McClymont v Fenchurch Group Services Ltd [1997] UKEAT 1419_96_1605

EAT
McClymont v Fenchurch Group Services Ltd
[1997] UKEAT 1419_96_1605 · 1997-05-16
MR JUSTICE LINDSAY : In the list for today there is a preliminary hearing ex-parte , of Mr McClymont's case, in which he is the Appellant and the Fenchurch Group Services Ltd is the Respondent. It was listed for 10.30 am. The position now is that it is 12 minutes past 2. Nothing has been heard from Mr McClymont. No contact has been received, so far as our officers can tell us, and so we therefore have to deal with the appeal in his absence.The position is that on 2 November 1995 Mr McClymont signed an IT1; he claimed constructive dismissal. He had left employment on 23 October 1995. In that IT1 he also makes a claim for what he calls a "civil claim". It is not a matter within the jurisdiction of the Industrial Tribunal and has concerned the Industrial Tribunal no further and concerns us not at all. His case for constructive dismissal came before the Industrial Tribunal on 10 May 1996 and then (although this is not explained) there was a very great gap and the matter was returned to the Industrial Tribunal on 11 September 1996 and then, the Chairman, Mr D. Hewitt, with members, met again on 25 September 1996. Their decision was unanimous that the Applicant, Mr McClymont was not dismissed and his claim for unfair dismissal therefore failed.Mr McClymont then applied to the Industrial Tribunal to review that decision and on 11 December 1996 the Chairman refused that application on the ground that it had no reasonable prospect of success.On 28 November, after the hearing, Mr McClymont signed a very lengthy Notice of Appeal. He has applied by letter asking that we should take into our consideration a letter of 10 September 1996 sent to a Miss Maclean by Fenchurch Group Services Ltd. Miss Maclean had addressed the Industrial Tribunal as his friend, on his behalf. She was a fellow-employee of Mr McClymont at Fenchurch Group Services Ltd. We do take that letter into consideration. We regard it as wholly irrelevant to the appeal.To come back to the decision of the Industrial Tribunal, after a series of warnings to Mr McClymont for bad timekeeping and for sickness absence in relation to his attendance over a period from August 1991 to October 1993 (being a series of events that had led to a disciplinary warning and a disciplinary hearing) all seemed, for a time, to be going well but then there was a fresh series of events.The first of them was the event of the "pink sack". That is dealt with in paragraph 17 of the Industrial Tribunal's decision:
"On 26 January 1995 there was an incident involving 'pink sacks' which are used for temporary storage of confidential files. The Applicant was told to move the sacks from the lobby area of the basement to a separate room. The Applicant was not made aware that he was required to do this immediately, the result being that the sacks were removed by the cleaners, along with ordinary black refuse sacks. The Applicant received a final warning as a result of this incident."
Then, there was the checklist incident. As for that, the Tribunal at paragraph 20 says this:
""It had been company practice for several years to have a daily checklist of tasks requiring attention. This extends to several pages. It is poorly prepared in that whilst the majority of tasks incorporate the word 'check', a few do not. Moreover, the checklist as at the autumn of 1995 was not up to date. Having listened carefully to all the evidence on this point, we are satisfied that the Applicant knew that only a few of the tasks were his responsibility to actually carry out and the majority of tasks simply required checking on his part. We also accept the Respondents evidence that whenever the matter was discussed with the Applicant, he refused to recognise the distinction between checking and the actual carrying out of particular tasks. The use of the checklist on a daily basis had by the autumn of 1995 become irregular. There had been considerable refurbishment in 1995 and Mr Walford asked Mr Bettis to tell the Applicant to complete the checklist on a daily basis. The Applicant refused to do so. He was reminded of the requirement on 6 October."
That was the second of the incidents. Then, there was the "overalls" position. As to that, paragraph 21 deals with it:
"The company is keen that reasonable standards of dress are observed, particularly at its head office at The Minories which clients frequent. Uniform had been issued to administrative staff with effect from January 1994. A small part of the Applicant's duties involved 'dirty work' and when carrying out this work the Applicant was required to wear overalls. On at least one occasion the Applicant wore casual clothes for this purpose and was told this was unacceptable. On the Applicant's own evidence he refused on a number of occasions to wear overalls."
These situations led to a row on 13 October 1995. Mr McClymont refused to use the checklist. There was then a disciplinary hearing arranged for 16 October 1995. Then it was re-scheduled for 20 October and on 20 October there was a lengthy hearing. As to that the Tribunal found this in paragraph 25:
"The hearing on 20 October was lengthy. Summarised, the Applicant was told that he must comply with the Respondents' requests both with regard to the checklist and overalls. With regard to the checklist it was agreed that it required up-dating and the company agreed to do this once the Applicant had accepted in principle that the checklist was his responsibility. The Applicant maintained his refusal to wear overalls, but eventually the Respondents persuaded him to take away catalogues illustrating the kind of protective clothing available in order for him to reconsider the matter. The disciplinary hearing in general terms was adjourned with the Applicant remaining on suspension."
Then there are events which are set out (I am not going to read them out; they are perfectly adequately summarised in paragraphs 27, 28 and 29 of the findings of the Industrial Tribunal) and the position was that on 22 October Mr McClymont resigned, claiming constructive dismissal. We need only, in relation to the events that led to that, point to paragraphs 27, 28 and 29 of the Industrial Tribunal's Extended Reasons.The Industrial Tribunal then directed itself in paragraph 30. They say:
"The Tribunal needs to determine whether or not the Applicant was dismissed. In this case the Applicant resigned, but in circumstances where he claims constructive dismissal by the Respondents."
They then refer to what they describe as "the leading authority", Western Excavating (ECC) Limited v Sharpe [1978] IRLR 27 CA, and they cite verbatim from the judgment of Lord Denning MR in that case. It cannot be argued that they misdirected themselves. The Tribunal then conclude in paragraphs 31 and 32:
"The Tribunal does not believe there was any conduct on the part of the Respondents that amounts to a significant breach going to the root of the contract of employment.
The Tribunal is unanimously of the view that the Applicant resigned of his own volition; there was no dismissal and the claim of unfair dismissal therefore fails."Mr McClymont, to judge from his Notice of Appeal, fails to comprehend that the Employment Appeal Tribunal is not a Court or Tribunal before which there can be a sort of action-replay of what might have occurred below. We do not entertain matters merely of fact. We have looked at the matter to see whether there is any error of law that we can find. We can find none. It would not be appropriate that this should go to a full hearing.Accordingly, we dismiss the appeal.