel by this means. Had she had a serviceable and reliable car then we think that the journey would be one which she could and should have attempted to undertake. On this basis therefore we would find that the Respondents were in breach of contract in that reasonable transport facilities were not available and that consequently in dismissing the Applicant the Respondents unfairly dismissed her or if the correct conclusion is that the Applicant resigned then she resigned in circumstances where she was entitled to resign because of the Respondents fundamental breach of contract and on this basis has also been unfairly dismissed."...Miss Eady's attack on this passage so far as its early part is concerned, is directed at the word "subjective". It is clear to this Tribunal that any employer seeking to interpret and apply the contractual provisions would have to have regard to the circumstances of the individual employee, bearing in mind the express provisions to which I have referred. It is also clear to this Tribunal that whilst the word "subjective" appears in paragraph 11, the Industrial Tribunal was concerned at all times to apply a test of reasonableness to the circumstances of the Applicant and not simply to accept her views as to whether or not a move was appropriate or possible. Indeed, in part, the Tribunal rejected the Applicant's view to the extent that it depended upon her nervousness as a driver.Looking at this aspect of the case in the round, and having considered the detailed findings made by the Tribunal upon copious evidence, we have come to the conclusion that this is not a matter upon which we ought to go behind their decision. It is essentially a matter of fact in respect of which a careful investigation was carried out and we therefore dismiss the cross-appeal.We now turn to the question of whether there was a dismissal. Before this Tribunal the only basis for a dismissal that has been pursued by Miss Heal on behalf of the Applicant is constructive dismissal. Accordingly for the Applicant to have succeeded on this issue before the Industrial Tribunal, she would have to have established that she had terminated her Contract of Employment in circumstances such that she was entitled to terminate it, by reason of the Ministry's conduct. We were referred to various authorities on that issue. The most helpful of which is the decision of this Tribunal in Walker v Josiah Wedgwood & Sons Ltd [1978] ICR744 . The argument advanced on behalf of the Ministry in the present case is that Mrs White could not bring herself within Section 55(2)(c) of the Employment Protection (Consolidation) Act 1978 because, Miss Eady submits, if there was a fundamental breach by the Ministry of a repudiatory kind, Mrs White did not accept that repudiation so as to terminate the contract. It is this issue with which this Tribunal was concerned in the Walker case and some assistance is to be found in considering the words of this Tribunal on that occasion reported at page 751 where it is stated:"There was also extensive argument upon the validity of what was the deciding ground in the first part of the industrial tribunal's reasons, namely the failure of the employee to indicate to the employers the attitude which he was taking upon the matter. But of course that matter must now be regarded not as a failure, if there was a failure, to communicate to the employers the conclusion of the employee that the conduct of his employers was impermissible from an industrial point of view, but a failure, if there was a failure, to indicate to the employers that he regarded their conduct as a repudiation of the contractual obligations which they had towards him and that he was accepting that repudiation as bringing the state of contractual relations to an end. No one suggests that any formal assertion to that effect is either necessary or appropriate. The question has been whether it is sufficient merely to act in such a way as to indicate that that contractual relationship will not be continued, or whether it is necessary to do more than that, namely to indicate that the reason why it will not be continued is the conduct of the employers which is regarded as unjustified by the employee. If that is the effect of what is done, however informally it is done, then on any analysis it must be sufficient."...
"We think for our part that it is at least requisite that the employee should leave because of the breach of the employer's relevant duty to him, and that this should demonstrably be the case. It is not sufficient, we think, if he merely leaves--at any rate in any circumstances at all similar to the present. And secondly, we think it is not sufficient if he leaves in circumstances which indicate some ground for his leaving other than the breach of the employer's obligations to him"
For the Ministry in the present case, Miss Eady submits that this is essentially a matter of fact that was resolved by the Industrial Tribunal in the Ministry's favour and in particular, in that part of the Tribunal's decision in paragraph 7 where it was stated:"... In our view far more express words than this (the letter of 24 December 1992) are required before it can be said that the Applicant had resigned."...We have given careful consideration to the Tribunal's approach to this issue. The relevant part of their decision is to be found in paragraphs 6 and 7, especially the latter. It is a matter of regret that the Tribunal resorted to the language of "resignation" rather than the specific terms of Section 55(2)(c). It may be this which led the Tribunal to investigate whether the "resignation" had itself been accepted. We also think that it is a defect in the approach of the Industrial Tribunal that they concentrated almost exclusively on the letter of 24 December 1992. The case for the Applicant is that it is that letter together with the documents which preceded it, and the events of the 4 January 1993 which entitled her to a finding of constructive dismissal. There has been some debate before us as to whether this Tribunal is bound by the finding in paragraph 7 of the Industrial Tribunal's decision as a finding of fact.We take the view that as always in cases such as this, there are mixed issues of fact and law. Taking an overview in particular of paragraph 7 of the decision, we have come to the conclusion that as a matter of law, it was not open to the Industrial Tribunal to find that there was no acceptance of a repudiatory breach in this case. If the Tribunal had properly considered the history of the matter before and after the 24 December 1992, it would have been led inexorably to the conclusion that the repudiatory breach which it found to exist, had been accepted by Mrs White in a manner which terminated the contract and resulted in a necessary finding of constructive dismissal under Section 55(2)(c). We emphasise in this regard that no formality need be established by an employee in these circumstances and we take the view that when one considers the words of this Tribunal in Walker v Josiah Wedgwood & Sons Ltd it is quite clear that the steps Mrs White took before, on and after 22 December 1992 were sufficient to communicate her acceptance of a repudiatory breach as terminating the contract and that therefore she was constructively dismissed.In the course of her submissions, Miss Eady has referred to a subsequent letter written by Mrs White after she had issued her Originating Application and before the Ministry were aware of that fact. We do not consider that that letter gives rise to or rekindles any ambiguity in this matter. We are satisfied that it was the case that she left the Ministry's employment because of a repudiatory breach and had communicated that fact and that cause to them. Accordingly Mrs White's appeal is allowed.This necessitates our consideration of what should happen next. Miss Heal submits that effectively we should now find and declare that there was an unfair dismissal and remit the matter to the Industrial Tribunal purely on the question of remedy. Miss Eady on the other hand submits that findings such as we have made entitle Mrs White to a finding of dismissal but not of unfair dismissal and that the whole of that issue of unfairness should now be remitted to the Industrial Tribunal. Her submission is essentially that, given our findings, Section 55 issues are now resolved but there has been no resolution of or indeed consideration of Section 57 issues.In this regard it is necessary to remind ourselves of the provisions of Section 57. Given that there is on our findings a dismissal, in determining whether that dismissal was fair or unfair it is for the employer to show what was the reason for the dismissal and that it was a reason falling within sub-Section 2 or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held. It may be that there are cases of constructive dismissal in which the reason for the dismissal is not the repudiatory breach of the employer. In the present case we have to have regard to the evidence that was received in the Industrial Tribunal; the findings of fact in that Tribunal and indeed the positions adopted by the parties in the hearing before that Tribunal and today. When the M.O.D. responded to Mrs White's originating application they admitted that there had been a dismissal but contended that the reason was "absence without leave". That was a reference to the period after 4 January and before 4 March 1993.We have considered with care Miss Eady's submission. It seems to us that having regard to the Ministry's case and to the evidence that was before the Tribunal, in the circumstances of this case the M.O.D. in seeking to establish the reason for the dismissal under Section 57(1) would not be able to establish any reason other than their own repudiatory breach, having regard to the fact that it is the position as at 4 January 1993 that is for consideration. We consider that there is no prospect of the Ministry establishing either a sub-Section 2 reason or any other substantial reason which would justify dismissal of Mrs White, and that it would therefore be pointless to remit to the Industrial Tribunal the issue of fairness or unfairness. In conclusion therefore, we have come to the decision that the consequence of our allowing Mrs White's appeal and dismissing the Ministry's cross-appeal in the circumstances of this case, is that this matter should now be remitted to the Industrial Tribunal on the basis that there has been a finding of unfair dismissal and that the remit of the Industrial Tribunal is now confined to the question of remedy.